**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

 

 
| MARIA T. WALKER,

                Petitioner,

 

                        v.

 

CAPURRO  TRUCKING,

                Respondent.                                                      |   |   | DISCRIMINATION  PROCEEDING

 

    Docket No.  WEST 2021-0183

    MSHA Case  No. WE-MD-21-20

    Mine ID:  26-01089 / F732

    Mine:  Goldstrike Mine             |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION ON RESPONDENT’S**

**MOTION FOR SUMMARY DECISION**

 

Before:                        JudgeSullivan

 

Thisdiscrimination proceeding is before the Commission 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). Respondent Capurro Trucking (“Capurro”), pursuant toCommission Procedural Rule 67(a)-(c), 29 C.F.R. §2700.67(a)-(c), has filed a Motionfor Summary Decision (“Resp’t Mot.”) on the pro se discrimination complaintbrought against it by its former employee, Complainant Maria T. Walker. Complainantopposes the Motion for Summary Decision.

 

**                   I.        ****GENERALFACTUAL AND PROCEDURAL BACKGROUND**

** **

Capurro,headquartered in Sparks, NV, provides trucking services as a contractor underthe Mine Act from its Carlin, NV Mining Division facilities to nearby mines,including the Goldstrike Mine of Nevada Gold Mines LLC. Complainant started asa Capurro ore haul truck driver on November 25, 2019, with approximately three weeksof training.[1]She worked as a Capurro Mining Division driver until her termination on September3, 2020.

 

According to theExit Interview that Complainant attached to her Commission Complaint,(hereinafter “105(c)(3) Compl.”), Capurro informed the Complainant that she wasbeing terminated for her “[f]ailure to take direction from supervisors withoutconstant argument” and “[d]isruption of workforce.” The Exit Interview furtherstated that “all communications and directives given from any management orsupervision is a debate or argument” and are “very disruptive and timeconsuming.” *Id.**[2]***

Complainant, pursuantto section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), subsequently fileda discrimination complaint against Capurro with the Department of Labor’s MineSafety and Health Administration (“MSHA”) (hereinafter “MSHA Compl.”).[3] However, byletter dated March 19, 2021, MSHA notified Complainant that the Secretary ofLabor would not be filing a discrimination complaint on her behalf with theCommission, because “[b]ased on a review of the information gathered during theinvestigation, MSHA does not believe that there is sufficient evidence toestablish, by a preponderance of the evidence, that a violation of Section105(c) occurred.”

 

Along the linessuggested in MSHA’s March 19th letter, and as discussed in further detail below,Complainant filed her own discrimination complaint with the Commission, datedApril 13, 2021. Capurro timely filed its Answer, and on June 7, 2021, ChiefAdministrative Law Judge Glynn F. Voisin assigned me this matter.

 

On June 15, 2021, Iconducted a conference call with the parties. Among the topics discussed wasthe scope of a Commission discrimination proceeding.[4] I grantedComplainant’s request that a hearing not be held in the near term, primarily inorder to permit her to receive and review documents she had requested from MSHAthrough the Freedom of Information Act (“FOIA”).[5]I explained to both parties that it was unrealistic to expect that any of the materialsobtained from MSHA pursuant to a FOIA request would include MSHA’s view on themerits of the Complainant’s discrimination allegations. However, given thecircumstances and that the request was from a pro se Complainant, I viewed itas reasonable one and issued a Notice of Hearing and Prehearing Order forDecember 2021. *See Ribble v. T & M Dev. Co.*, 22 FMSHRC 593, 595 (May2000) (holding that pro se complainant who met Commission’s minimal section105(c)(3) proceeding pleading requirements be afforded opportunity to provediscrimination allegations under the Commission’s Procedural rules).[6]

 

After both partiesconducted discovery, on November 15, 2021, Capurro filed its Motion for SummaryDecision, along with a five-page Statement of Undisputed Facts, two affidavits,and approximately 600 additional pages of exhibits (“Resp’t Ex.”).

 

In response, Complainantfiled a one-page opposition to Capurro’s Motion, to which she appended a two-page“response” to Capurro’s initial Answer. Complainant also submitted 356 pages ofdocuments she characterized as exhibits (“Walker Ex.”). Many of the documentswere copies of repetitive instances of the same text conversation, and manydocuments included Complainant’s undated annotations. Also accompanying theexhibits was a four-page “Exhibit Form” in which Complainant tersely summarizedthe documents and her view of their import. Because the Complainant is pro se,I have liberally construed Commission Rule 67(d), 29 C.F.R. § 2700.67(d), whichgoverns the form of opposition to motions for summary decision.

