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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

 December 31, 2020

ORDER GRANTING TEMPORARY REINSTATEMENT

Before: Judge McCarthy

This matter is before the undersigned on the Secretary of Labor’s Application for 

Temporary Reinstatement filed on behalf of miner Kenneth R. Hawkins pursuant to section 

105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., as amended 

(“Mine Act”), and 29 C.F.R. § 2700.45. The Secretary seeks an order temporarily reinstating

Hawkins to his former position with New Point Stone Company pending the investigation and 

disposition of a Discrimination Complaint under section 105(c) of the Act. 

On October 19, 2020, Hawkins filed a Discrimination Complaint with MSHA. The Secretary 

found that the Complaint was not frivolously brought and filed an Application for Temporary 

Reinstatement (“Application”) on December 21, 2020. 

In an email on December 30, 2020, the Respondent indicated that it was waiving its right to a 

temporary reinstatement hearing and its intention, following my order of temporary 

reinstatement, to file a motion to toll the temporary reinstatement order supported by 

documentation and affidavits.

I. Statement of the Case

The Application alleges the following facts. Hawkins was a miner working at the St. 

Paul Stone quarry mine for New Point Stone Company, a mine operator within the meaning of 

the Mine Act. Application at 1-2, ¶¶ 3-5. On September 15, 2020, Hawkins was involved in a 

haul truck accident at the mine. Id. at 2, ¶ 6. On October 8, 2020, Dan Wanstrath, the mine 

owner and plant manager, held a meeting where he read a site-specific, hazard-training document

and then asked the miners, including Hawkins, to sign a training form. Hawkins refused, 

believing that signing the document “was not right” and that he should have received the training 

SECRETARY OF LABOR

 U.S. DEPARTMENT OF LABOR obo

 KENNETH R. HAWKINS,

 Complainant

v.

NEW POINT STONE COMPANY,

 Respondent

TEMPORARY REINSTATEMENT

 PROCEEDING

Docket No. LAKE 2021-0036

MSHA Case No. VINC-CD-2021-01

Mine: St. Paul Stone

Mine ID: 12-00115
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prior to the accident. Wanstrath then informed Hawkins that he no longer had a job for Hawkins. 

Id.

Hawkins then started to leave the room and, when questioned by Wanstrath, stated that he 

was going to call MSHA. Wanstrath then put his hands on Hawkins and asked him to “[s]it 

down and we will talk about it.” Id. at 3, ¶ 6. After another miner told Hawkins that he had a 

right to call MSHA, Wanstrath backed away and Hawkins left the room. Id.

Hawkins returned to the room after calling MSHA. Wanstrath then told Hawkins that 

Hawkins had already received the required training. Wanstrath then produced a training 

document dated July 20, 2020. The training document was not initialed by Hawkins, and 

Hawkins insisted that he had never had that training. Wanstrath told Hawkins to get in the truck 

and he would drive Hawkins around mine property to explain the training and then Hawkins 

could sign the document dated July 20, 2020. Hawkins again refused, stating that he was not 

going to “cover [Wanstrath’s] ass” by falsifying a document. Wanstrath then fired Hawkins, 

stating, “[t]hen, like I said earlier, I have no work for you.” Id.

Based on the above allegations, the Application states that Hawkins engaged in protected 

activity when he refused to sign the training document, believing that Wanstrath was asking him 

to falsify a document, and when he called MSHA. Id.at 2, ¶ 6. As a remedy, the Application 

requests 

that an Order of Temporary Reinstatement be issued directing the 

Respondent to reinstate [Hawkins] to the position he held 

immediately prior to his termination or to a similar position at the 

same rate of pay and with the same or equivalent duties assigned to 

him.

Id. at 3, ¶ 7.

II. Legal Principles and Analysis

Section 105(c)(2) of the Mine Act provides that, as to claims of discrimination, “if the 

Secretary finds that such complaint was not frivolously brought, the Commission, on an 

expedited basis upon application of the Secretary, shall order the immediate reinstatement of the 

miner pending final order on the complaint.” When no hearing is requested, the determination 

that the complaint is not frivolously brought is based on the contents of the Secretary’s 

application. 29 C.F.R. 2700.45(c) (2017).

