**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE 443

DENVER, CO 80202-2500

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

March 30, 2020
| KOMSAN  (TROY) WOODEN,

                            Complainant,

 

                        v.

 

GENESIS  ALKALI, LLC,

                            Respondent.                                                                          |   |   | DISCRIMINATION  PROCEEDING

 

Docket  No. WEST 2018-0306-DM

MSHA  No. RM-MD-18-06

 

Mine:  Genesis Alkali @ WESTVACO

Mine  ID: 48-00152 |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------|

**DECISIONAND ORDER**

Appearances:              Komsan(Troy) Wooden, pro se, Rock Springs, Wyoming, Complainant

 

Erik M. Dullea, Esq.,Ephraim Hintz, Esq., Husch Blackwell LLP, Denver, Colorado, for Respondent

Before:                                    Judge L.Zane Gill

 

**I. STATEMENT OFTHE CASE**

This proceedingarises from section 105(c)(3) of the Federal Mine Safety and Health Act of 1977(“Mine Act” or “Act”), 30 U.S.C. § 815(c)(3). Komsan (Troy) Wooden alleges thatRespondent Genesis Alkali, LLC terminated his employment because he engaged insection 105(c) protected activities. Respondent argues that Wooden has failedto meet his burden to establish a prima facie case because there is no causalnexus between the protected activity and the adverse action taken against him. Respondentargues that Wooden’s probation and termination was instead the result ofunprotected workplace violations that would have justified adverse actionirrespective of Wooden’s engagement in protected activities.  

For the reasonsthat follow, I find that Wooden engaged in section 105(c) protected activitiesand that his probation and termination constitute adverse action. However, Ifind that there is insufficient evidence to infer a causal nexus betweenWooden’s protected activities and this adverse action. For this reason, I findthat Wooden has failed to state a prima facie case for a section 105(c)discrimination claim. Even if Wooden were to have met his prima facie burden,ultimately, I also find that Respondent provided sufficient evidence to rebutthe prima facie case, or, alternatively, presented a credible and sufficientaffirmative defense that Wooden’s probation and termination were motivated byunprotected activities. 

**II. FACTUAL AND PROCEDURAL BACKGROUND**[1]****

Respondent isthe operator of the Genesis at Westvaco Mine, an underground trona mine andsurface milling facility located in Sweetwater County, Wyoming. (Tr.38:19-38:21) Complainant Wooden was first employed by Genesis on June 3, 2013. (WoodenDep. 45:8-45:15) He worked as a maintenance mechanic at Genesis until December,2017. During the course of his employment, Wooden worked at several differentplants at Westvaco. On January 5, 2017, Wooden began working at the CausticPlant, where he remained until his employment was terminated in December, 2017.(Tr. 11:1-11:15; 13:4-13:6) 

            Wooden’s discharge fromemployment is the subject of this case. Wooden alleges a series of events whichhe claims shows that Respondent’s management harbored animus against him, animusthat he claims led the Respondent to single him out for retaliatory probationand termination. Although Respondent’s management was aware that Wooden hadparticipated in some protected activity, it does not agree that all of theinstances Wooden claims were protected activity constituted protected activityin fact. In rebuttal, Respondent maintains that Wooden was fired for twoinstances of misuse of company vehicles. Following the first instance of unauthorizedvehicle use, management placed Wooden on Decision Making Leave (DML) andnegotiated a Last Chance Agreement (LCA) which provided that further violationof company rules or expectations would result in immediate discharge. (Tr. 454:3-10) Following the second vehicleincident barely four weeks later and after Wooden signed the Last ChanceAgreement, management terminated Wooden without reference to any instances ofprotected activity. (Tr. 481:3-16) Respondent contends that it would have firedWooden for the unprotected activity alone, irrespective of his involvement inany protected activity. 

On January 16,2018, Wooden filed a discrimination complaint with MSHA relating to histermination. On March 2, 2018, MSHA notified Wooden that there was insufficientevidence to support his section 105(c) allegations. Wooden initiated this caseon April 3, 2018. The parties presented testimony and documentary evidence at ahearing in Rock Springs, Wyoming. Respondent submitted a brief, and Woodensubmitted a short written statement, both of which were received and consideredin preparing this decision. The parties stipulate that the Administrative LawJudge (“ALJ”) and the Commission have subject matter jurisdiction over thisaction pursuant to section 113 of the Mine Act, 30 U.S.C. § 823.

**III. ANALYSIS**

Thequestion before me is whether Wooden’s probation and termination wereinfluenced by his involvement in “protected activity.” As part of his burden tomake a prima facie showing of discriminatory intent, Wooden must show that hisprobation and termination were motivated, at least partially, by his engagementin protected activity under section 105(c). I must determine whether theevidence in total, including the inferential evidence, has sufficientcircumstantial weight to satisfy his prima facie burden to show discrimination.

Toestablish a prima facie case of discrimination under section105(c)(1), Wooden must show: (1) that he engaged in a protected activity; and,(2) that the adverse action he complains of was motivated, at least in part, bythat activity. *Sec’y of Labor on behalf of Robinette v. United Castle Coal,Co.*, 3 FMSHRC 803 (Apr. 1981); *Sec’y of Labor on behalf of Pasulav. Consolidation Coal Co.*, 2 FMSHRC 2786 (Oct. 1980), *rev'd onother grounds sub nom*. *Consolidation Coal Co. v. Marshall*, 663F.2d 1211 (3d. Cir. 1981). The operator may rebut the prima facie case byshowing “either that no protected activity occurred or that the adverse actionwas in no part motivated by the protected activity.” *Turner v. Nat’l Cementof CA*, 33 FMSHRC 1059, 1064 (May 2011). The operator may also defendaffirmatively by proving that, “it was also motivated by the miner’sunprotected activity and would have taken the adverse action for theunprotected activity alone.” *Id.*

Woodentestified about several incidents preceding his probation and termination thatcreated an impression in his mind that Genesis was singling him out. Theseincidents fall into two groups: Genesis’ reaction to Wooden’s protectedactivity, and events that do not relate to protected activity, yet may showanimus. In evaluating these events and issues, I am aware that it is possiblethat the Respondent’s actions toward Wooden for unprotected activities mayinfer malice toward him that could have led to his being singled out for adversetreatment in those incidents that are legitimately considered “protectedactivity.”

**A.             ****Wooden engaged in protected activity.**

To satisfy thefirst prong of the *Pasula-Robinette*test for a prima facie case ofdiscrimination, Wooden must show that he engaged in protected activity. *Robinette*,**3 FMSHRC at 803; *Pasula*, 2 FMSHRC at 2786. While section 105(c)(1)does not include the term “protected activity”, Commission cases have neverthelessfound that the section defines certain protected activities. An individualcovered by section 105(c)(1) engages in protected activity if (1) he “has filedor made a complaint under or related to this Act, including a complaint . . .of an alleged danger or safety or health violation[;]”, (2) he “is the subjectof medical evaluations and potential transfer under a standard publishedpursuant to section 101[;]”, (3) he “has 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) he has exercised “on behalf ofhimself or others . . . any statutory right afforded by this Act.” 30 U.S.C. §815(c)(1). 