 

            Withthe prospect of a hearing that could only be held via Zoom video conferencing,[7] I held a Zoomsession with the parties on December 9, 2021. The purpose of the session was toexplore their respective abilities to conduct a full video conference hearing, aswell as to discuss the issues in the case, including those raised by avoluminous summary decision record.

 

At that time,Complainant requested a continuance to the hearing so that she could continue withwhat she represented were ongoing conversations with experienced Mine Actcounsel regarding his serving as her attorney in the case. I granted thecontinuance request, indicating that I had not yet decided how I would rule onthe Motion for Summary Decision, but would do so in a written order or decisionbefore ordering further proceedings in the case, if any. I also suggested that Complainantrespond in good faith to Capurro’s outstanding offer to discuss potentialsettlement, informing the parties, as I had before, that the Commission couldassist these discussions by appointing settlement counsel in the case.

 

A month later, Complainanthas yet to provide a definitive answer on whether she will be retaining the counselshe referenced at the conference (or any other), and recent indications are sheis not interested in participating in settlement discussions. Consequently, dueprocess and fairness considerations require that I rule upon Capurro’s Motionfor Summary Decision now.

 

 

 

**                           II.        ****SUMMARYOF APPLICABLE LAW**

** **

**A.       ****EstablishingDiscrimination Under the Mine Act**

** **

The pertinentprovision of the Mine Act, section 105(c)(1),provides that “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 . . . in anycoal or other mine subject to this Act 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.” 30 U.S.C. § 815(c)(1). In cases suchas this one, that are potentially reviewable by the United States Court ofAppeals for the Ninth Circuit under section 106(a)(1) of the Mine Act, 30U.S.C. § 816(a)(1), the key term in section 105(c)(1) is “*because*.” A discriminationcomplainant must show that (1) she engaged in what is known as“protected activity” (i.e., “the exercise of statutory rights”); and (2) thatthe adverse action complained (here the Complainant’s termination) was “*because*”of that protected activity. In other words, at least in cases ultimatelysubject to Ninth Circuit review, a Complainant must show that her employerwould not have taken the adverse action against her “but for” the protectedactivity she engaged in. *Thomas v. CalPortland Co.*, 993 F.3d 1204, 1210(9th Cir. 2021) (remanding 105(c)(3) case for Commission to apply “but-forstandard”); Docket No. WEST 2018-0402 (Dec. 2, 2020), at 11 (ALJ) (decision onremand applying but-for standard), pet. for rev. filed Dec. 29, 2021; *seealso Sec’y on behalf of Alvaro v. Grimes Rock, Inc.*, 43 FMSHRC 299, 302-03(June 2021).

 

The question of whether an employer wouldnot have taken an adverse action “but for” a complainant’s protected activityis one of motivation. Motivation can be established either directly orindirectly, through circumstantial evidence. Relevant considerations indetermining motivation are the employer’s knowledge of the protected activity,its hostility towards the protected activity, the coincidence in time betweenthe protected activity and the adverse action, and disparate treatment of the complainant.*See**Sec’y on behalf of Chacon v. Phelps Dodge Corp.*, 3 FMSHRC2508, 2510 (Nov. 1981)), *rev’d on other grounds*, 709 F.2d 954 (D.C. Cir.1983).

 

**B.       ****SummaryDecision Standard**

** **

CommissionProcedural Rule 67(b) provides that a motion for summary decision shall begranted only if “the entire record, including the pleadings, depositions,answers to interrogatories, admissions, and affidavits, shows: (1) [t]hat thereis no genuine issue as to any material fact; and (2) [t]hat the moving party isentitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b). TheCommission analogizes summary decision to Rule 56 of the Federal Rules of CivilProcedure governing summary judgment. *Lakeview Rock Prods., Inc.*,  33FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme Court, as theCommission observes, determined that summary judgment is only appropriate “uponproper showings of the lack of a genuine, triable issue of material fact.” *Id.*at 2987-88 (citing *Celotex Corp. v. Catrett*, 477 U.S. 317, 327 (1986)).

