**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

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

 

 
| TODD DESCUTNER,

             Complainant,

 

 

 

             v.

 

 

 

NEVADA GOLD MINES LLC,

              Respondent.                                      |   |   | DISCRIMINATION PROCEEDING

 

Docket No. WEST 2022-0201

MSHA Case No. WE-MD-2022-01

 

 

 

 

 

Mine: Leeville

Mine ID: 26-02512 |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

** **

**DECISION ANDORDER**

 

Appearances:              LarsonA. Welsh, Law Office of Hayes & Welsh, 199 N. Arroyo Grande Boulevard,Suite 200, Henderson, NV 89074

                                    KristinR.B. White, Fisher & Phillips LLP, 1125 17th Street, Suite 2400, Denver, CO80202

 

Before:                                    Judge Simonton

 

This case is before me upon a complaintof discrimination filed by Todd Descutner (“Descutner”) against Nevada GoldMines (“NGM”), pursuant to section 105(c)(3) of the Federal Mine Safety andHealth Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3).[1]Descutner contends that NGM terminated him for engaging in protected activity. NGMasserts that it properly terminated Descutner under the company’s progressivediscipline policy.

 

A hearing was held on December 6–7,2022, in Salt Lake City, Utah. Based on my full consideration of the testimonyand exhibits presented at hearing, the stipulations of the parties, myobservations of the demeanor of the witnesses, and the parties’ post-hearingbriefs, I find that NGM did not violate the Mine Act when it terminated Descutner.

 

**                                                      I.        ****STIPULATIONS**

 

In their prehearing submissions, theparties submitted the following joint stipulations:

 

1.             Todd Descutner was employed by NGM until his termination date ofNovember 2, 2021.

 

2.             Descutner was a “miner” as defined in sections 3(g) and 105(c) of theMine Act, 30 U.S.C. §§ 802(g), 815(c).

 

3.             NGM’s Leeville Mine is a “coal or other mine” as defined in Section3(h)(1) of the Mine Act, 30 U.S.C. § 802(h)(1).

 

4.             The Federal Mine Safety and Health Review Commission has jurisdictionover the subject matter of this case pursuant to Section 105(c)(3), 30 U.S.C. §815(c)(3) of the Mine Act.

** **

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

** **

**A.   ****Background**

** **

Nevada Gold Mines is a jointventure that formed in 2019 as a merger of two gold companies: Newmont Corp.and Barrick Gold Corp. Tr. I, 18; Respondent’s Post-Hearing Brief (“Resp. Br.”)at 2. The Leeville Mine (“Leeville” or “mine”) is an underground gold mine operatedby NGM and located in northern Nevada. Tr. I, 18–19; Resp. Br. at 2. AtLeeville, hourly miners are required to take contracted buses to work at themine site—they are not permitted to drive themselves to work. Tr. I, 23; Tr.II, 8–9. During each shift at the mine, the hourly workforce is divided into threegroups: production, development, and compliance/paste. Tr. I, 156; Resp. Br. at2. Each of these groups is supervised by a frontline supervisor, and each frontlinesupervisor reports to a general supervisor for that group. Tr. I, 155–56; Resp.Br. at 2. The general supervisors for each group report to the superintendent,who reports to the site-level mine manager. Resp. Br. at 2.

 

NGM utilizes a progressivediscipline policy for its hourly employees. Tr. II, 52; Ex. R-C. The policy delineatesthree levels—or tiers—of disciplinary action that occur before an employee’s termination.Tr. II, 52; Ex. R-C. The first is a documented verbal notice, the second is a writtennotice, and the third is a final notice, which may include a suspension fromwork. Tr. II, 52; Ex. R-C. Employees may be issued more than one level of disciplinefor a single incident. Tr. II, 83. Two separate, parallel discipline tracks areused at NGM—one for tardies, absences, and other attendance-related issues, andthe other for behavioral issues and discipline relating to property damage. Tr.II, 56.

 

Descutner worked for NGM—and NewmontCorp. prior to the merger—from 2006 until his termination in November 2021. Tr.I, 17; Jt. Stip. 1. He started at Newmont’s Deep Post Mine and began working atthe Leeville Mine in 2010. As of 2019, Descutner was a tier 4 miner in thedevelopment group at Leeville, regularly working four jobs in this role: shotcretepersonnel, haul truck driver, loader operator, and utilities. Tr. I, 19. 

To varying degrees, severalmanagement officials were involved in the events at issue in this case. DonStrong and Terry Krantz were Descutner’s immediate frontline supervisors duringthe events described below. Tr. I, 40, 54–55. Derek Dominguez was a general supervisorover development at Leeville from December 2020 through September 2021, afterwhich he became the interim superintendent. Tr. I, 157. Jeff Sorenson was afrontline supervisor for the maintenance shop. Tr. II, 148. Corey Myers was an interimgeneral supervisor from August 2021 to February 2022, after which he became a generalsupervisor. Tr. II, 142–143. Amy Armstrong was the senior human resourcebusiness partner for NGM. Tr. II, 48. 

** **

**B.   ****COVID-19Impacts on Descutner and NGM**

** **

After learning of the COVID-19pandemic in early 2020, Descutner became concerned about contracting the virusbecause of his wife’s health. Tr. I, 19–20. Descutner’s wife has asthma and anautoimmune deficiency, and her physician contacted her early in the pandemic totell her he was concerned that if she contracted COVID-19, she may not survive.Tr. I, 19–20. At that time, Descutner used approximately three months of FMLAleave to quarantine with his wife, during which time they decided that she shouldquarantine separately from him once he returned to work. Tr. I, 20. In May or earlyJune 2020, Descutner purchased a trailer so that he could live apart from hiswife. Tr. I, 20–21. He returned to work and began living in the trailer in June2020. Tr. I, 21. Descutner lived in the trailer for approximately 300 days,until he and his wife were vaccinated and moved back in with one another. Tr.I, 21. 

 

Like many employers, NGM modified itspolicies and procedures in response to the COVID-19 pandemic. In March 2020,the company stopped busing employees to work and instead used smaller lightvehicles to transport them. Tr. II, 9. In June 2020, around the time Descutnerresumed working after his FMLA leave, NGM resumed busing employees to work withits contracted bus operator, Coach. Tr. I, 26; Tr. II, 10. When these bus operationsresumed, Coach implemented and enforced COVID-19 mitigation measures on the busespursuant to state requirements. Tr. II, 11–12. The bus routes were changed sothat they made fewer stops, and the number of buses was increased to accommodatea lower maximum number of passengers on each bus. Tr. I, 27; Tr. II, 10–12; Exs.R-BB, -CC. Additionally, miners were required to wear masks on the bus and sit incertain seats to allow for social distancing. Tr. I, 27–28, 134; Tr. II, 11, 21,33–34; Ex. R-EE. At the mine site, miners were required to wear masks unlessthey were alone or could maintain six feet of distance between themselves andothers. Tr. I, 196. The maximum number of miners allowed on the “cage,” which is“a big elevator that takes [miners] underground,” was reduced from 30 to 15,and the miners on the cage were required to wear respirators. Tr. I, 23, 196. Minerswere provided with unlimited masks and respirator cartridges, as well as infraredthermometers to take their temperatures before coming in to work. Tr. I, 196–197.NGM also extended miners’ short term disability allowance and gave employees theirfull years’ worth of paid time off (“PTO”) up front so they could take thenecessary time off if they got sick. Tr. I, 197. If miners contracted COVID-19,they were required to obtain a doctor’s release to return to work. Tr. I, 133.

 

**C.   ****Descutner’sComplaints**

** **

**1.    ****December2020/January 2021 Complaints about the Buses**

** **

Descutner felt that, to his coworkersand generally in the area he lived, COVID-19 “was considered kind of a hoax, ajoke, [and] not taken very seriously.” Tr. I, 22. He was particularly concernedabout contracting COVID-19 on the bus contracted by NGM, which he was requiredto take to get to work. Tr. I, 22–23. 