When acomplainant asserts that he engaged in a protected activity that is notexpressly enumerated under the Mine Act, the activity may still be protected ifit furthers the purpose of the legislation. The legislative history of the MineAct states that Congress intended “the scope of the protected activities be *broadlyinterpreted* by the Secretary.” S. Rep. No. 95-181 at 35 (1977) (emphasisadded). Moreover, the history notes that “the listing of protected rightscontained in [what eventually became section 105(c)(1)] is intended to beillustrative and not exclusive,” and that the section 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. I findthat there is ample evidence to demonstrate that Wooden engaged in a number ofprotected activities. 

**1.              ****MSHA Complaint and Racial Slur**

From January2017 to April 2017, Clyde Muir was Wooden’s immediate supervisor at the GenesisCaustic Plant. (Tr. 12:19-12:23; 552:1-552:12) On April 3, 2017, MSHA inspectorBen Jones came on site and requested to speak to miners (not management) aboutsome issues, including defective metal ladders. According to Wooden’stestimony, Muir wanted to participate in the meeting with the inspector, but InspectorJones did not allow his involvement. (Tr. 13:24-14:18) A few days later onApril 6, 2017, Muir accused Wooden of calling MSHA and making a safetycomplaint. (Tr. 15:5-11; 279:3-280:4) The accusation related to an earlierincident when Wooden had reported that the steering and suspension on a companytruck he had used to drive home a few days prior was defective. Muir raised theissue of the inspector’s visit by snidely suggesting to Wooden that if hewanted to complain about the truck, he should take it up with the MSHAinspector. (Tr. 14:19-15:11) During his site visit, Jones had given Wooden hisbusiness card with a contact number. Wooden used this number to contact InspectorJones about Muir’s statements regarding the defective truck. In response, Jonesreturned to the site along with another inspector, Brett Stenson. (Tr.15:11-17)

Wooden alsorevealed Muir’s hostile reaction to Wooden’s report of the defective steeringand suspension on a company truck to Genesis Safety Manager Andrea Walton. (Tr.15:11-17) Walton assured Wooden that he was within his rights to complain aboutMuir’s comments, reminded Muir that all miners have the right to contact MSHA,and then referred the matter to human resources. (Tr. 279:3-280:10) On April30, 2017, approximately two weeks after Wooden complained about Muir, Genesisterminated Muir for, among other things,[2] accusing Wooden ofcontacting MSHA and making derogatory comments about Wooden’s ethnicity. (Tr.361:10-364:5; 375:17-376:5; 552:2-23; 579:8-20; 579:13-23; Wooden Dep.120:13-122:6; Ex. R-43, p.3)

Wooden’sinteractions with the MSHA investigators, including a possible hazard complaintto MSHA and reporting a defective ladder to an MSHA inspector, constituteprotected activity, as does his interaction with the company’s safety manager. However,the evidence fails to support a finding that Wooden’s probation and ultimatetermination for repeated unauthorized use of a company vehicle was in any wayconnected to this protected activity or to Muir’s missteps. 

 

**2.              ****Magnet Lift and Management Response**

On May 1, 2017,Maintenance Manager Rick Scorcz (Tr. 17:16-25)instructed Wooden and two other miners to lift a 275-lb. magnet into the bed ofa pick-up truck. (Tr. 16:5-17) The men knew the magnet was heavy, but decided tolift it without machine help (Tr. 120:4-25), although they did use a length ofpipe as a lifting pole. (Tr. 16:20-17:15) As they were lifting, Wooden hadtrouble because he was shorter than the other two men. (Tr. 121:2-8) The magnetshifted on the lift pole and Wooden strained a muscle in his right shoulder.(Tr. 16:20-17:15) Wooden reported his injury to interim supervisor DorothyYacobacci (Tr. 285:12-18) who told Wooden to go to Medcor to get his shoulderchecked. (Tr. 18:4-16) Medcor did not treat Wooden’s shoulder. He was prescribedover-the-counter pain pills. (Tr. 18:20-19:1) Since there was no treatmentgiven, Wooden’s injury was non-reportable. (Tr. 281:3-8) Wooden thought that was the end of it. (Tr.18:19-19:3)

            The Safety Department atGenesis performs Root Cause Analysis meetings to identify the causes of miners’injuries with the intent of preventing the recurrence of similar incidents. (Tr. 267:24-268:4) On May 10, 2017, Wooden was summonedto an RCA meeting held in response to the magnet lift incident. (Tr. 19:4-6;153:6-16)[3]Maintenance Director Andre Azevedo attended the meeting. Azevedo is anon-native English speaker (Brazilian). At one point, Azevedo attempted to makethe point that he believed discipline for Wooden was appropriate, and becauseof his limited English skill, made an inappropriate analogy to his father’s useof corporal punishment accompanied by a gesture to his belt. (Tr. 176:18-176:24) Because of Azevedo’s inappropriateand inexcusable outburst, the RCA meeting was abruptly terminated by Scorcz.[4] Managementregarded the outburst as a breach of protocol and took prompt and appropriatedisciplinary action against Azevedo. Human Resources was directed to investigatethe incident. Azevedo was quickly and vigorously reprimanded by the site’s vicepresident and informed that similar actions in the future would be “careerlimiting.” (Tr. 368:24-370:20) 

            On May 18, 2017, Wooden andunion steward, Casey Warne, were called into another meeting relating to themagnet incident. (Tr. 142:13-19) This meeting was not a fact-finding event. Thecompany wanted to inform Wooden that they had looked into the Azevedo incidentand taken swift corrective action. (Tr. 149:9-20)            

On May 26, 2017,Moeller returned from shoulder surgery (Tr. 130:24:131:2; 734:21-25) and calledanother meeting to do a full root cause analysis of the magnet incident. (Tr.739:24-741:3) On July 17, 2017, Wooden received a “first conference,” a lowlevel of discipline, for his role in the magnet lift incident based on hisfailure to communicate to his co-workers that he was struggling to maintaincontrol of the magnet as they lifted it into the bed of the pick-up truck. (Tr.22:8-16; 255:12-256:24; 379:3-380:2; 592:4-22) His co-workers were notdisciplined for their roles in the magnet incident, but received coaching andcounseling. (Tr. 133:1-11; 380:3-381:10; 616:7-617:10;Ex.R-19) Wooden believed that Genesis’ actions relating to the magnet incidentconstituted targeted harassment against him. (Tr. 108:10-109:23) 