The Supreme Courthas also held that both the record and “inferences drawn from the underlyingfacts” must be viewed in the light most favorable to the party opposing themotion. *Id.*at 2988 (quoting *Poller v. Columbia Broad. Sys.*, 368U.S. 464, 473 (1962)). However, only such inferences that are “reasonable” maybe drawn. *Reeves v. Sanderson Plumbing Prod.*, 530 U.S. 133, 150 (2000); *Tolanv. Cotton*, 572 U.S. 650, 660 (2014). Consequently, in ruling upon motionsfor summary judgment, courts have refused to indulge inferences fromnon-movants that are “farfetched or fantastic” (*Int’l Ass’n of Machinistsand Aerospace Workers, AFL-CIO v. Winship Green Nursing Ctr.*,**103 F.3d196, 206 (1st Cir. 1996)), that do not that do not follow rationally from factspresented to the judge (*Iglesias v. Mutual Life Ins. Co. of New York*,**156 F.3d 237, 240 (1st Cir. 1998)), or that require the court to “accept .. . sheer speculation as fact.” *Robbins v. Becker*, 794 F.3d 988, 997(8th Cir. 2015). In short, a non-moving party “cannot rely on conclusoryallegations, improbable inferences, acrimonious invective, or rankspeculation.” *Thompson v. Gold Medal Bakery, Inc*., 989 F.3d 135, 141 (1stCir. 2021).

 

**                                  III.        ****DISCUSSIONAND ANALYSIS**

 

In its Motion forSummary Decision, Capurro argues that Complainant has not alleged, much less providedany evidence, that she engaged in activity protected by the Mine Act. Resp’t Mot.at 11-13. Capurro maintains that the scope of any discrimination complaintbefore the Commission is strictly circumscribed by matters raised in theinitial complaint to MSHA, because only those matters could have beeninvestigated by that agency. *Id.* at 16. Capurro further argues that theevidence it submitted establishes beyond any doubt that Complainant wasterminated for cause, and thus, under the “but for” section 105(c) test fordiscrimination, its Motion should be granted. *Id.* at 13-15.

 

In opposing themotion, Complainant argues that Capurro still fails to sufficiently documentwhy it terminated her. She further contends that Capurro did not address hersection 105(c) complaints and that the “constant absences” of Capurro MiningDivision General Manager David Peck “left unknowledgeable and untrained . . .managers/supervisors in his stead.”

 

**A.       ****ThePermissible Scope of a Section 105(c)(3) Complaint**

I first address Capurro’sarguments on the scope of the section 105(c)(3) complaint that the Commissioncan entertain in this case. In *Hatfield v. Colquest Energy, Inc.*, theCommission held that the scope of a section 105(c)(3) proceeding is not definedsolely by the original complaint to MSHA but can also include additional mattersthat were “reported to” MSHA for investigation. 13 FMSHRC 544, 546 (Apr. 1991).A section 105(c) proceeding is not strictly circumscribed by the originalcomplaint to MSHA if, during MSHA’s subsequent investigation, additionalinformation relevant to the question of whether discrimination occurred is uncovered.*Hopkins Cty. Coal, LLC*, 38 FMSHRC 1317, 1322-26 (June 2016) (detailingMSHA investigatory process in discrimination cases).

 

The MSHAinvestigatory process can hardly be described as transparent when the Secretarydeclines to file a discrimination complaint with the Commission. Hence why itis difficult for a section 105(c)(3) complainant, especially a pro se one, toestablish the actual extent of matters that MSHA investigated. Here, however,there is no question regarding what matters Complainant “reported to” MSHAduring its investigation, and thus provided the agency the opportunity toinvestigate.

 

That is because Complainantappended to her Commission Complaint not only the required originaldiscrimination complaint to MSHA and the Capurro Exit Interview previouslydiscussed, but also copies of two other documents detailing the information sheprovided to MSHA in support of her initial complaint. The first is a six-pagedocument containing answers the Complainant appears to have provided to variousMSHA questions on October 29, 2020 (hereinafter “Questionnaire”). The second isa more formal document, the signed “Statement of Maria Walker” that Complainantgave to MSHA Special Investigator Kyle E. Jackson on November 17, 2020(hereinafter “Complainant Statement”).