 

Chantelle Carter, NGM’s transportationand logistics specialist, credibly testified that when busing resumed in June2020, the bus contractor added buses to the schedule so that each bus no longerstopped at two pickup sites and two mine sites, but rather would stop at each pickupand mine site separately. Tr. II, 8, 10–11. From June through December 2020, therewere seven buses taking miners to and from work at the two mine sites. Tr. II, 10,18–19. Prior to the pandemic, there were three. Tr. II, 8–9. In December 2020,the total number of buses was reduced from seven to six, but service to Descutner’sbus stop at Spring Creek was not impacted by this change. Tr. II, 18–19. Carterrecalled receiving occasional complaints about bus protocols that she passedalong to the bus operator, but could not recall at the hearing if she ever receivedany complaints from Descutner. Tr. II, 31–32.

 

Descutner testified about his beliefthat, beginning in June 2020, NGM was providing two buses instead of one to transportminers from the Spring Creek stop to the Leeville Mine. Tr. I, 26–27. He becamefrustrated when only one bus would arrive, which was common in the winter of 2020.Tr. I, 27. He also testified that few miners were abiding by the mask requirements.Tr. I, 27–28. When only one bus arrived, all theminers at the stop had to board the single bus, and, because “he had to get towork and that was the only way to get there,” Descutner felt forced into anuncomfortable situation. Tr. I, 27.

 

In mid- or late December 2020,Descutner was involved in an incident involving a bus driver on his way in towork. Descutner had boarded the first bus at his bus stop when a second bus arrived.He got off the first bus before it departed and boarded the second. Tr. I, 28–29.He was the only miner who rode on the second bus, and he was frustrated andupset that the bus was late. Tr. I, 29, 128. He asked the driver why she couldnot be on time, but testified that he did not yell or raise his voice at her. Tr.I, 29–31. The bus driver responded that it wasn’t her fault. Tr. I, 30. After heasked why she could not be on time, Descutner stopped talking to the bus driverand sat down. Tr. I, 29–30. Descutner testified that she “kept asking me where Iwas going,” which he interpreted as “digging at me a little,” because she didnot like his question about being on time. Tr. I, 30–31. 

 

Derek Dominguez, then a generalsupervisor over development at Leeville, testified that he and another generalsupervisor on site that morning, Zach Wright, were notified by a dispatcherthat an employee on the bus inbound from Spring Creek was being “belligerent tothe bus driver.” Tr. I, 155, 185–86. He and Wright asked the dispatcher to callthe bus operator and find out the bus number, and they then went to meet the busin the area where employees offload. Tr. I, 186. When it arrived, they saw thatDescutner was the only miner on board. Tr. I, 186. They had a conversation withDescutner about his interaction with the driver, and Descutner told them they werein a position to do something about the bus situation. Tr. I, 31–32. Descutner talkedto them about his wife’s health and testified that it seemed like Dominguez hadno empathy for him. Tr. I, 32–34. Descutner further testified that he referencedthe “Labor Department” when telling Dominguez where else he might complain. Tr.I, 34–35. 

 

            After the conversation with Dominguez and Wright,Descutner went to work; he was not disciplined for his interaction with the busdriver. Tr. I, 38–39. According to Descutner, nothing was done to address hisconcerns regarding the frequent shortage of buses and the routine lack of maskson the bus. Tr. I, 39.

 

Shortly after the incidentwith the bus driver, Descutner also complained about the buses to his supervisor,Don Strong, in either late December 2020 or early January 2021. Tr. I, 40–41.Strong did not respond to the complaint verbally, but gave him a look that Descutnerinterpreted to mean, “give it a rest.” Tr. I, 41.

** **

**2.    ****Complaintsto MSHA and Other Agencies**

** **

Between December 2020 and March2021, Descutner and his wife made numerous calls to outside organizations tocomplain about NGM’s lax enforcement of COVID-19 mitigation measures and what theybelieved to be unsafe working conditions. Tr. I, 35–38, 138–143; Ex. C-18. Theycalled Nevada’s Labor Commission, the Occupational Safety and HealthAdministration, MSHA, Nevada’s Governor, and the American Civil Liberties Union.Ex. C-18. 

** **

**3.    ****Juneor July 2021 Complaint Regarding Low Morale and Promotions**

** **

In late June or early July 2021,Descutner also raised a concern unrelated to COVID-19 protocols at a crewmeeting. Tr. I, 51. He felt that people should be “signed off” on the Tech 4 jobsthey were doing but not being paid for. Tr. I, 51–52. Descutner believed thiswas a safety concern because people who were in this situation had bad attitudes.Tr. I, 51-52. 

 

** **

**D.   ****Descutner’sConduct and Resulting Disciplinary Actions**

** **

Descutner received discipline onmultiple occasions before his termination:

** **

**1.    ****January2021 Unexcused Absence**

** **

In early January 2021, Descutner receiveddiscipline in the form of a Tier 1 documented verbal notice for an unexcused absence.Tr. I, 41; Ex. R-D. The night before his absence, Descutner experienced numerousunfortunate events related to a bad snowstorm. First, the bus taking him to hisbus stop after work got to the Spring Creek stop around 9:30 p.m., more than anhour later than usual due to the snow. Tr. I, 42. Then, when driving home from thebus stop, Descutner’s truck got stuck in the middle of the road and he had towait for a tow truck. Tr. I, 42. He finally arrived home around midnight todiscover that the power to his trailer had gone out, so he worked on that untilgoing to sleep around 2:00 a.m. Tr. I, 42–43. In order to make it to work ontime, he would have had to wake up at about 4:00 a.m. and be at the bus stop around5:00 a.m. Tr. I, 43. Descutner woke up around 5:30 a.m. and called hissupervisor, Don Strong, to request the day off work. Tr. I, 43. Descutner felt thathe needed the day off because, given how little sleep he had gotten, he was notfit for duty and could not do his job safely. Tr. I, 44. Strong told Descutnerthat he did not have any PTO and had to come in to work. Tr. I, 44. Descutnerdid not go in and received a notice of discipline the next day called a Tier 1 documentedverbal notice. Tr. I, 45–46; Ex. R-D. This discipline did not affect NGM’s laterdecision to terminate Descutner because it was attendance-related, and that typeof discipline accrues separately from behavioral and property damage-relateddiscipline. Tr. II, 56, 58–59.

** **

**2.    ****July2021 Interaction with Supervisor Krantz**

** **

In July 2021, Descutner received anotherTier 1 documented verbal notice for an inappropriate interaction with his supervisorat the time, Terry Krantz. Ex. R-E. The incident arose out of a disagreementbetween Descutner and another hourly miner, Dave Young, both of whom wereassigned to apply shotcrete that day with a third hourly miner, Jesus Cabrera. Tr.I, 49–50. When applying shotcrete, two miners drive batch trucks that supplythe material and a third operates the sprayer that applies the material to theroof and ribs of the underground mine. Tr. I, 49; Tr. II, 61. Initially, Cabrerahad agreed to spray that day, but when the miners got underground, the sprayerthey had planned to use was inoperable, and he was not authorized to use theone that was functioning. Tr. II, 62. Descutner and Young were both signed offon the functioning sprayer but got into a disagreement about who would spray thatday. Tr. I, 49; Tr. II, 62. Young called Krantz over to determine who shouldspray that day. Tr. I, 50; Tr. II, 62. Descutner complained to Krantz aboutwhat he believed to be the real issue: “miners being asked to completetasks they were not technically authorized to complete because they had notreceived the promotions they had earned.” Tr. I, 51. Krantz becamefrustrated with Descutner’s comments and raised his voice, leading Descutner toraise his voice as well. Tr. I, 52, Tr. II, 63. After some back and forth,Krantz told Descutner he was taking him to the surface, but Descutner refusedto get in the vehicle with him. Tr. I, 53; Tr. II, 63. Krantz then called Don Strong,who took Descutner up to the surface. Tr. I, 53; Tr. II, 63. 

 

Once they were on the surface, Descutnerattended a due-diligence meeting and Amy Armstrong, senior human resourcesbusiness partner at NGM, got involved. Tr. II, 60. Armstrong took ample notesduring the meeting with Descutner and the interviews she conducted with the otherminers involved. Tr. II, 65; Ex. R-K. She credibly, in a straightforward, consistentand unequivocal fashion, testified that Descutner agreed his interaction with Krantzwas inappropriate. Armstrong’s contemporaneous notes support her testimony. Tr.II, 69; Ex. R-K at 18. Descutner, Young, Cabrera, and Krantz each provided statementsconcerning the incident. Exs. R-G, R-H, R-I, R-J. Krantz was also disciplined forhis behavior relating to this incident. Tr. II, 70; Ex. R-F.