Former GenesisHR Manager Kimberly Huber testified that first conferences were the lowestlevel of actual discipline that the company could impose and that theirissuance was a “regular course of business [when] working to try to correctemployee conduct ...” even though the union grieved most of the disciplineactions. (Tr. 552:15-23; 554:20-555:9) No one inmanagement, including Azevedo, argued that Wooden should be disciplined simplybecause he reported his shoulder strain or because of the argument withAzevedo during the RCA. (Tr. 380:18-381:10) Even if Wooden had notreported a shoulder strain after lifting the magnet, had the Safety Departmentlearned about the event and the height disparity causing a potential accidentseparately, Safety still would have conducted an RCA. (Tr. 414:23-415:9) Thereason Wooden received a first conference was not because he reported aninjury, but rather that he took an unnecessary risk by manually lifting themagnet when he was aware of the substantial weight of the magnet after liftingit onto a cart. (Tr. 746:18-747:6; Ex. R-62, p. 7)

Theunion filed a grievance on behalf of Wooden in opposition to the first conference.(Tr. 554:7-554:10) The union later abandoned its grievancerather than taking the dispute to arbitration. (Tr.554:5-554:17) In August 2017, Wooden filed a 105(c) complaint with MSHA. (R-62pp.17-18) Wooden described the magnet lift incident to MSHA SpecialInvestigator Ken Valentine during a subsequent interview. Wooden admitted themagnet was heavy enough that the miners felt they should use mechanical meansto lift it. (Tr. 746:19-747:6; Ex.R-62 p. 7)  Wooden’s statements to Valentineregarding the miners’ behavior and decisions were consistent withMoeller’s testimony and supported the issuance of a first conference toWooden for his risk tolerance based on Wooden’s admitted awareness of themagnet’s weight. (Tr. 740:2-741:3)[5]

Wooden’sdisclosure of his shoulder injury and his section105(c) complaint filed with MSHA over his first conference constituteprotected activity. However, the evidence fails to support a finding thatWooden’s probation and ultimate termination for repeated unauthorized use of acompany vehicle was related to this protected activity in any way.

**3.              ****Self-Direct Charter and Inspection Forms**

In the fall of2017, Genesis was preparing to implement and comply with an MSHA revised ruleon workplace examinations.[6]This “Self-Direct Charter” expected greater employee engagement and gaveparticipants additional accountability, responsibility, and authority to makedecisions in exchange for a wage increase. (Tr.594:2-594:17) The company emphasized a company-wide policy of completingon-shift shop inspection forms. Wooden interpreted this new policy focus asbeing directed at him and believed that he would be exposed to a new degree ofscrutiny and perhaps discipline. As a result, Wooden was reluctant to signforms related to the new policy and interpreted management’s efforts to get hissignature as harassment. Specifically, Wooden believed that anyoneparticipating in the new Self-Direct Charter should have additional trainingcovering the requirements of the on-shift inspections, and that he had not beenso trained. (Tr. 118:3-119:17) He was concerned that he might make a mistake inperforming the on-shift inspections due to a lack of proper training that wouldexpose him to possible discipline. (Tr. 24:9-24:18) However, Wooden had attendedseveral training events on workplace examinations provided by Genesis in 2017.(Ex. R-1, p.2; Tr. 269:3-270:19) 

Further, Woodenplaced significant emphasis on the alleged harassment he faced about shopinspection forms, but in his answers to the Court’s questions, he admitted hehad never been disciplined for missing an item during a shop inspection. (Tr.190:13-17) Wooden selectively invoked the F Crew Charter’s protections at thehearing and testified that he could make management-level decisions, but he didnot expect to be held accountable for making these decisions. (Tr. 22:24-23:12; 29:16-30:6; 198:4-199:1) 

Wooden’scommunications with management about the Self-Direct Charter constitute aprotected activity. However,there is insufficient evidence to support a finding that Wooden’s probation andultimate termination for repeated unauthorized use of a company vehicle was inresponse to this activity. 

**B.             ****Wooden was terminated for misusing company vehicles on twooccasions.**

            Without doubt, some of theincidents Wooden testified about are properly considered protected activities. However,Genesis cites two instances of Wooden’s unprotected activity as justificationfor his probation and termination. Like most MSHA discrimination cases, thisdispute centers on the question of motivation. An analysis of Wooden’s relevantunprotected activities follows. 

**1.              ****The Camper Incident**

Thepredicate for Wooden’s termination occurred on October 25, 2017, when he used acompany vehicle to tow his camper from his home in Rock Springs, Wyoming, to alocation in the back country where he liked to hunt. (Tr. 30:13-15;349:19-350:9) Wooden did not have permission to use a company vehicle forpersonal use. He argued that such personal use was appropriate and in keepingwith prior practice and company culture (Tr. 223:18-224:1; 561:17-562:4), claimingthat he was justified in using a company truck to tow his personal camperbecause other employees had used company vehicles for personal purposes in thepast. (Tr. 199:18-201:14; 223:18-224:1; 619:6-14; Ex. R-27) The evidence provesotherwise. (Tr. 443:12-17) 

Wooden’smisuse of the vehicle was discovered when his manager, Mike Moeller, saw thecompany truck pulling a camper through town on October 26, 2017 (Tr.440:17-441:21; Ex. R-25) and confirmed that Wooden had signed the truck out byreviewing vehicle check-out records. On November 1, 2017, the company startedits normal process of investigating what had happened. (Tr. 31:2-11) It was confirmedthat Wooden had used a company truck to tow his personal camper, that he didnot seek permission to do so (Tr. 489:10-21; 500:20-501:4; 645:24-646:5;654:25-655:13), that there was no company history or practice that wouldjustify such use (Tr. 442:20-443:11), and that Wooden prevaricated during thefact-finding process with the intent to minimize his violation. (Tr. 603:7-25;606:17-607:4; 607:17-608:11; 618:21-619:5; 622:8-623:7; Ex. R-28)

Genesisdid not have a specific policy preventing this type of use by hourly employees (Tr.201:20-204:3; 225:17-25; 446:14-448:20; 511:16-512:2), but it presentedconvincing evidence that no such prior practice had ever been tolerated. (Tr.222:24-223:12; 242:11-25; 243:1-3; 448:21-24; 704:20-24) In fact, anotheremployee, Jarvis Koeven, had been put on Decision Making Leave (DML) probationprior to Wooden’s event for a single occurrence of essentially the sameviolation. (Tr. 471:13-472:2; 473:3-11; 559:23-560:5; Ex. R-44) Further, asupervisor Wooden claimed had previously allowed personal use of a companytruck had been fired in part because he agreed to allow an employee to take apiece of company equipment for personal use. (Tr. 620:14-24) Instead of takingcare to be certain that using a company vehicle for personal use waspermissible, Wooden exhibited a reckless lack of judgment which was repeatedweeks later. 