 

Consequently, inruling upon the Motion for Summary Decision, I will review the allegations in theComplaint to the Commission to the extent that they were reported to MSHA in theComplaint to MSHA, the Questionnaire, or the Complainant Statement. I will notaddress the additional allegations Complainant made to MSHA in the latter twodocuments that she did not include in either of her complaints. *SeeCarmichael v. Jim Walters Res., Inc.*, 20 FMSHRC 479, 484 n.9 (May 1998)(“Whatever its value as evidence, the [section 105(c)(3)] complaint to theCommission, much like a complaint in a court proceeding, is a basic pleadingthat serves to frame the issues to be tried.”). Such review will be conductedin accordance with the standard for summary decision.

 

**B.       ****Whetherthe Section 105(c)(3) Complaint Includes Allegations of Protected ActivityRaised in the Complaint to MSHA or the Subsequent Investigation**

 

Much of the Complaintto the Commission is a compendium of accusations against Capurro, many of whichare quite serious. For instance, as she had to MSHA, Complainant allegescriminal conduct on the part of Capurro and its agents. Included are allegationsof “fraud” carried out by Capurro’s agents, “payoffs of mine employees,” andtheft from the company. While Complainant identifies those she accuses by name,most of those names will not be repeated here, given the Complainant’s tendencyto cavalierly allege criminal conduct, not only by individuals within Capurro’sMining Division management but outside of it as well.[8] With theexception of one serious accusation, none of the claims will be addressed inthis decision because, even if true (which the record indicates there is much reasonto doubt), they have nothing to do with workplace safety. Rather they only concernhow Capurro carried out other aspects of its business operations.[9]

 

The Complainantmaintains that the reason she was terminated was not related to how she carriedout her job duties, but rather because she knew “too much” regarding thecriminal conduct at Capurro. 105(c)(3) Compl. at 1. According to theComplainant, she posed a risk to the company’s management personnel, in thatshe could inform Capurro’s owner in Reno “of all the going-on’s” at the Carlinlocation. The Complainant further alleges that because she knew “too much,” shewas treated differently from other drivers by management with respect to enforcementof company rules. Her ultimate request is that, before the Commission, she bepermitted to “challenge Capurro, in which to produce true and correctdocumentation against their falsified and sparse history” of her employmentthere. *Id.* at 2.

 

At bottom, Complainant’scase revolves around allegations of disparate treatment of her by management. Ofcourse, a Mine Act discrimination case based on disparate treatment mustcontain some plausible allegation that a miner had engaged in protectedactivity and was subsequently treated differently than employees who had notengaged in protected activity. *See, e.g., Pero v. Cyprus Plateau MiningCorp.*,**22 FMSHRC 1361, 1364-67 (Dec. 2000).

 

Keeping in mindthat Complainant is pro se, I have thoroughly reviewed her Complaint to theCommission, as supported by her original Complaint to MSHA and the additionalMSHA investigation documents she included, to discern any recognizable allegationof protected activity under the Mine Act that may have motivated Capurro toterminate Complainant’s employment. My conclusions are as follows: 

 

**1.    ****“Stop work”Incident**

 

The closestmention of protected activity in the Complaint to the Commission is what led towhat Complainant refers as the “stop work” incident. 105(c)(3) Compl. at 2. Capurrodescribed the incident as a “disruption of [the] work force” and included it asa reason for Complainant’s termination.

 

According to theinformation Complainant provided to MSHA, on August 3, 2020, she and other driverson her shift learned that due to a mine’s Covid-19 concerns, driver compliancewith masking and temperature checks were now conditions of truck entry through themine’s gate. MSHA Compl. at 2; *see also* Walker Ex. WI-6 (L). It isundisputed that the new requirements were the subject of a driver group textinvolving the Complainant, and she and several other drivers subsequentlyparked their trucks.[10]

 

While the Mine Actgrants miners the right to complain of a safety, health, or danger violation,it does not expressly state that miners have the right to refuse to work undersuch circumstances. Nevertheless, both the Commission and the courts haverecognized the right to refuse to work in the face of such perceived danger. *See**Dolan v. F & E Erection Co.*, 22 FMSHRC 171, 177 (Feb. 2000) (citing *Pricev. Montery Coal Co.*, 12 FMSHRC 1505, 1514 (Aug. 1990); *Sec’y of Labor onbehalf of Cooley v. Ottawa Silica Co.*, 6 FMSHRC 516, 520 (Mar. 1984)). Tobe considered “protected,” work refusals must be based upon a “good faith,reasonable belief in a hazardous condition.” *Sec’y of Labor on behalf of**Robinette v. United Castle Coal Co.*, 3 FMSHRC 803, 812 (Apr. 1981); *accord**Gilbert v. FMSHRC*, 866 F.2d 1433, 1439 (D.C. Cir. 1989). Consistent withthe requirement that the complainant establish a good faith, reasonable beliefin a hazard, “a miner refusing work should ordinarily communicate, or at leastattempt to communicate, to some representative of the operator his belief inthe safety or health hazard at issue.” *Sec’y of Labor on behalf of**Dunmirev.**N. Coal Co*., 4 FMSHRC 126, 133 (Feb. 1982).