 

**3.    ****October2021 Loader Incident**

** **

On October 19, 2021, Descutner wasinvolved in an incident at the mine. Tr. I, 63. On that day, he was assigned torepair a vent bag with co-worker Garrett DeSart in the maintenance shop. Tr. I,64, 225–226; Ex. R-P. Before the repair could be made, a loader that wasblocking access to the area needed to be moved. Tr. I, 64, 227.

 

Descutner spoke to the shop supervisor,Jeff Sorenson, about moving the loader and told him, “if it’s a 9-yarder Icould move it.” Tr. I, 65. He testified Sorenson told him it was a “loader 80,it’s a 9 yarder, move it.” Tr. I, 64. Descutner was signed off to operate 9-yardloaders and asserts he did a complete equipment inspection prior to moving theloader. Tr. I, 66, 83–84. While in the shop area he did not utilize a spotterto help guide his movement of the loader. Tr. I, 68. In the process of movingthe loader approximately a hundred feet, he struck and damaged a trash dumpster.Tr. I, 66–68. After the incident occurred, Descutner was required to take adrug and alcohol test, which yielded a positive result due to a prescriptionmedication he was taking. Tr. I, 69. The issue of his positive drug and alcoholtest was later cleared up. Tr. I, 69. Descutner was sent home after the testand never returned to work at NGM. Tr. I, 70. 

 

Interim general supervisor Cory Myersconducted an initial investigation into the October 19 incident by first gatheringinformation from frontline supervisor Orry Stevens, who provided pictures ofthe incident scene as well as a statement from Descutner. Tr. II, 144. Myersobtained statements from other people who were in the area of the incident whenit occurred and looked into Descutner’s training records to see if he wassigned off on the loader involved in the incident. Tr. II, 144. After Stevens toldMyers which loader was involved, Myers could tell it was an 11-yard loader, nota 9-yard loader as Descutner believed. Tr. II, 144. 

 

A due-diligence or fact-finding meetingwas conducted to get Descutner’s input as to what happened. Present at themeeting were Descutner, Myers, interim superintendent Derek Dominguez, humanresource partner Hailey Cavaness and union representative Josh Jauer. Tr. I, 70–71,166–167; Tr. II, 73, 145; Ex. R-W. Myers conducted additional investigationinto the incident that occurred on October 21, 2021. After concluding his investigationand consulting with senior human resource partner Amy Armstrong, both Myers andArmstrong concluded that Descutner’s incident with the loader constituted four separateinfractions of NGM’s employee standards. Tr. I, 165, 176–177; Tr. II, 85–86, 120–121,151. 

 

The first infraction charged toDescutner was that he failed to conduct a pre-operational check on the loader. Tr.I, 178; Tr. II, 86, 94–95, 119–120. Descutner asserts that he did, in fact,conduct a complete equipment check prior to operating the loader and completeda pre-operational checklist card. Tr. I, 66, 83–84. He does not recall whetherhe ever turned in the card after the October 19 loader incident. Tr. I, 84, 113.No pre-operational check card could be found to confirm his assertion that hecompleted a pre-operational inspection. Tr. I, 11, 84–86, 110, 174, 178; Tr.II, 74. NGM asserted at hearing that, had Descutner actually conducted a pre-operationalinspection, he would have noticed that the loader was not one he was authorizedto operate. Tr. I, 11, 174. Second, Descutner wasnot signed off to operate the 11-yard #80 loader involved in the incident. Tr.I, 105, 165, 180–181; Ex. R-U. Descutner testified he relied on shop supervisorSorenson’s representation that the loader in question was a 9-yarder and thathe could move it. Tr. I, 65. Descutner’s testimony is in conflict with astatement Sorenson provided to Myers during NGM’s investigation of the event,in which Sorenson indicated he told Descutner the loader was a 1700 seriesloader before he moved it.[2] Tr. II, 148;Ex. R-PP. Third, Descutner failed to use a spotter when moving the loader. Tr.I, 105, 165, 178. Descutner acknowledged this infraction. Tr. I, 68, 91–92. Fourth, Descutner caused damage toNGM equipment when the loader hit and damaged a company owned dumpster. Tr. I,165, 177; Ex. R-T. Descutner acknowledged this infraction as well. Tr. I, 67–68, 92.

 

With a documented verbal disciplinenotice in his personnel file for an inappropriate interaction with a supervisorin July 2021, Descutner was already at Tier 1 of NGM’s progressive discipline policy.Tr. I, 177; Tr. II, 68,151–152; Exs. R-C, -E. Based on this one prior activediscipline and the four infractions related to the loader incident, Armstrong, Myersand Dominguez collectively met and made the decision to recommend to the minemanager that Descutner should be terminated pursuant to NGM’s progressivediscipline policy. Tr. I, 158–159, 175; Tr. II, 81–82, 84–87, 150–152; Ex. R-C.[3]Both the mine and human resource managers for NGM agreed and Descutner was terminatedfrom NGM effective November 17, 2021. Tr. I, 218; Tr. II, 87; Ex. R-V. The decisionwas communicated to Descutner in a meeting with Dominguez, Myers and Armstrong,followed by a written termination letter dated November 17, 2021. Tr. I, 72; Tr.II, 153; Ex-R-V. The specific reasons for termination were communicated toDescutner at a union grievance meeting prior to November 17. Tr. I, 72, 74. Descutner’sunion grievance challenging his termination stopped at the step two level witha board consisting of two members of NGM management and two union members. Tr.II, 93.  

 

**E.   ****MSHA’sOctober 2021 Investigation**

** **

On October 14, 2021—three days beforeDescutner’s incident involving the 11-yard #80 loader—MSHA Inspector CharlieSnare came to Leeville to investigate an anonymous hazard complaint that NGM wasnot enforcing COVID-19 pandemic guidelines. Tr. I, 190–191; Ex. C-4. Descutner testifiedhe does not remember making this complaint to MSHA. Tr. I, 59. Dominguez met withthe inspector to discuss the reason for his visit to the mine. Tr. I, 191. The inspectorexplained that they had received an anonymous complaint that NGM was notfollowing their COVID-19 policies. Tr. I, 191. The inspector informed Dominguezthat MSHA does not enforce NGM’s COVID-19 policies and stated that he wanted toexplain this to all of the miner’s representatives in a meeting at the mine. Tr.I, 191. Dominguez proceeded to pull twelve underground miners off of theirequipment for a meeting in the mine conference room. Tr. I, 192. Inspector Snareexplained to the miner’s representatives that MSHA is not responsible forenforcing any state or company COVID-19 policies and they were getting tired ofgetting “Johnnyminer” calls related to COVID-19.[4]Tr. I, 192. Snare warned the miner’s representatives that if the calls continued,he would shut the mine down until he was able to have the same conversationwith each individual miner. Tr. I, 192. Snare also conveyed to Dominguez thathe thought NGM was doing everything it could with regard to COVID-19. Tr. I, 195.

 

Descutner contends that NGM hadreason to believe that he called in the anonymous complaint to MSHA and that thisbelief, though mistaken, factored into NGM’s decision to terminate him afterthe loader incident. Complainant’s Post-Hearing Brief (“Comp. Br.”) at 17. Dominguez,Armstrong and Myers denied having any belief or suspicion that Descutner calledin the hazard complaint that prompted MSHA’s October 2021 appearance at themine site. Tr. I, 193–194; Tr. II, 87–88, 97, 100, 101–102, 152–153. Dominguez confirmedthat Descutner was the first miner who complained to him personally about COVID-19protocol enforcement issues in December 2020, when the two men discussed Descutner’scomments to the bus driver about being late. Tr. I, 216–217. However, Dominguezwas aware there was at least one other COVID-19 protocol enforcement related complaintregarding the lack of social distancing on the cage that took miners down intothe mine. Tr. I, 219–220. As a result of that complaint, NGM began requiringminers to wear respirators while riding in the cage. Tr. I, 196, 219–220. Armstrongtestified that she personally investigated COVID-19 protocol enforcementcomplaints made by miners other than Descutner. Tr. II, 97–100. 