            During thefact-finding process for this camper-towing incident, there was discussion ofsimply firing Wooden rather than placing him on DML probation. (Tr. 559:6-19) Somemembers of management felt that this incident alone justified termination. (Tr.614:12-19) Wooden was offered a DML instead of termination on November 2, 2017.(Tr. 31:2-11; 614: 9-11) The DML included a Last Chance Agreement (LCA). It wasclear under the terms of the LCA that any violation of company expectationsafter that point in time could result in immediate termination. (Tr. 480:10-19;531:21-532:3; Ex. R-30)The evidence put forth by Wooden does not support his excuse. However,this first instance of misuse of a company vehicle was resolved by theimposition of the last-chance discipline agreement (DML). 

**2.              ****The Overtime Event**

Woodenwas fired for a second incident of unauthorized use of a company vehicle lessthan a month after being placed in a last-chance status for the unauthorized camper-towingevent. (Tr. 481:3-16) On December 13, Wooden and a co-worker, Josh Holloway,were assigned to a project that involved repairing some drain line piping. (Tr.57:20-58:9) Keith Herren, their supervisor for the project (Tr. 59:2-23), announcedthat there might be overtime for Wooden and Holloway’s project depending onvarious factors to be determined as the week progressed. (Tr. 707:2-6;707:24-708:1) By company practice, overtime had to be specifically approved bya supervisor. (Tr. 133:12-19; 501:5-502:11; 683:21-684:21; 689:25-690:14; Ex.R-37) A worker could not assume that there would be overtime. (Tr. 707:7-12) Despiteknowing how overtime was announced and the way by which it must either beconfirmed or allowed to lapse, Wooden took it upon himself to assume that hecould work the pipe project into overtime. (Tr. 33:13-38:1; 500:11-16) Close tothe end of the day, Wooden talked to Herren, who asked him how the job wasgoing. Wooden said nothing about working overtime to finish the project. (Tr.635:12-19; 675:5-14) Wooden testified that he assumed overtime would beapproved, but he did not take advantage of the opportunity to get clarificationfrom Herren when the two of them spoke shortly before shift end. 

            When compared tocoworker Holloway’s contrasting reaction to the same situation, Wooden’sintemperance is apparent. Holloway understood that overtime had not beenapproved. (Tr. 491:15-22) Nor did he fault Herren for his getting “whistle-bit”by losing track of the time and working past the end of his shift. (Tr.660:6-9) Holloway accepted personal responsibility and had no intention offiling a grievance over the overtime issue. (Tr. 639:4-24; 659:5-11; 713:11-17;Ex. R-39) In contrast, Wooden defended his actions by testifying that heexpected Herren to state affirmatively that there would be no overtime and thatsaying nothing was not enough. (Tr. 673:12-20) 

Afterworking past the end of his normal shift (Tr. 75:22-24; 659:9-20; 711:11-18),Wooden unilaterally decided to use a company truck to drive home. (Tr.33:13-38:1; 115:21-116:8; 353:4-354:13; 624:2-6; 645:24-646:13; 716:11-18;747:24-748:3; Ex. R-31; Ex. R-33) He did not use any of the available options(Tr. 497:15-498:20; 499:11-21; 645:24-646:5; 654:14-655:13; 685:1-6) to getlast-minute management approval to drive the company vehicle home, even thoughhe knew of the options and how to proceed. (Tr. 497:15-498:20; 624:2-6;645:24-646:13; 716:11-18; 747:24-748:3; Wooden Dep. 254:3-11; Ex. R-33; Ex.R-37) Puzzlingly, Wooden placed a call (unanswered) to Andy Martinez, his unionpresident, instead of calling a management official for permission to drive thevehicle home. (Tr. 37:4-18; Tr. 654:25-655:13) He then sent a text message toHerren, not requesting permission to use a vehicle, but instead accusing Herrenof dropping the ball by not expressly stating that there would be no overtimefor the pipe project. (Tr. 714:10-715:2) Herren texted in reply that overtimewas not authorized. Wooden then took Moeller’s assigned vehicle, signed it outat the guard station without authorization, and drove it home. (Tr.498:21-499:4; Tr. 654:14-24; Ex. R-35) 

Thisaction violated the last chance agreement from the camper towing incident onlya month before. (Tr. 350:24-351:6; 481:3–16; 624:2-6; 645:24-646:13; 716:11-18;747:24-748:3) Wooden claimed that he believed his supervisor wanted him to workovertime, and under normal overtime practices, would have authorized him to usea company vehicle to get home after the overtime work. But the evidence showsthat the supervisor did not authorize overtime and that Wooden took a companyvehicle home without permission and without even attempting to either confirmthe overtime or obtain permission to use the vehicle. 

Wooden was terminated on December 20, 2017. (Ex. X; Ex. R-41) Theovertime incident reveals no malice or overreach by management toward Wooden. WhenWooden violated the vehicle use practices for a second time within a month,particularly considering that he knew that he was on disciplinary probation andthat any disciplinary infraction could result in his immediate firing, thecompany acted appropriately and justifiably. Any prior friction felt by Woodenbetween himself and management is not evident in the two vehicle misuseincidents.

 

**C.             ****Wooden’s probation and termination were not motivated by hisprotected activity.**

Thesecond prong of the *Pasula-Robinette*test for a prima facie**caseof discrimination requires a showing that Genesis took an adverse actionagainst Wooden that was motivated, at least in part, by Wooden’s protectedactivity. *Robinette*, 3 FMSHRC at 817–18; *Pasula*, 2 FMSHRC at2799–800, *rev'd on other grounds sub nom*.*Consolidation Coal Co.*,663 F.2d 1211 (3d. Cir. 1981). This second prong of the *Pasula-Robinette*testmay be further separated into two sub-questions: (1) whether there was anadverse action; and, if so, (2) whether there was a motivational nexus, at leastin part, between the adverse action and the Complainant’s protected activity. 