 

In this instance,Complainant has not alleged that the work stoppage arose from concerns regardingpotential adverse health or safety impacts associated with the new mine siterequirements. Rather, she stated that the basis for her and other drivers’ objectionswas that the policy was understood to have been newly instituted during thatshift, and that it was contrary to the policy that previously applied todrivers who would not be exiting their trucks while at the mine. In bringingher complaint to MSHA regarding this incident, Complainant never alleged thatconcern with health or safety impacts prompted her involvement in it. Rather, herconcern was solely regarding how the issue was handled internally by Capurro. *See*MSHA Compl. at 2 (“As it turns out, [Capurro’s] acting supervisor was wrong[about the new mine policy] and the whole incident was a waste of time, energyand emotion by her lack of due diligence. . . [O]ur Supervisor then gotinvolved when the issue became too big for our acting supervisor . . . .”[11]

 

In responding toCapurro’s Motion, Complainant provides contemporaneous evidence, in the form ofcopies of her own texts with General Manager of Mining Division Peck. The textsfurther establish that she was not objecting to compliance with the mine’s newmasking and temperature check requirement on safety or health grounds. *See*WalkerEx. WI-6 (c) (“I’m trying to work within the rules but don’t [think?] that thatwas cool to spring [on] us. Was there not a meeting?”); Walker Ex. WI-6 (h)(“Did you guys have a meeting on this with the mine? Feels really weird we wereinformed on the road like that[.]”).

 

Thus, there is noclaim by Complainant that any disparate treatment of her with respect to theAugust 3rd incident is connected to any activity protected by the Mine Act inwhich she alleges to have engaged. Instead, this incident is more in line with whatappears to be her myriad other general complaints regarding how Capurro MiningDivision management carried out day-to-day operations.[12]

 

Complainant’sissues with masks extend beyond requirements imposed by the mine, to alsoinclude how Capurro carried out its own masking policy. Again, however,Complainant’s issue was not that wearing masks posed any sort of health orsafety hazard, either in general or while carrying out her duties. Rather, herobjection was that the policy was inconsistently enforced. Walker Ex. WI-6 (x);(a-1). Complainant pointed to when she was asked to wear a mask by management whileindoors, and although she proceeded to go outside instead of putting a mask on,management still requested that she put one on. MSHA Compl. at 2 (“made to puton a mas[k]outside just so my safety director could see me, ‘Wear one for a fewseconds’”); Walker Ex. WI-6 (t). When describing this incident, the Complainantprovided no indication that this request impacted her medically, but ratherjust that she was asked to do so – again, aligning more with a generalgrievance.

 

Moreover,Complainant’s issues with masks appear to stem from her personal views, as shestates in texts with management, that she is an employee who is against masks. Ex.WI-6 (o). While Complainant indicated in texts with management that she couldwear a mask while working, she also communicated during the same text exchangethat she and her husband will “stand true to beliefs” and “will not bow to ourgeneration of sheeples[s]” if they are asked to wear a mask in a situation thatcan be “worked around.” Walker Ex. WI-6 (R). 

 

**2.    ****SpeedingInfractions**

 

Complainant alsoalleges that Capurro treated her differently than other drivers, including herown husband, with respect to discipline for violating Capurro’s speeding policies.105(c)(3) Compl. at 2. As background, in her Complaint to MSHA, Complainantstated that she “spent many days off for speeding and held accountable as Iaccepted my responsibility for my actions. It was later after checking thatothers also had speeding infractions but were not given days off and batcheswere even thrown in the garbage with no time off.” MSHA Compl. at 2.