 

Dominguez, Armstrong and Myers, thethree individuals involved in the investigation and recommendation to terminateDescutner, testified that Descutner’s December 2020 and January 2021 COVID-19 protocolenforcement complaints played no role in their October 2021 investigation or November2021 unanimous recommendation. Tr. I, 218–219; Tr. II, 100, 152–153. Armstrong andMyers testified they were not aware, at the time of the investigation or terminationrecommendation, that Descutner had previously made COVID-19 protocol enforcementcomplaints to Dominguez or supervisor Strong, respectively. Tr. II, 100, 152–153.

 

**                  III.        ****DISPOSITION**

** **

Section 105(c)(1) of the Mine Act providesthat a miner shall not be discharged or otherwise discriminated against becausethey have made a complaint regarding an alleged safety or health violation. 30U.S.C. § 815(c)(1). It specifically states: “No person shall discharge or in anymanner discriminate against or cause to be discharged or cause discriminationagainst or otherwise interfere with the exercise of the statutory rights of anyminer . . . because such miner . . . has filed or made a complaint under or relatedto this Act, including a complaint notifying the operator or the operator'sagent . . . . of an alleged danger or safety or health violation in a coal orother mine.”

 

For more than forty years, the Commissionhas utilized the *Pasula-Robinette* framework to adjudicate claims ofdiscrimination brought under section 105(c) of the Mine Act.  *Sec'y of Laboron behalf of Pasula v. Consolidation Coal Co.*, 2 FMSHRC 2786, 2799–2800(Oct. 1980), *rev'd on other grounds sub nom*;* ConsolidationCoal Co. v. Marshall*, 663 F.2d 1211 (3d Cir. 1981); *Sec'y of Labor onbehalf of Robinette v. United Castle Coal Co.*, 3 FMSHRC 805, 817–18 (Apr. 1981).Under the traditional *Pasula-Robinette* framework, a miner alleging discriminationestablished a *prima facie* case of prohibited discrimination bypresenting evidence sufficient to support a conclusion that (1) the complainantengaged in protected activity, and (2) the adverse action complained of wasmotivated in any part by the protected activity. *Jayson Turner v. Nat'lCement Co.*, 33 FMSHRC 1059, 1064 (May 2011); *Driessen v. Nev. Goldfields,Inc.*, 20 FMSHRC 324, 328 (Apr. 1998); *Pasula*,**2 FMSHRCat 2799; *Robinette*, 3 FMSHRC at 817–18. If a miner established a *primafacie* case, the operator could then rebut the case “by showing either thatno protected activity occurred or that the adverse action was in no partmotivated by the protected activity.” *Turner*, 33 FMSHRC at 1064. If theoperator could not rebut the *prima facie* case, it could neverthelessdefend affirmatively by proving that although part of its motivation was unlawful,the adverse action was also motivated by the miner’s unprotected activity, *and*it would have taken the adverse action against the miner for the unprotectedactivity alone. *Id*.; *Pasula*, 2 FMSHRC at 2799–2800. 

** **

The Ninth Circuit recently abrogatedthis longstanding framework in *Thomas v. CalPortland Co.*, 993 F.3d 1204 (9thCir. 2021) (remanding 105(c)(3) case for Commission to apply “but-for standard”).Looking to recent Supreme Court precedent, the Ninth Circuit noted that section105(c) of the Mine Act uses the term “because of” four times—each time withoutany modifiers—and concluded that it thus plainly incorporates a “but-for” causationstandard. *Id.* at 1210. Accordingly, “[s]ection 105(c)’s unambiguous textrequires a miner asserting a discrimination claim under Section 105(c) to provebut-for causation.” *Id.*at 1211. 

 

In a recent FMSHRC ALJ case, *Walkerv. Capurro Trucking*, 44 FMSHRC 1, (January 7, 2022), Judge Sullivan articulatedthe “but for” causation standard well. A discrimination complainant must showthat (1) he engaged in what is known as “protected activity” (i.e., “theexercise of statutory rights”); and (2) that the adverse action complained of (herethe Complainant's discipline and termination) was “because” of that protectedactivity. In other words, at least in cases ultimately subject to Ninth Circuitreview as this present case is, a Complainant must show that his employer wouldnot have taken the adverse action against him, “but for” the protected activityhe engaged in. *Thomas v. CalPortland Co.*, 43 FMSHRC 314 (June 2021) (ALJ)(decision on remand applying but-for standard), pet. for rev. filed Dec. 29,2021; *see also**Sec'y of Labor on behalf of Saldivar v. Grimes Rock*,*Inc.*, 43 FMSHRC 299, 302–303 (June 2021).

 

**A.   ****Protected Activity**

** **

A miner has engaged in protectedactivity if they (1) have “filed or made a complaint under or *related to*this Act, including a complaint . . . of an alleged danger or safety or healthviolation;” (2) are “the subject of medical evaluations and potential transferunder a standard published pursuant to section 101;” (3) have “instituted orcaused to be instituted any proceeding under or related to this Act or hastestified or is about to testify in any such proceeding;” or (4) have“exercised on behalf of himself or others . . . any statutory right afforded bythis Act.” 30 U.S.C. § 815(c)(1) (emphasis added). 

 

Unquestionably, raising safetyconcerns at work constitutes “protected activity” within the ambit of section105(c). *Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp.*, 38FMSHRC 1914, 1922 (2016) (“Raisingsafety concerns is paradigmatic ‘protected activity’ within the meaning of section105(c)(2).”).

 

 

 

 

**1.    ****December 2020**–**January 2021 COVID Protocol Related Complaints**

** **

It is undisputed that Descutner raised****concerns to then General Supervisor Dominguez in December****2020 relatingto COVID-19 protocols on the buses that transported miners to the mine site. Descutneralso complained about the buses to his supervisor, Don Strong, in either late December2020 or early January 2021. Tr. I, 40–41. Specifically, he was concerned aboutthe lack of mask-wearing and that, at times, only one bus would show up whenthere should have been two to insure proper social distancing. Tr. I, 22–23. 

** **

Between December 2020 and March2021, Descutner and his wife made numerous calls to outside organizations tocomplain about NGM’s failure to enforce COVID-19 mitigation measures and what theybelieved to be unsafe working conditions. Tr. I, 35–38, 138–143; Ex. C-18. Theycalled Nevada’s Labor Commission, the Occupational Safety and Health Administration,MSHA, Nevada’s Governor, and the American Civil Liberties Union. Ex. C-18. 

 

NGM asserts that Descutner’s expressedconcerns over COVID-19 related protocols are beyond the purview of MSHA and thereforeare not protected by the Mine Act. Resp. Br. at 15. Specifically, NGM arguesthere is no provision under the Mine Act or any MSHA mandatory standard thatspecifically addresses exposure to COVID-19. Resp. Br. at 16. They go on toargue that MSHA’s actions on October 21, 2021—whereby an inspector, as anauthorized representative of MSHA, informed both NGM management and designatedminers’ representatives that MSHA is not responsible for enforcing company orstate COVID-19 policy—supports the conclusion that Descutner’s protocol-relatedcomplaints do not constitute protected activity under the Mine Act. Resp. Br. at17. I disagree.

 

The legislative history of the MineAct states that Congress intended the scope of protected activity to be broadlyinterpreted. In enacting section 105(c) of the Act, Congress specifically notedthat: “if miners are to be encouraged to be active in matters of safety and health,they must be protected against any possible discrimination which they might sufferas a result of their participation.” S.Rep. No. 95–181 at 35. Congress furtherstated that the Act is“illustrative and not exclusive,” and should be “construed expansively toassure that miners will not be inhibited in any way in exercising any rightsafforded by the legislation.” *Id*. at 36. 