**1.              ****Wooden’s probation and termination constituteadverse employment actions.**

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.” 601 F.3d at 428 (quoting *Sec'y on behalfof Jenkins v. Hecla-Day Mines Corp.*, 6 FMSHRC 1842, 1847–48 (Aug. 1984)). TheCommission has recognized that, while “discrimination may manifest itself insubtle or indirect forms of adverse action,” at the same time “an adverseaction ‘does not mean any action which an employee does not like.”’ *Hecla-DayMines Corp.*, 6 FMSHRC at 1848 n.2 (quoting *Fucik v. United States*,655 F.2d 1089, 1096 (Ct. Cl. 1981)). Consequently, where the action alleged tobe adverse against the miner is not self-evidently so, such as a discharge orsuspension would be, the Commission will closely examine the surroundingcircumstances to determine the nature of the action. *Id*. at 1848. “Determinationsas to whether an adverse action was taken must be made on a case-by-casebasis.” *Id*. at 1848 n.2. The Commission has found that a discharge,demotion, or termination is an adverse employment action. *See**McKinsey*,36 FMSHRC at 1186 (citing* *30 U.S.C. § 815(c)(1));* see alsoMoses v. Whitley Dev. Corp., *4 FMSHRC 1475, 1478 (Aug. 1982), *aff'd*,770 F.2d 168 (6th Cir. 1985). Wooden was first placed on probation andultimately terminated from his employment, and thus has shown that adverseaction was taken against him. Genesis does not deny this. 

**2.              ****There was no motivational nexus between Wooden’s protectedactivity and the adverse action taken against him.**

Havingestablished the existence of both a protected activity and an adverse action,Wooden must next show that the adverse action was motivated, at least in part,by the protected activity. *Robinette*, 3 FMSHRC at 817–18; *Pasula*,2 FMSHRC at 2799–800, *rev'd on other grounds sub nom*. *ConsolidationCoal Co.*, 663 F.2d 1211 (3d. Cir. 1981). It is significant that hostilityor animus on a person-to-person level is not enough to show the requiredmotivational nexus. Management’s hostility must be shown to arise from theclaimant’s involvement in protected activity. *Turner*reiterated theclear difference in the quantum of proof a claimant must provide to ultimatelyprevail in a discrimination case as opposed to the minimal showing required toestablish the prima facie case. 33 FMSHRC 1059 (May 2011). “[T]o make out a *primafacie* case of discrimination, the [discriminatee] need only submit enoughevidence so that the record *could* support an inference” that thetermination resulted, at least in part, from protected safety complaints. *Id.*at 1066 (internal citations omitted) (emphasis in original).

TheCommission has noted that “direct evidence of motivation [. . .] is rarelyencountered; more typically, the only available evidence is indirect.” *Chacon*,3 FMSHRC at 2510. Such indirect, circumstantial evidence may include: (1)coincidence in time between the protected activity and the adverse action; (2)knowledge of the protected activity; (3) hostility or animus toward theprotected activity; and, (4) disparate treatment. *Id;**Turner*, 33 FMSHRC at1066; *Matthew Bane v. Denison Mines (USA) Corp*., now known as *EnergyFuels Resources (USA), Inc.*, 39 FMSHRC 897, 917-18 (ALJ, Apr. 27, 2017). Themore that hostility or animus is specifically directed toward the protectedactivity, the more probative it is of discriminatory intent. *Id.* In *Bradleyv. Belva Coal Co.*, with regard to the issue of motivation, the Commissionfound that “circumstantial evidence [...] and reasonable inferences drawntherefrom may be used to sustain a *prima facie*case.” 4 FMSHRC 982, 992(June 1982) (citing *Chacon*, 3 FMSHRC at 2510-12). “Furthermore,inferences drawn by judges are ‘permissible provided they are inherentlyreasonable and there is a logical and rational connection between theevidentiary facts and the ultimate fact inferred.”’ *Colo. Lava, Inc.*, 24FMSHRC 350, 354 (Apr. 2002) (citing *Mid-Continent Res., Inc.*, 6 FMSHRC1132, 1138 (May 1984)).

**a.              ****Coincidence in Time**

The Commissionhas stated that**“[a]dverse action under circumstances of suspicioustiming taken against the employee who is [a] figure in protected activity castsdoubt on the legality of the employer’s motive [...].” *Chacon*, 3 FMSHRC at2511. The Commission has also stated, “[W]e ‘appl[y] no hard and fast criteriain determining coincidence in time between protected activity and subsequentadverse action when assessing an illegal motive. Surrounding factors andcircumstances may influence the effect to be given to such coincidence intime.”’ *Hyles*, 21 FMSHRC at 132 (quoting *Hicks v. Cobra Mining, Inc.*,13 FMSHRC 523, 531 (Apr. 1991)). Although improper motive has been found incases with varying periods between the protected activity and the adverseaction, improper motivation is often found “where the complainant proved thatthe operator knew of the protected activities and that only a short period oftime elapsed between the protected activity and the discharge.” *Sec’y ofLabor on behalf of Baier v. Durango Gravel*, 21 FMSHRC 953, 958 (Sept. 1999)(citing *Sec’y of Labor on behalf of Knotts v. Tanglewood Energy, Inc.*,19 FMSHRC 833, 837 (May 1997)).~~~~

The evidence oftiming does not support a finding or inference of a motivational nexus betweenWooden’s protected activity and the adverse action taken against him. Genesisdid not terminate Wooden until at least four months after the occurrence ofWooden’s most recent protected activity, the first MSHA investigation followingWooden’s first discrimination complaint. (Ex. R-62) Importantly, following thisevent, Wooden was not disciplined again until he used the company truck to towhis camper in November. The timing between Wooden’smisconduct leading to his November and December disciplinary events wasexclusively in his control. The discipline dealt by management was based solelyon his actions and involved two intervening incidents of misuse of companyvehicles in the span of about a month. There is no evidence of Genesiscommitting any acts of hostility, animus, or disparate treatment toward thecomplainant’s protected activity during this four-month period. To thecontrary, management provided sufficient evidence to show that its reactions toWooden’s actions and behavior during this period resulted in fair andconsistent treatment, even in instances where Genesis could have imposedadditional discipline. 

**b.              ****Knowledge of the Protected Activity**

The Commissionhas held that “an operator’s knowledge of the miner’s protected activity isprobably the single most important aspect of a circumstantial case.” *Baier*,21 FMSHRC at 957 (citing *Chacon*, 3 FMSHRC at 2510). Whether the operatorhad knowledge of the protected activity may be “proved by circumstantialevidence and reasonable inferences.” *Id.* The Commission has also heldthat “discrimination based upon a suspicion or belief that a miner has engagedin protected activity, even though, in fact, he has not, is proscribed bysection 105(c)(1).” *Moses*, 4 FMSHRC at 1480. Additionally, theCommission has held that “a supervisor’s knowledge of the protected activitymay be imputed to the operator where knowledgeable supervisors are consultedregarding the miner’s employment.” *Sec’y of Labor on behalf of Pappas v.Calportland Co.*, 38 FMSHRC 137, 146 (Feb. 2016); *see also**Turner*,33 FMSHRC at 1067–68 (imputing knowledge and animus of miner’s directsupervisors to official making disciplinary decision); *Metric Constructors,Inc.*, 6 FMSHRC 226, 230 n.4 (Feb. 1984) (stating that “[a]n operator maynot escape responsibility by pleading ignorance due to the division of companypersonnel functions.”). 