 

Again, Complainantfails to suggest in either complaint that there was any protected activity inwhich she engaged that may have prompted this alleged disparate treatment. Atmost, during the MSHA investigation Complainant attributed some of the speedinginfractions she incurred to the lack of a working speedometer in the first truckshe was assigned, Truck 29, and claims that she had earlier alerted Capurro tothat fact. Complainant Statement at 2; Questionnaire at 3, 4. Capurro, in its Motion,disputes that Complainant had previously notified it as to the condition of thespeedometer. Resp’t Mot. at 12-13. This conflict need not be resolved, however,because Capurro provided documentary evidence indicating that Complainant was assignedTruck 29 only during her first month and was soon assigned other trucks todrive for the remaining *eight or so months* while she drove for Capurro. Resp’tMot., Ex. 10 (timecards) & 12 (truck assignments). Complainant does notdispute this, nor has she alleged speedometer problems with those other trucksled to her additional speeding infractions. *Cf. Metz v. Carmeuse Lime, Inc.*,34 FMSHRC 1820, 1825-26 (Aug. 2012) (finding termination of complainant two tothree weeks after his safety-related complaints indicated employer’sdiscriminatory motivation); *Bradley v. Belva Coal Co.*, 4 FMSHRC 982,983, 992-93 (June 1982) (concluding that termination of complainant the sameday he had engaged in a protected work refusal was indicia of employer’sdiscriminatory motivation).

 

Capurro citedComplainant 21 more times for speeding instances during that period. While Complainanttook issue with the basis for a few of the later infractions during the MSHAinvestigation (Complainant Statement at 4-5), consistent with her earlieradmission that she accepted responsibility for her speeding infraction record,she does not dispute that she incurred many additional speeding infractionsthat she did not challenge at the time.[13]

 

**3.    ****Repair Incident**

 

In her complaintto MSHA, the Complainant obliquely referred to another incident that occurredon March 2, 2020—again relatively early in her tenure at Capurro. She describedit as her as having been required to wait for truck repairs at a mine site. MSHACompl. at 2. In her statement to MSHA, the Complainant alleged that she “onetime red tagged the truck and they cut it off and put it back in service.” Shesubsequently explained, however, that, at that point, the truck had alreadybeen repaired at the mine, which permitted her to return to the Capurro truckshop. It was there that she proceeded to red tag the repaired truck out of anadmitted fit of pique, stating “I was tired and upset that I was getting toldtwo different things. So that is when I red tagged the truck and told them theycan figure it out.” Complainant Statement at 3.

 

When the MSHA Investigatorasked Complainant how her reporting of safety issues led to her termination,she responded not with specifics but instead simply claimed that she had becomea “pain” on reporting to Capurro issues with trucks and safety procedures notbeing followed. *Id*. at 4. However, text messages between Complainant andCapurro management, provided by the Complainant herself, include positive managementfeedback to Complainant’s safety suggestions. Walker Ex. WI-6 (p), (w).

 

**4.    ****DownTime for Necessary Truck Washing******

 

Complainant alsoalleges disparate treatment regarding the discipline she received followinginstances in which she admitted to taking more time than routinely allotted towash her assigned truck. While her Complaint can certainly be read to involve asafety matter (“when it is wet and the mag on the mine dries in your sensors,it is like concrete, therefore setting off the ABS”), her claim is not that thediscipline she received was for taking too long to clean her truck to fix theproblem. Rather, the discipline was for her not obtaining the required priorapproval before taking additional time. *See* MSHA Compl. at 2. Complainantdoes not dispute that Capurro contemplated as a matter of policy thatadditional truck washing time could be necessary. *See* Resp’t Ex. 8 atMSD0110 (noting the Plan for Improvement states “Be in contact with immediatesupervisor to inform them of any washing of trucks going longer than 30mins.”). Complainant again raises the issue as one in which allegedlysimilarly-situated drivers were not disciplined, but also again withoutalleging that Capurro’s disparate treatment towards her was due to her exerciseof protected activity. As with the speeding infractions, Capurro documented theimposition of progressive discipline for not obtaining the required priorapproval, starting with coaching from her supervisor. *Id.,*Ex. 10 atMSD0551, MSD0574, MSD0533.

 

**5.    ****Falsification ofDocuments**

 

The finalallegation contained in the Complaint to the Commission that bears anyresemblance to a claim that the Complainant engaged in an exercise of protectedactivity is her contention that she could prove that Capurro had “falsifiedMSHA documents.” Specifically, she stated “[p]lease also be aware that I willalso be filing [an] MSHA Hazard complaint that will contain actual mine safetydocuments of falsification by” Capurro’s Mine Division management. 105(c)(3)Compl. at 1.