 

So long as a miner has a good faith belief that a safety hazardexists, they are protected in bringing their concern to the operator. *Robinette,* 3FMSHRC 803; *Gilbert v. FMSHRC*, 866 F.2d 1433 (D.C. Cir. 1989). Itis well established that a “good faith belief simply means [an] honest beliefthat a hazard exists.” *Id.*Whether perceived hazards are *actually*unsafe is not determinative of the protected status of a complaint. *Sec’yof Labor obo McGill v.**U.S. Steel Mining Co.*,23 FMSHRC 981, 986 (2001); *Consolidation Coal Co. v. Marshall*, 663 F.2d at1215. Alleged hazards are considered to be “related to” the Act, and are thereforeprotected by 105(c)(1). *Cullinan v. Peabody Twentymile Mining LLC*, 36 FMSHRC 205, 207.

 

First, it is important to note thatDescutner’s complaints to NGM management and outside agencies regarding thefailure of miners to follow state-mandated and company-established COVID -19 protocolsoccurred as early as December 2020—well before MSHA appeared at the mine inOctober 2021 to announce to the miners’ representatives that they would not enforceCOVID-19 protocols. Tr. I, 28–37, 40–41, Tr. I, 190–191; Exs. C-4, -18; Ex. R-DD.Second, it is undisputed Descutner had well-founded safety related reasons forlodging his complaints—especially given that his spouse was immunocompromised. Tr.I, 19–38. Without question, I find Descutner acted reasonably and with the goodfaith (albeit mistaken) belief that the failure to follow COVID-19 protocolswas a health andissue under MSHA’s Mine Act purview. NGM haspresented no evidence supporting its argument that Descutner had any reason tobelieve otherwise. I find that Descutner engaged in protected activity as it relatesto his complaints to Dominguez and Strong from December 2020 extending intoearly 2021. This activity included complaints regarding the number of busesavailable for transportation to maintain social distancing, the failure of minersto maintain that distancing and the failure to abide by mask protocols mandatedby the state and company.

**2.    ****June or July 2021 Complaint Regarding Low Morale and Promotions**

** **

In late June or early July 2021,Descutner raised a concern unrelated to COVID-19 protocols at a crew meeting. Tr.I, 51. He felt that people should be “signed off” on the Tech 4 jobs they weredoing but not being paid for. Tr. I, 51–52. Descutner believed this was asafety concern because people who were in this situation had bad attitudes. Tr.I, 51–52. 

** **

****Despite the broad scope cited above regardingDescutner’s complaints related to COVID-19 protocols, I cannot agree that his complaintsregarding failure to promote miners and resulting morale issues meet the broadstandard of protected activity in this case. These complaints are simply too tangentialto rise to the level of a protected activity under the Mine Act. Other than hisown declarations at hearing, Descutner has failed to proffer any connection betweenlow employee morale and a real or perceived risk to the health and safety ofminers.

** **

Accordingly, I find insufficient evidenceto conclude that Descutner’s expressed concerns in June or July 2021 about lowmorale and inadequate promotions was protected activity under the Mine Act. 

 

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

** **

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

 

            “Discharge is perhaps the clearest form of adverseaction prohibited by the plain language of the Mine Act.” *Driessen*, 20FMSHRC at 329. It is undisputed that after he first complained about the lackof COVID-19 protocol enforcement by NGM in December 2020, Descutner was subjectto discipline beginning in January 2021. On January 6,2021, Descutner was issued a Tier 1 documented verbal notice for an unexcusedabsence. Tr. I, Ex. R-D. On July 20, 2021, Descutner was issued a Tier 1documented verbal notice for an inappropriate interaction with a supervisor. Tr.I, Ex. R-E. On November 2, 2021, Descutner was ultimately terminated from employmentwith NGM for violating NGM employee standards related to the October 19, 2021, loaderincident. Tr. I, Ex. R-V. Descutner has clearly been subjected to adverseactions dating as far back as January 6, 2021. 

 

Having established both protectedactivity and adverse actions related to discipline and discharge, Descutner mustnow demonstrate by a preponderance of evidence that “but for” his protectedactivity he would not have been disciplined or terminated from employment withNGM. 

 

In evaluating whether a causalconnection exists between the protected activity and the adverse action, the Commissionlooks to four factors: “(1) the mine operator’s knowledge of the protectedactivity; (2) the mine operator’s hostility or ‘animus’ toward the protectedactivity; (3) the timing of the adverse action in relation to the protected activity;and (4) the mine operator’s disparate treatment of the miner.” *CumberlandRiver Coal Co.*, 712 F.3d 311, 318 (6th Cir. 2013); *see also Sec'yof Labor on behalf of Chacon v. Phelps Dodge Corp.*, 3 FMSHRC 2508, 2510–2512(Nov. 1981), *rev'd on other grounds*, 709 F.2d 86 (D.C. Cir.1983). I will examine these factors in turn.

** **

**1.    ****Knowledgeof Protected Activity**

** **

NGM does not dispute that Descutnerexpressed concerns to management officials about miners failing to follow stateand company established COVID-19 protocols on the buses. Tr. I, 28–37, 40–41, 190–191.As discussed above, I find that Descutner’s expressed concerns related to COVID-19protocol constitute protected activity and that NGM had knowledge of Descutner’sprotected activity. 

** **

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

** **

Descutner argues that every time heengaged in protected activity, he was soon thereafter

subject to discipline which ultimately led to the terminationof his employment. In essence, Descutner asserts that the discipline he receivedand his resulting termination would not have occurred had he not engaged inprotected activity.[5] Tr. I, 92; Comp.Br. at 2. 

 

After considering all of theevidence and testimony, I do not agree with Descutner’s assertions. As notedabove, I found that Descutner did engage in protected activity in December 2020and January 2021 when he complained to Dominguez and Strong, respectively,about the failure of NGM to enforce state and company-mandated COVID-19protocols. At each instance, Descutner was met with, at most, indifference or lackof motivation by Dominguez and Strong to address his complaints. Tr. I, 33–34,39–41, 47–48. In other words, Descutner failed to proffer any evidence beyondhis own bare assertions of any animus on the part of NGM toward his protectedactivity as it relates to any of the discipline he received. 

 

The first noted discipline issuedto Descutner after he expressed concerns related to COVID-19 protocol was aTier 1 documented verbal notice on January 6, 2021, for an unexcused absence. Tr.I, 41–46. Ex. R-D. While Descutner provided a reasonable explanation at hearingfor his unexcused absence, the fact remains he had exhausted his PTO. Thus, hissupervisor Strong would not approve Descutner’s absence. Tr. I, 42–44. It is undisputedthat NGM supervisors have the discretion to approve or disapprove absences. Tr.II, 56–57. Descutner testified Strong had previously allowed him days off eventhough he had exhausted his PTO. Tr. I, 44–45. Yet later, on cross examination,Descutner stated he did have PTO prior to this incident when he previouslyasked for and was granted days off. Tr. I, 137–138. Descutner’s supervisor Strongdid not testify, nor were any leave record exhibits proffered on this issue. Therecord is left unclear as to whether Strong approved some absences after Descutnerexhausted his PTO and, if so, whether specific circumstances justified the approvalof those absences. Whether the approved absences in question occurred prior toor after Descutner engaged in protected activity is also an unresolved question.

Descutner invites the Court to draw, from theseindeterminate facts, an inference that Strong’s actions were marked byhostility. I decline the invitation. The burden of proof is onDescutner to demonstrate by a preponderance of evidence, not an inference, thathe was denied time off because of his protected activity. Descutner has simplyfailed to meet his burden here as it relates to the unexcused absence hereceived on January 6, 2021. 

            On July 20, 2021, Descutner was issued a Tier 1documented verbal notice for an inappropriate interaction with a supervisor,Terry Krantz. Ex. R-E; Tr. I, 54. Descutner does not dispute that the eventtook place related to his above-referenced concerns regarding the morale ofworkers not being promoted or compensated for getting certified to operateequipment. Tr. I, 51–52. In addition, he acknowledged that he engaged in the verbalaltercation with supervisor Krantz. Tr. I, 49–52. However, his testimony expressesa belief that he was provoked into the altercation by Krantz and so should nothave been disciplined. Tr. I, 53–54. Krantz was also disciplined for thealtercation with a July 21, 2021, letter of concern. Ex. R-F. Even if provokedthere are no indicia this event or resulting discipline was in any way relatedto Descutner’s COVID-19-related protocol complaints to Dominguez and Strongfrom December 2020 or January 2021. Descutner has failed to meet his burden ofproof that but for his protected activity, he would not have been issued this documentedverbal notice. 