The Respondentdoes not dispute its knowledge of the events listed above. However,management’s knowledge of protected activity alone does not prove wrongdoing. Genesisadmitted its knowledge of Wooden’s protected activity, but Wooden has theburden to prove that Genesis was motivated by this knowledge. Wooden failed toprovide convincing evidence that knowledge of his protected activity motivatedGenesis to place him on probation or terminate his employment for misuse ofcompany vehicles. 

**c.               ****Hostility or Animus**

The Commissionhas held that “[h]ostility towards protected activity – sometimes referred toas ‘animus’ – is another circumstantial factor pointing to discriminatorymotivation. The more the animus is specifically directed toward the allegeddiscriminatee’s protected activity, the more probative weight it carrie[s].” *Chacon*,3 FMSHRC at 2511. Animus can take the form of action or inaction. *Turner*,33 FMSHRC at 1069. Wooden claimed that Genesis was hostile towards hisprotected activity. However, there is no evidence of this alleged animosity. Theexamples Wooden provided at hearing were subjective and unconvincing. 

Wooden testifiedat the outset of the trial that harassment directed at him escalated followinghis complaint to the safety department about Clyde Muir. (Tr. 14:19-15:20) Thetestimony and documents related to Wooden’s complaints about Muir show thatGenesis agreed with Wooden and took prompt corrective action against Muir. AndreaWalton immediately reminded Muir that Wooden had every right to speak to MSHA,and because Walton was troubled by Muir’s response, she notified HR, who inturn commenced an investigation into Muir’s conduct. (Tr. 15:5-11; 279:3-280:4;279:3-280:10) Contrary to Wooden’s belief, the trial record shows thatmanagement did not fault Wooden for Muir’s behavior and eventual discharge.(Tr. 552:13-552:23)

Genesis did notshow hostility or animus in its response to the magnet lift incident. The RootCause Analysis process was used to identify risky behavior and minimize thepossibility of injuries from similar events in the future. Genesis did nottarget Wooden in relation to Azevedo’s outburst during the RCA meeting. Rather,Genesis investigated Azevedo’s actions and determined that they fell short ofwhat was expected of management personnel. (Tr. 375:6-375:16) Wooden testifiedthat Genesis called him into a fact-finding meeting on May 18, 2017, (Tr.21:1-21:4), but in truth, the May 18 discussion was intended for Genesisto provide Wooden with feedback about its reaction to Azevedo’s outburst duringthe RCA meeting. (Tr. 368:24-369:3) The testimony and documents related toWooden’s complaints about Azevedo show that Genesis agreed with Wooden and tookprompt corrective action against Azevedo.

Wooden placedsignificant emphasis on the alleged harassment he faced about shopinspection forms, but in his answers to the Court’s questions, he admitted hehad never been disciplined for missing an item during a shop inspection. (Tr.190:13-190:17) The documents Genesis produced and the testimonysupporting them did not reveal any animosity directed at Wooden. To thecontrary, the evidence shows that the company tried to address Wooden’sconcerns. Wooden’s testimony that Keith Herren harassed him, targeted him,and was untruthful is also contradicted by Wooden’s statements to MSHAInvestigator Valentine during his August 29, 2017 interview, in which Woodenmade favorable comments about working with Herren at the time Wooden claimed hewas being harassed. (Ex. R-62 pp. 11, 13-14) 

Another exampleof alleged harassment occurred on September 8, 2017, when Rick Skorcz and AndreAzevedo visited the Caustic Maintenance shop to ask about workplace examforms. Wooden exited the forklift he was operating to get the forms, andAzevedo asked if it was permitted to leave the forklift running whileunattended. (Tr. 27:17-28:16) Wooden stated it was an acceptable practiceat Genesis to leave a forklift running while unattended as long as theForklift’s tires are chocked. Wooden claimed that this question fromAzevedo was harassment, but he failed to mention that he was notdisciplined for leaving the forklift running, or that Tamara Fennellreturned to tell him that Azevedo had checked the procedures and confirmedthat Wooden was correct. (Wooden Dep. 150:8-151:19) 

The decision toissue Wooden a first conference letter after the magnet lifting incident wasunrelated to any protected activity by Wooden. Wooden’s probation andtermination were the result of bad judgment and a failure to follow protocols. Woodenknew he could face termination for any disciplinary infraction going forward. (Tr.349:19-350:9; 461:23-462:11) Irrespective of whether the employer’s pastactions toward Wooden could be characterized as responses to his protectedactivity, standing either alone or considered in the context of prior history,the second of these two incidents justifies the firing. 

The fact thatthe termination incident involved a second episode of unauthorized use of acompany vehicle was considered an aggravating factor as the company consideredits options. (Tr. 349:19-350:9; 356:20-357:12) Wooden did not put on anyevidence to show that there was any confusion about what was required of himwhen he signed the DML. (Tr. 531:2-532: 3) Under the circumstances, one is leftin disbelief that Wooden would jeopardize his job by assuming he had permissionto work overtime and to use a company vehicle without permission a second time.

The evidencedoes not convince me that Genesis committed acts of hostility, animus, ordisparate treatment in reaction to Wooden’s intervening protected activity. Iconclude that there was nothing approaching a “continuous escalating series ofwrongdoings” against Wooden. *See Sec’y of Labor (MSHA) obo Pappas, v.CalPortland Co*., 39 FMSHRC 718, 751 (ALJ, Mar. 31, 2017) (rejecting theSecretary’s assertion that the operator’s actions were a continuous event).

**d.              ****Disparate Treatment**

Disparate orinconsistent treatment is another indirect indicium of discrimination. “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. Ithas been recognized that “precise equivalence in culpability between employees”is not required in analyzing a claim of disparate treatment under traditionalemployment discrimination law. *Pero*, 22 FMSHRC at 1361, 1368 (citing *McDonaldv. Santa Fe Trail Transp. Co.*, 427 U.S. 273, 283 n.11 (1976)). Rather, thecomplainant must simply show that the employees were engaged in misconduct of“comparable seriousness.” *Id.* at 1368. 

Wooden did notpresent any evidence of disparate treatment by Genesis in connection with themagnet lift incident. The coaching and counseling given to Fausett and Gamperwas justified by reasonable mitigating circumstances. The trial record showsthat Genesis’ treatment of Wooden was consistent with its treatment of otherminers in similar situations, before and after Wooden’s protected activity. Inthe eighteen months before Wooden received his first conference, Genesis issued firstconferences to twelve other miners for risk-related behaviors. (Exs. R-45;R-79) In fact, the one example that Wooden produced during discovery asevidence of an unpunished injury incident actually resulted in a first conferencefor risk tolerance similar to Wooden’s discipline. (Tr. 434:21-436:14) Woodenreceived the first conference in reaction to his unsafe behavior, not hisprotected activity. (Tr. 553:16-554:4) Genesis’ actions toward Wooden relatingto the magnet lift incident were an attempt to alter his behavior and avoidrepeated hazardous conduct in the future. 