 

            Complainantdid not include this falsification allegation in either her Complaint to MSHAor in her formal November 17, 2020 statement to MSHA Special InvestigatorJackson. However, because it is a serious allegation, I have endeavored todiscern from the documents provided what the Complainant is referring to, inthe context of her relationship with Capurro, during the period of heremployment and afterwards.

 

            TheComplainant’s only mention of “falsification” involving mine safety documentsis in her October 29, 2020 answers to questions from MSHA when she stated shewas not seeking reinstatement because her “safety information had also beenaltered and signature forged” by Capurro. Questionnaire at 2. Complainantclearly did not provide to MSHA during its investigation any support for thisclaim, thus her statement to the Commission almost six months later that she“will be filing” an MSHA Hazard Complaint regarding falsification of minesafety documents.

 

            Justas importantly, if not more so, the Complaint to the Commission does not comeclose to alleging that Complainant held this belief regarding falsification, ingood faith or otherwise, prior to her termination, and that Capurro had anyknowledge that Complainant held this view. *Cf. Pero*, 22 FMSHRC at 1364-65(finding that complainant had engaged in protected activity prior to herdischarge when she had informed superiors that she believed company wasfalsifying lost-day information on MSHA 7000-1 forms). Absent any claim byComplainant that such was the case, her prolonged and mere promise to provide evidenceof falsification, now that she no longer works for the company, does notqualify as protected activity that could have motivated the company toterminate her.

 

            Accordingly,I grant Capurro’s Motion on the ground that there remains no genuine issue ofmaterial fact as to whether Complainant engaged in protected activity asalleged in her Complaint to the Commission. I thus do not reach Capurro’salternative ground for summary decision, which is that it has established as amatter of law that any protected activity on the part of Complainant was notthe “but for” cause of her termination.

 

**CONCLUSION**

** **

For the foregoingreasons Respondent’s Motion for Summary Decision in this proceeding is **GRANTED**and Complainant’s section 105(c)(3) proceeding is **DISMISSED**.

 

 

 

 

/s/John T. Sullivan

John T. Sullivan

Administrative LawJudge

 

Distribution:

Maria T. Walker, 115Selway Rd., Kooskia, ID 83539 (morton4x4@gmail.com) 

 

Sarah A. Ferguson,Esq., McDonald Carano, 100 W. Liberty St., 10th Floor, Reno, NV89501 (sferguson@mcdonaldcarano.com)

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[1] Prior to heremployment at Capurro, Complainant had six years of truck driving experience. Questionnaireat 2. Complainant’s husband, Mr. William Walker, was hired in the same positionby Capurro at approximately the same time. Resp’t Mot. Ex. 1, ¶ 13.

[2]The Exit Interviewcited a specific example of disruption it attributed to the Complainant. Accordingto Capurro, Complainant had recently, in a group text thread, objected to aCovid-19 temperature check protocol, which in turn caused “several others tofear temperature checks and park several pieces of equipment causing hardshipto the employer and the employer[’]s inability to perform customer needs.”

[3] The MSHAcomplaint includes (1) a completed MSHA Form 2000-123 titled, “DiscriminationComplaint,” and (2) MSHA Form 2000-124 titled, “Discrimination Report,” aone-page narrative dated October 13, 2020, describing the basis for thecomplaint. While her MSHA Form 2000-123 stated that she would “possibly” seektemporary reinstatement, Complainant later informed MSHA that she was not interestedin returning to work for Capurro.

[4] The initialpleadings in this case, along with the initial conversation with the parties,indicated that not only the pro se Complainant, but also Capurro’s ablecounsel, viewed this Commission proceeding as an appeal of the Secretary’sdecision not to pursue the case, rather than the de novo proceedingcontemplated by section 105(c)(3). Such an erroneous impression may haveresulted from the final instruction in the MSHA form letter concerning thefiling of a section 105(c)(3) complaint, which refers to any subsequent Commissioncase as an “appeal file.”

[5] MSHA hadindicated that the agency would take approximately three months to fully answerthe FOIA request. During this time Complainant was expecting to complete her plannedrelocation to a town in Idaho approximately 500 miles from Carlin.

[6] In the interim,Commission staff attempted to cure the absence in her section 105(c)(3) Complaintof the relief that Complainant was seeking. *See* Commission ProceduralRule 42, 29 C.F.R. § 2700.42 (“A discrimination complaint shall include . . . astatement of the relief requested.”). By e-mail dated September 20, 2021,Complainant responded she was seeking $5,000,000. She also indicated her desirethat the case result in Capurro firing or otherwise disciplining various membersof its Mining Division management.