 

            Finally, on November 2, 2021, Descutner was ultimatelyterminated from employment for violating NGM employee standards related to bothhis July 20, 2021, discipline as well the October 19, 2021, loader incident. Specifically,with regard to his loader incident he was cited with four separate and specificinfractions: (1) Unauthorized operation of equipment; (2) Failure to use aspotter; (3) Failure to conduct a pre-operations check; and (4) Damaging companyproperty. Tr. I, 165, 176–177; Tr. II, 85–86, 120–121, 151.Ex. R-V. Descutner admitted that he failed to use a spotter and damagedcompany property. Tr. I, 67–68, 91–92. However, he disputes the other twoinfractions, testifying that he relied on Sorenson’s statement that the loaderwas a 9-yard loader and that he did, in fact, conduct a pre-operations check ofthe equipment before moving the loader. Tr. I, 64–66, 83–84. The statement Sorensonallegedly made to Descutner that the loader was a 9-yarder is disputed by NGM. Sorensondid not testify. However, supervisor Myers, who conducted the loader incident investigation,testified that when interviewed, Sorenson stated he told Descutner only that itwas a 1700 series loader. Tr. II, 148–149; Ex. R-PP. Dominguez convincingly testifiedthat, “regardless of what someone tells you, it is the miner’s responsibilityto know what kind of equipment they are getting on to operate and to insurethey are signed off or authorized to operate the machinery.” Tr. I, 176. Descutner’sco-worker who was present during the loader incident, Garrett DeSart, corroboratedDominguez by testifying that a supervisor is not authorized to allow a miner tooperate a piece of equipment they are not signed off on or certified to operate.Tr. I, 180–181, 230–231. Both DeSart and Armstrong testified that if a miner hasany question or concern about whether they are authorized to operate a piece ofequipment, they can simply contact dispatch to confirm their status on the pieceof equipment they intend to operate. Tr. I, 231; Tr. II, 85. DeSart further testifiedthat if he is ever asked by management to operate a piece of equipment he isnot authorized to operate, he merely explains that to the manager and they findsomeone else who is signed off on the equipment to operate it. Tr. I, 231. Ifind that even if Sorenson did mistakenly tell Descutner the loader in questionwas a 9-yard loader, it was Descutner’s responsibility to ensure he wasauthorized or signed off on the loader to operate it. This leads to the criticalimportance of the pre-operational examination infraction. 

 

During the hearing, NGM presented comparisonphotos showing the differences between a 9-yard loader and the 11-yard #80 loaderinvolved in the incident to support their conclusion that Descutner did not doa pre-operational inspection of the loader before operating it. Ex. R-S. NGMmaintains that had he conducted a pre-operational inspection he would havenoticed the obvious differences between the 11-yard #80 loader and a 9-yard loaderhe was authorized to operate. Tr. I, 11, 174. I find that the photos illustrateno less than seven differences that a casual observer could detect in examiningboth pieces of equipment. Ex. R-S. Four of the differences are especially compelling:(1) the difference in the number of steps used to access the loader cabs; (2)the control panel or dashboards in each loader; (3) the number of pedals usedto operate the loaders (11-yard loader #80 has two pedals while 9-yard loadershave three); and (4) the width of the buckets on the front of loaders. Ex. R-S.Armstrong testified that during the due-diligence meeting with Descutner, whenasked if he noticed anything specific about the #80 11-yard loader, heresponded, “I thought it was pretty big, thought the bucket volume was different.”Tr. II, 94–95; Ex. R-W. 

 

At hearing, when asked about how hefailed to observe the differences between the loaders during his pre-operationalinspection, Descutner’s responses were unconvincing given the number of obviousdifferences between the loaders, especially if he had conducted a thoroughpre-operational inspection as he asserts. Tr. I, 79–83. Specifically, he testifiedonce Sorenson confirmed for him it was a 9-yard loader (a point of contentiondiscussed above), he was looking for safety defects—not differences. He stated helooked at the tires, but failed to see the three-inch tire height difference. Tr.I, 79, 81. Further, “When I was in the cab, I was basically doing a brake testand I was, you know, these fuel - - they say check your gauge, but your gauges work.Sometimes you just look at them and see if there’s anything reading bad. Thebackup camera was the same, you know, the controls and everything that I usedwere all in the same place.” Tr. I, 80–81. With regard to his failure to noticethe different number of pedals and the difference in steps leading up into the cabhe stated: 

 

The thing is I wasnot operating this piece of equipment for work and that third pedal is a D brake.So, what a D brake is if you go into a pile and you want to still use your acceleratorpower you can use that so you don’t – you’re not pushing forward on yourbrakes, you don’t have to kick it in neutral where, you know, that’s an extrastep. I was only moving it a hundred feet. I had no need for that third pedal. AllI needed was the brake and the accelerator to move it and get it out of the way,and that’s all. And when you’re sitting in those, you can’t really just look downand see that pedal. And when you’re climbing in those, you gotta focus on3-pont contact because they’re very tight, there’s not a lot of room, there’s alot of metal. So, you gotta just – you’re focusing on getting in, you’re notfocused – you’re not standing there or looking down and looking at it. 

 

Tr. I, 81–82.

 

The different-sized buckets, thedifferent number of steps, the different number of operational pedals, thedifferent control panels between the 11-yard #80 loader and 9-yard loader can clearlybe observed in the record comparison photos proffered by NGM. Ex. R-S. Of particularnote with regard to the pedals, and in direct conflict with Descutner’s above testimonyon this issue, Dominguez in a straightforward, unequivocal and credible fashiontestified: 

 

So, between the 9-yardand the 11-yard I guess it would be - - to explain it, it’s kind of thedifference between a manual versus an automatic. The 9-yard loader has threepedals. It’s got a gas pedal, a brake pedal, and a declutch brake pedal, and the11-yard just has the throttle pedal and the declutch brake pedal. So, the properprocedure for starting the 9-yard loader is putting your feet on the brake andthe declutch brake pedal to keep the machine from potentially lurching when youstart it. 

 

Tr. I, 172.

 

I also credit Dominguez’s testimonyspecifically describing the control panel differences between the two loaders: 

 

A.    . . . the11-yard loader has a digital control spring for the gauges and systems in themachine and it also has a back-up camera and back-up screen in it.

Q. What about the 9-yard?What does it have?

 

A.The 9-yard’s got analogue gauges, the switches for the lights and various functionsare in different spots, and that machine did not have a - - backup camera in it.

 

Q.When a - - miner goes to move, like the miner goes to move the loader, let’ssay loader 80 here, the 11-yard, and turns it on, do the gauges come on?

 

A.    Yes. So onloader - - on loader – the 9-yard loaders, the gauges do what’s called a sweep.The needles will move back and forth. And the 11-yard loader is the screenphysically comes on like you turn on a television and then it shows you your gauges.

 

Tr. I, 170–171.

 

I credit the photos as well as thesupporting testimony of Myers, Dominguez and Armstrong over Descutner’sattempted explanation of overlooked differences, and I find that it was reasonablefor NGM to conclude Descutner failed to do a pre-operational examination. Tr.I, 169–174; Tr. II, 74–77, 149–150. At a minimum, if he did in fact conduct anexamination, it was cursory and ineffective. 

 

Descutner asserts that because he madeCOVID-19 protocol-related complaints in December 2020 and January 2021, managementhad reason to suspect he was the one who complained to MSHA, prompting them tovisit the mine in October 2021 and threaten to shut the mine down if furthercomplaints were submitted. Comp. Br. at 16. This undisputed and unfortunate threatby MSHA to shut down the mine just two weeks prior to Descutner’s terminationcertainly created a scenario of *potential*animus or hostility towardDescutner. However, there is absolutely no indicia management believed it wasDescutner who made the anonymous complaint that prompted the MSHA site inspection.