In the fall of2017, Genesis was preparing for the effective date of MSHA’s revised rule onworkplace examinations. When the company issued a new policy on completing shopinspection forms, Wooden interpreted it as being directed at him personally andbelieved that he would be exposed to a new degree of scrutiny and perhapsdiscipline. Wooden placed significant emphasis on thealleged harassment he faced about shop inspection forms, but in hisanswers to the Court’s questions, he admitted he had never beendisciplined for missing an item during a shop inspection. (Tr. 190:13-190:17) Inreality, the policy of completing on-shift shop inspection forms was acompany-wide policy and could not have reasonably been adopted for the purposeof disciplining or punishing Wooden or enforced in such a way that would leadto disparate treatment against him. Wooden alleged that Herren harassed him andsingled him out. Other witnesses’ testimony confirmed that Herren set the samelevel of expectations for the entire crew, as required by MSHA regulations andcompany procedures. (Tr. 125:25-126:5; Tr. 727:20-731:16)

Wooden’s misuseof a company vehicle does not constitute a protected activity under the MineAct, but it is telling that management’s response to this incident was fair andeven-handed. Although Genesis could have immediately terminated Wooden’semployment for towing the camper, Tamara Fennell, the HR Business Partnerfor Maintenance, and Kimberly Huber advocated for issuing a DML to Woodento maintain consistency with its previous discipline. In 2011, Genesis employeeJarvis Koeven had driven a company truck to Salt Lake City withoutauthorization. Genesis issued Koeven a DML that included an unpaidsuspension and a last chance agreement for his misuse of a companyvehicle. (Tr. 559:23-560:5)[7]Like Wooden, Koeven did not comply with the terms of his last chance agreementand was discharged. (Tr. 469:15-470:22; 560:6-561:8) 

The company’sdisciplinary records refute Wooden’s and his union’s (reluctant and unsubstantiated)claims that Wooden was targeted. Wooden failed to provide evidence that he wastreated differently than other employees in similar situations. I cannot findthat Wooden was the recipient of disparate treatment.

**e.              ****Opportunities to Impose Discipline**

After Woodenreceived the first conference for the magnet lifting even, he was notdisciplined again until November, when he towed his camper using the companytruck. (Tr. 748:8-749:19; 190:1-20) Genesis had additional opportunities toimpose formal discipline, but opted for coaching and counseling instead. (Tr.26:1-22; 563:24-564:16; 696:24-698:6; 190:1-20)[8] DespiteGenesis knowing about Wooden’s protected activity, when Wooden’s subsequentconduct in the second half of 2017 qualified for discipline, includingpotential termination, Genesis took a different approach. Wooden could havebeen disciplined for multiple events: (i) failing to properly chock aforklift’s tires after he finished operating the forklift; (ii) forgetting towear rubber boots while working in the caustic area; and, (iii) throwing awayan empty plastic tool case for a power tool that had been in a Genesis truckWooden was assigned to drive home after working overtime. (Tr. 566:15-22;696:24-697:2; 26:1-27:6; Ex. R-22) Instead of disciplining Wooden for theseinstances, Keith Herren provided non-disciplinary coaching and counseling in anattempt to improve Wooden’s behavior.[9]

Genesis alsoexercised leniency with Wooden in October, 2017, after he used the companyvehicle to tow his personal camper. (Tr. 454:24-455:6; 603:10-23; Ex. R-27) Genesiscould have terminated Wooden at that time. (Tr. 465:23-466:15) Firing Woodenwould have arguably been in compliance with the company’s Positive PerformanceProgram,[10]particularly since Wooden initially lied about his misuse until he realizedGenesis already knew the truck had been seen pulling a camper. (Tr.602:22-603:9; Ex. R-27) Although some members of management considered this atermination-level offense, management elected to issue him a DML. (Tr. 615:5-616:6)

**IV. RESPONDENT’SREBUTTAL**

Under section105(c), 30 U.S.C. § 815(c), the operator may rebut the miner’s prima facie caseby showing either that no protected activity occurred or that the adverseaction was in no part motivated by the protected activity. *Pasula*, 2 FMSHRCat 2799-800; *Turner*, 33 FMSHRC at 1064. Genesis denies that Wooden wasterminated in violation of the Mine Act, and argues instead that any adverseaction was not motivated in any part by protected activity. While I havealready found that Wooden failed to provide sufficient evidence to meet hisprima facie burden, I will nevertheless address the Respondent’s rebuttal.

Wooden engagedin several instances of protected activity. The Respondent argues that Woodenwas terminated, not for any reason related to that protected activity, but forhis misuse of a company vehicle on two occasions. Based on the evidenceavailable to me, I find that Wooden has failed to demonstrate that hisprobationary status and the termination of his employment were related to hisprotected activity. Wooden alleged that the discipline he received was not fair(Tr. 507:18-25), but that is not an element of a section 105(c) claim. Thecompany’s decisions were valid business decisions, consistent withlong-standing policies and the collective bargaining agreement with the union. 

In analyzing amine operator’s asserted justification for taking adverse action under the *Pasula-Robinette*framework, the inquiry is limited to whether the reasons are based in fact,whether they actually motivated the operator’s actions, and whether they wouldhave led the operator to act even if the miner had not engaged in protectedactivity. *Turner*, 33 FMSHRC at 1073. The ALJ may not impose his ownbusiness judgment as to an operator’s actions, *Chacon*, 3 FMSHRC at2516-517, and he may not substitute his own justification for disciplining aminer over that offered by the operator. *Sec’y of Labor on behalf of McGillv. U.S. Steel Mining Co.*, 23 FMSHRC 981, 989 (Sep. 2001). While theintermediate steps of the *Pasula-Robinette* test include shiftingburdens, the ultimate burden of persuasion on the question of discriminationremains with the complainant. *Robinette*, 3 FMSHRC at 818 n.20. 

Respondent’s statedreason for terminating Wooden was plausible and not pretextual for thefollowing reasons. First, Genesis made the business decision to terminateWooden for misusing a Genesis truck twice in four weeks. Second, Wooden couldhave been discharged for the first misuse alone. (Tr. Tr. 606:24-607:4;216:17-216:23; Ex. R-27) Wooden knew the Last Chance Agreement came with aprobationary period in which Genesis could terminate him for any misconductthat would normally result in discipline. Third, only four weeks after agreeingto the LCA, Wooden used another truck without authorization. Not only was thisunprotected activity, it was substantially similar to his previous misconduct. Theproximity in time between his two instances of vehicle misuse stunned Genesis’HR team, which could not believe Wooden committed the same unprotected activityhe engaged in to receive his DML a second time. (Tr. 624:7-13) Given thesefacts, I find that Genesis’ reason for terminating Wooden is plausible and notpretextual. 