Complainant wasthereupon informed that such requests far exceeded any remedy conceivablypermitted by section 105(c). *See Sec’y on behalf of Rieke v. Akzo NobelSalt, Inc.*, 19 FMSHRC 1254, 1257-60 (July 1997) (discussing that goal ofMine Act is to make discriminatees whole). In the absence of a serious responsefrom Complainant, I am assuming that her statement to MSHA during itsinvestigation that she was seeking backpay, but not reinstatement, extends toher case before the Commission.

[7] The Commissionwas not holding in-person hearings through 2021 due to the changingcircumstances regarding Covid-19.

[8] In responding tothe Motion for Summary Decision, Complainant included a copy of her letter tothe superior of a Nevada Highway Patrol Commercial Enforcement Officer, inwhich she accused the officer of having accepted a bribe from Capurro. DatedOctober 19, 2021, the letter appears to have been prompted by informationComplainant would have then recently learned through the discovery process inthis case. *See* Walker Ex. WV-1(a) & (b).

[9] The section105(c)(3) Complaint also included absurdly false information. It stated that“[m]y Exit interview did not even specify what I was being fired for.” Asdiscussed, the Capurro Exit Interview sheet clearly and succinctly provided thereasons Capurro gave Complainant for her termination, doing so under theheading “Reason for Termination.” Complainant not only attached this to herComplaint to the Commission, but her very first exhibit submitted is a copy ofthe Exit Interview (which also indicates that she refused to sign it). WalkerEx. WI-1.

[10] Contrary to thesection 105(c)(3) Complaint, the Exit Interview does not state that theComplainant initiated the work stoppage by being the first to park her truck. Rather,the Exit Interview merely states that after the Complainant stated in the grouptext her refusal to comply with the temperature check, several other driversalso parked their equipment.

[11] The MSHAComplaint goes on to allude to Complainant having, on more than one occasion,“issues with ‘Fill-in’ supervisors, as my boss was gone on many personaltrips.” There is no mention of protected activity having prompted any of the“issues.”

[12] Other documentssubmitted by the Complainant in response to Capurro’s Motion indicate that at onetime she feared an adverse impact from the use of the specific temperaturecheck device being used by the mine. Complainant’s fear, however, had to dowith whether she would be able to subsequently continue with her side avocationas a “light worker,” not as a driver for Capurro. Walker Ex. WI-6 (C),WII-3(k),(l)). Complainant’s documents describe a “light worker” as someone whofacilitates “quantum healing hypnosis.” Walker Ex. WV-2 (a)-(h). Even then, asher own documents show, Capurro Trucking management sent her pictures andadditional information regarding the type of thermometer used for temperaturechecks and allowed the Complainant to take a day off, at her request, whilemanagement “figures out particulars.” Walker Ex. WI-6 (g)-(j). This appears tohave alleviated Complainants’ concern, and she did not subsequently raise withMSHA her concern that the temperature check device would adversely impact her “lightworker” capabilities or that the prospect for its use on her prompted her topark her truck.

[13] Absent anallegation of protected activity that prompted the Capurro’s alleged disparatetreatment of the Complainant with respect to speeding infractions, any furtherconflicts between the parties’ accounts on this issue need not be resolved. Inote, however, that in its Motion Capurro documented that Complainant was notthe only driver suspended for speeding infractions over the course of heremployment. *See* Resp’t Mot. at 4 & Ex. 5 (showing documentation of sixother drivers suspended). Complainant herself also provided documentation ofother drivers receiving suspensions after speeding, contradicting her own complaints.Walker Ex. WI-7 (A)-(B), WI-7 (J), (O), (P), and WI-7 (a) 24, 26 (featuring recordsof various other drivers who received one-day and three-day suspensions forspeeding). Capurro’s documents further contradict Complainant’s claim to MSHAthat “[e]very time I was written up for speeding, I was given 3 days off.” Questionnaireat 3. Of the 22 times Capurro cited the Complainant for speeding, the company’srecords show that only six times was she disciplined, only twice was shesuspended, and only once was she suspended for three days. Resp’t Mot. at 6-7& Resp’t Ex. 5. Thus, there is evidence in the case that Complainant alsobenefitted from any tendency on the part of Capurro to not strictly enforce itsdisciplinary policies with respect to speeding infractions.