 

Indeed, both Dominguez and Armstrong—who,along with Myers, recommended that Descutner be terminated—credibly testified ina consistent and straightforward fashion that other miners had complained aboutthe lack of mask-wearing and social distancing. Tr. I, 219–220. Dominguez statedhe had no reason to think Descutner called in the October 2021 hazard complaintbecause there was a percentage of, “people on site that were strong about COVID-19policies. So, it could have been somebody off our site, it could have been aspouse. It doesn’t have to just be the miner.” Tr. I, 193–194. Armstrong testifiedthat NGM received several complaints from miners other than Descutner thatCOVID-19 protocols were not being followed. She specifically testified about twodifferent instances between January and October 2021 when she investigatedcomplaints that miners were not wearing masks or social distancing as required.These were not at the Leeville mine site. Tr. II, 97–100, 126. Further, Armstrongtestified on cross examination that she heard grumblings at the Leeville minesite regarding masks and social distancing during the time NGM made use oflight vehicles to transport miners to the mine site. Tr. II, 127–128. 

 

 Neither Armstrong nor Myers, who conductedthe investigation of Descutner’s loader incident and recommended to Dominguezthat Descutner be terminated from employment, were aware of Descutner’sDecember 2020 or January 2021 bus-related COVID-19 protocol complaints toDominguez and Strong. Tr. II, 100, 126, 152–153. Dominguez, for his part, crediblytestified convincingly, unequivocally and without reservation that Descutner’sCOVID-19 protocol complaints had no bearing on the decision to recommend his removalfrom employment. Tr. I, 218. I find no evidence to support Descutner’s suspicionsthat his December 2020 and January 2021 complaints some eight to nine months priorhad anything to do with MSHA’s October 2021 site inspection, threat to shut themine down or that NGM management officials Armstrong and Myers involved inrecommending his termination had any awareness of his prior complaints or, inDominguez’s case, used those complaints as motivation to terminate Descutner. 

 

Even recognizing MSHA’s inflammatorythreats as fodder for potential protected activity animus or hostility by NGM, otherthan through inference, I find no evidence Descutner’s protected activity directlyor indirectly led to either his discipline or termination from employment. Descutnerhas simply failed to prove by a preponderance of evidence that but for his protectedactivity he would not have been disciplined or terminated. In fact, the preponderanceof the evidence demonstrates but for his own actions of an inappropriate interactionwith a supervisor and the loader incident he would still be an NGM employee. 

** **

**3.    ****Timing**

** **

Descutner was first disciplined on January6, 2021, for an unexcused absence within weeks of complaining to Dominguezabout the lack of mask-wearing and social distancing on the transportation buses.Tr. I, 41–45, 58; Ex. R-D. Descutner continued to complain to his supervisor Strongin January 2021 and was next disciplined on July 20, 2021, for an inappropriateinteraction with supervisor Krantz. Tr. I, 48–55, 59–69; Exs. R-E, -G, -H, -I, -J,-K. Finally, Descutner was terminated from employment on November 17, 2021,some eight to nine months after his last recognized protected activity andwithin weeks of MSHA threatening to shut down the mine if they received anymoreCOVID-19 protocol related complaints. Given that it is undisputed Descutnercomplained in December 2020 and was first disciplined on January 6, 2021, I findsufficient evidence to determine via temporal proximity that it was certainlypossible Descutner’s protected activity played a role in the three documented disciplinaryevents presented in this case. The Commission does not apply “hard and fast criteriain determining coincidence in time between protected activity and subsequentadverse action when assessing an illegal motive.” *Hicks v. Cobra Mining, Inc.*,13 FMSHRC 523, 531 (Apr. 1991). Accordingly, I acknowledge and find that acoincidence in time exists in this case.

 

**4.   DisparateTreatment**

** **

Descutner has proffered alleged instancesof disparate treatment. “Typical forms of disparate treatment are encounteredwhere employees guilty of the same, or more serious, offenses than the allegeddiscriminatee escape the disciplinary fate which befalls the latter.” *Chacon*,3 FMSHRC at 2512. At hearing, comparator evidence was presented with a focus onDescutner’s coworkers Steve Mann and Rowan Gardner. Tr. I, 183–184, 210–212; Tr.II, 102–104, 123. 

 

Mann, in the process of moving ahaul truck out of the tire shop, did not conduct a pre-operational inspection ofthe vehicle, failed to obtain a spotter and while operating the truck damaged aportable toilet. Tr. I, 183. NGM cited him for three infractions putting him ata Tier 3 final written notice. Tr. I, 183; Ex. R-Z. Mann’s notice of disciplinealso stated he altered the scene of an incident by driving away after making contactwith the portable toilet. Ex. R-Z. Both Dominguez and Armstrong testified thiswas not counted as a separate infraction because he stopped the haul truck assoon as he realized that he hit the portable toilet. Tr. I, 184; Tr. II, 131–133.Mann had no other active discipline in his employment record. Thus, NGM determinedthe single incident with the haul truck did not merit termination. Tr. I, 138; Tr.II, 131, 133. Descutner argues Mann should have received a fourth infractionfor altering the scene of an incident. Comp. Br. at 21. 

 

Gardner, while operating a haul truck,pulled into and out of a shop without using a spotter. While exiting the shop,the truck made contact with the fire door frame causing property damage to thedoor frame. Ex. R-Y. Gardner received a Tier 2 written notice of discipline. Ex.R-Y. Descutner argues Gardner should have received a Tier 3 final writtennotice because pulling into and out of the shop without a spotter should havebeen considered two separate infractions. Comp. Br. at 22. Armstrong testifiedthat they decided the failure to use a spotter was one infraction. Tr. II, 105.

 

I credit the testimony of bothDominguez and Armstrong regarding the distinctions in discipline for Mann and Armstrong’scomparator testimony regarding Gardner. Their testimony was straightforward,consistent and unequivocal. It is important to first note that Descutner hadprior active discipline in his record while these comparators did not. Second,Descutner’s four loader incident infractions were each defined elements or separateand distinct violations of NGM’s policies. Exs. R-C, R-L. Descutner, to hiscredit, admitted to two of the infractions – failure to obtain a spotter andthat his actions caused property damage. Tr. I, 67–68, 91–92. 

 

The other two infractions, unauthorizedoperation of equipment and failure to conduct a pre-operations check, arecontested here. For the reasons previously stated, I find that it was Descutner’sresponsibility to ensure he was authorized to move the loader at issue in thiscase and that he failed to conduct an effective or adequate pre-operationscheck on it. I further find that if Descutner, a well-experienced miner, had infact conducted a viable pre-operation inspection of the 11-yard #80 loader he wouldhave recognized it was not a 9-yard loader and concluded he could not operatethe loader, even for a brief time, to move it out of the way. 

 

Descutner raises numerous othercomparators in his post-hearing brief not referenced or presented during the evidentiarypresentation of his case. Employee # 73710 is one of those comparators. *See*Comp. Br. at 22. The only reference to employee #73710 during the hearing is throughRespondent’s exhibit HH which is a chart that lists employees disciplined fornot being signed off to operate particular equipment. Tr. II, 106; Ex. R-HH. Descutnerargues in his brief that employee #73710 was issued a Tier 2 written noticeeven though four separate NGM policies were violated. Comp. Br. at 22. Specifically,employee #73710 was written up for: (1) directing an employee, “to complete atask on a powder truck that he knew the employee was not signed off on ortrained on”, (2) directing an employee to operate a truck without clear guidance;(3) a lapse in communication; and (4) a “broken window.” The exact descriptionlisted in exhibit HH follows:

 

When acting as alead man on 6/7/22 (redacted name) directed an employee to complete a task on apowder truck that he knew the employee was not signed off on or trained on. (Redactedname) directed the employee to operate the powder truck without clear guidanceand proper documentation needed to operate that piece of equipment. Lapse incommunication that occurred on the transfer raise near miss that resulted in a brokenwindow.

 

Ex. R-HH.