The elements of a discrimination claim provide a useful framework to assess whether an 

allegation is frivolous. Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 

31 FMSHRC 1085, 1088 (Oct. 2009). To establish a prima facie case of discrimination under 

section 105(c) of the Act, a complainant must establish (1) that he or she engaged in protected 

activity and (2) that the adverse action complained of was motivated in any part by that activity. 

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), 

rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). 
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For a temporary reinstatement proceeding, the Secretary need not prove a causal nexus 

exists between the protected activity and the adverse action; the Secretary need only demonstrate 

that there is a non-frivolous issue as to the causal nexus. As explained by Judge Manning, a 

Commission judge should determine the issue of causal nexus was not frivolously brought if 

“evidence was presented to show that the adverse actions could have been motivated at least in 

part by the protected activity.” Sec’y of Labor on behalf of Bradley v. Climax Molybdenum Co., 

34 FMSHRC 2808, 2821 (Oct. 2012) (ALJ). The Commission has recognized that direct 

evidence of motivation is rarely encountered and that the only available evidence is often 

indirect. See, e.g., Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510 (Nov. 1981)., rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). The 

Commission has identified the following indicia of discriminatory intent to establish a nexus 

between the protected activity and the alleged discrimination: (1) hostility or animus toward the 

protected activity, (2) knowledge of the protected activity, and (3) coincidence in time between 

the protected activity and adverse action. Id. 

The Secretary has sufficiently demonstrated that the Application was not frivolously 

brought as to the issue of protected activity. The Application alleges that Hawkins refused to 

falsity a training document and contacted MSHA. Application at 2, ¶ 6. Section 105(c) of the 

Act, protects miners against retaliation for refusing to violate the Act or any safety or health 

regulation promulgated under it, including the refusal to falsify training documents. 

Additionally, the Application alleges that Hawkins engaged in protected activity when he 

contacted MSHA. 30 U.S.C. § 815(c)(1) (“[n]o person shall discharge or in any other manner 

discriminate against...because such miner...has filed or made a complaint under or relating to 

this Act, including a complaint notifying the operator or the operator’s agent...of an alleged 

danger or safety or health violation”). 

The Secretary has sufficiently demonstrated that the Application was not frivolously 

brought as to the issue of adverse action. The Application alleges that New Point Stone 

Company terminated Hawkins on October 8, 2020. Application at 3, ¶ 6. 

Furthermore, the Secretary has also sufficiently demonstrated that the Application was 

not frivolously brought as to the nexus between the protected activity and the adverse action. 

The termination occurred on the same date and amid Hawkin’s repeated refusals to falsify 

training documents—a protected activity that appears to be based on reasonable, good-faith 

belief.

III. Order

For the foregoing reasons, Respondent New Point Stone Company is ORDERED to 

immediately reinstate Kenneth R. Hawkins to the position he held immediately prior to his 

termination on or about October 8, 2020, or to a substantially equivalent position at the same rate 

of pay, with the same benefits, and with the same or equivalent duties assigned to him.
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This Order of Temporary Reinstatement is not open-ended. It will end upon final order 

on the underlying discrimination complaint as set forth in section 105(c)(2) of the Act. 

30 U.S.C. § 815(c)(2). Therefore, the Secretary must promptly determine whether or not he will 

file a complaint with the Commission under section 105(c)(2) of the Act and so advise Hawkins, 

the Respondent, and this administrative tribunal. 

 

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Barbara M. Villalobos

U.S. Department of Labor

Office of the Solicitor

230 S. Dearborn St., Room 844

Chicago, IL 60604

villalobos.barbara@dol.gov

sol-chi@dol.gov

Tony Oppegard

P.O. Box 22446

Lexington, KY 40522

tonyoppegard@gmail.com

Wes Addington

Appalachian Citizens’ Law Center

317 Main Street

Whitesburg, KY 41858

wes@aclc.org

Michael Peelish, Esq. 

Law Office of Adele L. Abrams, P.C. 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

mpeelish@aabramslaw.com

Sarah Ghiz Korwan, Esq. 

Law Office of Adele L. Abrams, P.C. 

1035 Bridge Road 

Charleston, WV 25314 

skorwan@aabramslaw.com