**V. RESPONDENT’SAFFIRMATIVE DEFENSE**

If the operatorcannot rebut the prima facie case, it may nevertheless defend affirmatively byproving that it was motivated by the miner’s unprotected activity alone. It isnot enough under section 105(c) for the operator to show that the minerdeserved to be fired for engaging in the unprotected activity. The operatormust show that it did, in fact, consider the miner deserving of discipline forengaging in the unprotected activity alone and that it would have disciplinedhim in any event. *See Robinette*, 3 FMSHRC**at 817–18; *Pasula*,2 FMSHRC at 2799–800; *see also E. Assoc. Coal Corp. v. FMSHRC*, 813 F.2d639, 642–43 (4th Cir. 1987) (applying *Pasula-Robinette*test). 

The Commissionhas articulated several indicia of legitimate non-discriminatory reasons for anemployer's adverse action. These include evidence of the miner's unsatisfactorypast work record, prior warnings to the miner, past discipline consistent withthat meted out to the complainant, and personnel rules or practices forbiddingthe conduct in question. *Bradley*, 4 FMSHRC at 993. The Commission hasexplained that an affirmative defense should not be “examined superficially orbe approved automatically once offered.” *Haro v. Magma Copper Co.*, 4FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judgemust “determine whether they are credible and, if so, whether they would havemotivated the particular operator as claimed.” *Bradley*, 4 FMSHRC at 993.The Commission has stated 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 on behalf of Price v. Jim Walter Res., Inc.*,12 FMSHRC 1521, 1534 (Aug. 1990).

Asdiscussed above, I find that Genesis discharged Wooden in response to Wooden’sunprotected activities. However, even assuming that Wooden’s protected activitypartially motivated Genesis to issue the DML for towing his camper, and then dischargeWooden for once again using a company truck without authorization four weekslater, Genesis still did not violate section 105(c) of the Mine Act because itproved each element of its affirmative defense. As previously discussed, thereis sufficient evidence to find that: (i) Genesis would have issued Wooden a DMLand invoked the provisions of the Last Chance Agreement in the absence of hisprotected activity; (ii) Genesis was motivated by Wooden’s repeated misuse ofcompany vehicles; and (iii) these actions alone supported the discipline hereceived. I find that it is reasonable to terminate an employee under thesecircumstances. 

 

 

**VI. CONCLUSIONSOF LAW**

Wooden failed toestablish a prima facie case of discrimination under section 105(c) of the MineAct. The operator’s stated reasons for discharging Wooden were plausible andnot pretextual. Genesis affirmatively defended its decision to place Wooden onprobation and ultimately terminate his employment. Therefore, based on athorough review of the record, I conclude that Wooden failed to prove by apreponderance of the evidence that either the probation or the terminationconstituted discrimination in violation of section 105(c) of the Act. 

**VII. ORDER**

Komsan(Troy) Wooden’s complaint and this proceeding are **DISMISSED**.

 

 

 

 

/s/L. Zane Gill

L. Zane GillAdministrative Law Judge

 

 

 

Distribution: 

Komsan (Troy) Wooden, 14 Greve Circle,Rock Springs, WY 82901 komsanwooden@yahoo.com

Erik Dullea, Esq., Ephraim Hintz, Esq.,Husch Blackwell LLP, 1801 Wewatta St, Ste 1000, Denver, CO 80202 erik.dullea@huschblackwell.comephraim.hintz@huschblackwell.com

/kb

 

* *

----

[1] Thefindings of fact here and below are based on the record as a whole and mycareful observation of the witnesses during their testimony. In resolving anyconflicts in the testimony, I have taken into account the interests of thewitnesses, or lack thereof, and consistencies, or inconsistencies in eachwitness’s testimony and between the testimonies of other witnesses. Inevaluating the testimony of each witness, I have also taken into account his orher demeanor. Any perceived failure to provide detail about any witness’stestimony is not a failure on my part to consider it. The fact that someevidence is not discussed does not mean that it was not considered. *SeeCraig v. Apfel*, 212 F.3d 433, 436 (8th Cir. 2000) (ALJ is not required todiscuss all evidence and failure to cite specific evidence does not mean it wasnot considered). I have also fully considered the contents of the officialfile, including the pre- and post-hearing submissions of the parties, and theexhibits admitted into evidence.

[2] Muir made astatement to a group of miners that implied that a bad odor in the break roomwas caused by food brought in by Wooden. (Tr. 375:17-376:5) By extension, sinceit was widely known that Wooden was half Thai (his mother) (Tr. 13:21-22;20:14-16), those who heard the comment understood it to be racially insulting. (Tr.361:20-362:10; 363:12-20) 

[3] Aroot cause analysis (RCA) is a process that allows the company to investigateworkplace accidents in order to learn from them and promote safer conduct goingforward. (Tr. 149:21-150:4; 267:24-268:6; 275:10-19; 307:19-308:2;401:15-402:1)

 

[4] Scorcz was filling infor Maintenance Area Manager Mike Moeller. (Tr. 21:10-19; 183:5-10)

[5] In its negativefinding for Wooden’s 105(c) complaint, MSHA specifically stated that therewas insufficient evidence to prove Genesis violated the Mine Act in itsresponse to the magnet lift incident. (Wooden Dep. 188:14-189:4) 

 

[6] SeeExaminations of Working Places in Metal Non-Metal Mines, 83 Fed. Reg. 15055,15056 (Apr. 9, 2018) (describing the multiple extensions to the effective dateon October 5, 2017, from October 1, 2017 to June 2, 2018).

[7] Koeven hadreceived another DML in 2009 for taking a company truck home withoutauthorization, but the two-year sunset provision for that DML hadexpired approximately one month before Koeven drove a second truck to SaltLake City. 

[8]The interveningevents were not discipline, as defined by Genesis’ policy and practice, eventhough Wooden and other witnesses perceived them as such. (Tr. 440:1-12)In the final analysis, the intervening eventsresulted in Wooden being treated in an evenhanded and consistent manner. 

[9] Wooden saw thiscounseling as a form of harassment. (Tr. 26:1-27:5)

[10]Genesis has a progressive disciplinary system, known as the PositivePerformance 

Policy (“PPP”). (Tr. 341:10-341:22) As an alternative to the PPP,Genesis supervisors may engage in coaching and counseling of their employees toencourage them to alter subpar behaviors without resorting to formaldiscipline. (Tr. 339:13-339:21)