 

            There are several critical points to make aboutthis comparison. First and foremost, there is no testimony by any witness toexplain the number of infractions counted by NGM for purposes of issuing theTier 2 written notice. The written description referenced above could easily beinterpreted to count “without clear guidance” and a “lapse in communication” asone infraction or step instead of two as Descutner argues. Without testimony toaddress this discipline, the Court has no way of assessing how NGM viewed this eventor determined the number of infractions or steps to assess. Nor can the Courtassess any level of credibility to the testimony when the testimony does not exist.

 

            Second, the Court notes that employee #73710worked at the Meikle mine site not Leeville thus Armstrong, who was the leadNGM management official in charge of Descutner’s loader incident discipline determinationprocess, was not involved in employee #73710’s discipline. Tr. II, 106–107; Ex.R-HH. In fact, Armstrong testified Descutner’s loader incident was the only investigationshe had personal experience with that involved the issue of operating equipmentwithout being signed off. Ex. R-HH. In that light, Descutner argues the minerwho actually was directed to drive the powder truck without being signed off asauthorized to drive the vehicle was not disciplined. Comp. Br. at 26. This isyet another assertion made in Descutner’s post-hearing brief without any testimonyor evidence in the hearing record for the Court to properly weigh the reasonsfor the actions or lack of disciplinary action on the part of NGM. I amconfined to weighing the evidence and testimony presented during theevidentiary hearing rather than making an inference based on an unexplainedoutcome raised in a post-hearing brief. I cannot and will not infer disparatetreatment under such circumstances. 

 

            Third, it bears repeating that Descutner had notonly four infractions related to the loader incident but prior active disciplinein his record for an inappropriate interaction with a supervisor. There are noindicia employee #73710 or any of the other comparators to whom Descutnerpoints had prior active discipline in their record. Again, Descutner has theburden of proof by a preponderance of evidence. The preponderance of evidence inno way demonstrates that employee #73710 was treated more favorably undersimilar circumstances than was Descutner. 

 

            Specifically, with regard to Descutner’sadmitted failure to utilize a spotter during the October 2021 loader incident,he asserts he was treated less favorably than his co-worker Desart who was workingwith him at the time of the loader incident. Comp. Br. at 22–23. Desart testifiedhe could not recall a specific instance in the six years he has worked at NGM wherehe ever used a spotter but that he may have once or twice. Tr. I, 236. At thetime of the loader incident, he was operating a scissor lift, a large piece ofequipment, without a spotter but was not disciplined. Tr. I, 228. However,Descutner, in his own due-diligence meeting about the loader incident, whenasked whether Desart had a spotter responded: “I don’t think so I think Jeffpulled right up in the bay. He was not really in the shop area, he was in thewash bay. A lot of the time you do not need one there – he was in [the] entranceof [the] shop.” Ex. R-W. Descutner, by his own words, makes the distinction betweenhis own circumstance and Desart’s, making his post-hearing argument on this pointmisleading and disingenuous. 

 

            Another comparator Descutner raises with regardto the spotter infraction is employee #104914. Comp. Br. at 23. This employeewas given a Tier I documented verbal notice for causing damage to a fire doorwhile attempting to pull into the shop. Ex. R-II; Tr. II, 125. The referenced exhibitstates the employee failed to use a spotter. Ex. R-II. However, Armstrong testified:. . . [T]echnically he wasn’t going into the shop yet, he was trying to getlined up so that then he could call a spotter to get him in, and he ended updoing damage while trying to get lined up.” Tr. II, 108. Descutner argueslikewise he did not move loader 80 into the shop yet he was still disciplinedfor not having a spotter. Comp. Br. at 23. However, Descutner admitted he didnot get a spotter and fully believed and understood that NGM’s policy requireda spotter while moving the Loader 80 within the shop itself. In regard to thisissue, he testified at hearing about his admission, referring to a written statementhe wrote on the loader incident statement form:  

 

Q.There’s a description, it looks like, that you wrote of the events. Will youread the last two lines, please?

 

A.    Sure. “Did nothave a spotter, did not ask for one. My bad.”

Q. Can you explainto me, please?

 

A.Well, I mean, if you screw up, you gotta own it. I mean, you gotta be - - and Ididn’t have a spotter, so it was my bad. I mean, I do believe that a lot ofthings could have been different, but the thought of mine is that I didn’t makesure I had a spotter, so yeah. 

 

Q.  So you acceptresponsibility for it?

A.  I do. 

Tr. I, 87; Exs. R-O, R-W.

 

            The bottom line is employee #104914 is not asimilarly situated comparator because Descutner was moving a loader already withinthe shop itself while #104914 had not yet pulled into the shop where a spotterwas required. In addition, as noted above, both during the investigation of theloader incident as well as at the hearing, Descutner freely admitted he waswrong for not engaging a spotter when moving the loader within the shop. Tr. I,87; Ex. R-W. Now, in his post-hearing brief, I am being asked to ignore thatadmission and determine instead that the failure to utilize a spotter should nothave been one of the charged infractions that NGM found and relied upon toterminate his employment. This I will not do. 

 

            Descutner’s post-hearing brief goes into greatdetail about various other comparators related to each of the four infractionsor steps he was charged with in regard to the loader incident. Comp. Br. at 22–27.Post-hearing briefs are for summation and argument only and are not considered partof the record as evidence. Just as noted above with employee #73710 there is norecord testimony from any witness which addresses any of these additional comparators.Accordingly, I find the very limited comparator evidence in the record to beunpersuasive. 

 

            In sum, Complainant has failed to show by a preponderanceof the evidence that he was treated less favorably than similarly situated individualswho had not engaged in protected activity. Descutner is the only miner who hadprior active discipline in his record and was issued a Tier 3 level final noticebased on four separate and distinct infractions or violations of NGM’s employeepolicies. Interim superintendent Dominguez testified that with Descutner’s prioractive discipline he could have been terminated with just three additional infractionsor violations related to the loader incident rather than four that NGM ultimatelycharged him with. Tr. I, 181–182. I find not one comparator proffered byDescutner had the same or similar record as his.

 

 For the reasons noted above, Descutnerhas failed by a preponderance of evidence to demonstrate he was treated less favorablyunder similar circumstances than his co-workers who did not engage in protectedactivity. I find that he was not subject to disparate treatment. 

 

**C. Conclusion**

** **

Despite valiant efforts, Descutnerhas failed to show that his protected activity played any part in NGM’sdecision to discipline and ultimately terminate him, let alone that but-for hisprotected activity, he would not have been disciplined or removed from employment.

** **

** **

**ORDER**

** **

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

 

 

 

 

 

 

/s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

Distribution: (Electronic and Certified Mail) 

 

Kristin R.B. White, Fisher & Phillips LLP, 1125 17thStreet, Suite 2400, Denver, CO 80202 kwhite@fisherphillips.com

 

Larson A. Welsh, Law Office of Hayes & Welsh, 199 N.Arroyo Grande Boulevard, Suite 200, Henderson, NV 89074, lwelsh@lvlaw.com

 

Debra M. Amens, Amens Law, 432 S. Broad Street, Battle Mountain,NV 89820, debra@amenslawfirm.com

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[1] In this decision,the joint stipulations, transcript, Complainant’s exhibits, and Respondent’s exhibitsare abbreviated as “Jt. Stip.,” “Tr.,” “Ex. C-#,” and “Ex. R-#,” respectively. Referencesto the transcript include numerals I or II to denote the volume of the transcriptreferenced, since each day’s transcript is independently paginated. 

[2] The 1700 seriesbreaks down into sub models. Tr. II, 148–149. The 9-yard loader and the 11-yardloader are both in the 1700 series. Tr. II, 158.

[3] NGM’s employeestandards policy lists “operating or driving equipment without authorization oroutside its design criteria” as a first-time violation that may result in termination.This is one of the four infractions Descutner was charged with as a result of theloader incident. While the policy states one could be terminated for a singleviolation of this type, there is no indication that NGM ever considered removingDescutner for this reason alone. Ex. R-C.

[4] “Johnny miner” isa nickname used to refer to a miner’s rights call. Tr. I, 191.

[5] Descutner may not have necessarily raised each pointexplicitly as stand-alone evidence of animus, but I include them here to exhaustivelyanalyze his claim of discrimination. I do not find any evidence proffered byDescutner to be preponderant evidence of discriminatory motive or animus.