**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

OFFICEOF ADMINISTRATIVE LAW JUDGES

1331PENNSYLVANIA  AVENUE N. W., SUITE 520N

WASHINGTON, D.C.20004-1710

Telephone No.: 202-434-9933

Telecopier No.:202-434-9949

 

August4, 2020

 
| SECRETARY  OF LABOR,           U.S. DEPARTMENT OF LABOR on behalf of WILLIAM R.  WHITMORE,                        

             Complainant

 

                        v.

 

 

 

 

 

YAGER MATERIALS CORP.,

                        Respondent                                                                                         |   |   | TEMPORARY  REINSTATEMENT

 

Docket  No. KENT 2020-0116-DM

Mine:  Riverside Stone Mine

Mine  ID: 15-00081

 

 

 

 

Docket  No. KENT 2020-0117-DM

Mine:  Riverside Stone Mine

Mine  ID: 15-18549

  |
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**DECISION AND ORDERGRANTING TEMPORARY REINSTATEMENT**

 

Appearances: Thomas J. Motzny, Esq., Nashville, Tennessee, for the Secretary of Labor

 

Tony Oppegard, Esq.,Lexington, Kentucky, and Wes Addington, Esq., Whitesburg, Kentucky, for theComplainant

 

Arthur M.Wolfson, Esq., Fisher & Phillips, LLP, for the Respondent

 

Before: Judge William B. Moran

            This matter is before the Court on anapplication for temporary reinstatement (“Application”) filed by the Secretaryof Labor on behalf of Complainant William R. Whitmore pursuant to Section105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(2) (“the Act”). The application, which was filed on July 9, 2020, seeksreinstatement of the Complainant “to the position he held immediately prior tothe discharge, or to a similar position, at the same rate of pay, same shiftassignment, and with the same or equivalent duties.”  Application at 3.  Avideo hearing on the Application was held on July 29, 2020. For the reasonsthat follow, the application is granted. Respondent is **ORDERED** toimmediately reinstate the Complainant, William R. Whitmore, to the position heheld immediately prior to his discharge, or to a similar position, at the samerate of pay, and the same shift assignment, and with the same or equivalentduties.

 

**SUMMARY OF THE EVIDENCE**

****Asset forth below in greater detail, on the basis of credible testimony presentedduring the July 29, 2020 video hearing, the Court finds that the Complainantestablished several instances of protected activity by voicing safetycomplaints, that the Respondent had knowledge of those safety complaints, andthat the Complainant’s suspension and termination occurred soon after thosesafety complaints were made. The Respondent’s defense did nothing to dispel thecredibility of the Complainant’s safety complaints, but rather spoke to analternative basis for the Complainant’s firing. That defense did not, in anyway, tend to show that Mr. Whitmore’s claim was frivolous. Accordingly, theCourt finds that the Mr. Whitmore’s Complaint was not frivolously brought and onthat basis that the Complainant is to be immediately reinstated to his formerposition. 

**HEARING TESTIMONY AND FINDINGS OF FACT**[1]

****Mr.William Whitmore, the Complainant, testified first. Whitmore began hisemployment with Respondent, Yager Materials Corp, on September 30, 2019. Hisjob title was “maintenance manager.”[2]Tr. 19-20. The name of the mine for both its underground and surface operationsis Riverside Stone. Tr. 60.  He described his job duties as “[s]ite-widemaintenance management for the underground mine and the surface mine. ... [whichentailed] [a]ll of the plant equipment that processes the aggregate and alsoall of the mobile equipment that produces the aggregate.” [3] Tr. 20. Itis noted that, among his work experience, Whitmore is an MSHA certifiedinstructor and has done a lot of miner safety training in the course of his 36years of mining experience. Tr. 62. Whitmore was terminated (fired) from hisjob at Yager on April 29, 2020. *Id.*

            Whitmore testified that, during January2020, while he was on medical leave, he anonymously reported safety incidents, whichoccurred prior to that leave, to MSHA through an online method provided by MSHAto report such matters. Tr. 21-24. The incidents he reported through the MSHA onlinemethod involved inadequate training and improper documentation of suchtraining, relating to mobile equipment operators. *Id.* Upon his return towork, though no one accused Whitmore as the source for the anonymous complaint,Bryan Ory, the site’s general manager, who was Whitmore’s immediate supervisorat Yager, acted differently toward him. Tr. 21, 25. Whitmore presented credibleexamples to support his claim that Ory treated him differently upon his returnto work following his medical leave. *E.g*. Tr. 28. 

****DuringApril 2020, Whitmore raised safety issues with Yager. The first was his concernthat a contractor working on-site was not complying with the mine’s COVID-19restrictions and protocols. Tr. 28. Those protocols were put in place byYager’s parent company, Carmeuse. *Id.*He emailed his concern about thisto Jenn Carnley, Respondent’s office manager, and a human resources employee,described as a “HR generalist.” Tr. 29. Several other Yager personnel wereincluded in Whitmore’s email to Carnley, including Bryan Ory. Ex. C 1 and Tr.30. Following that, Whitmore had a face-to-face discussion with Ory about thisissue. Tr. 31. 

            A separate instance occurred on April17, 2020. This involved the Complainant’s assertion that there was a near missaccident while he was driving in the company’s pickup truck as he came upon ahaul truck using the same road. According to Whitmore’s account which, *forpurposes of this hearing*, the Court finds to have been credible, a 70 to 75ton haul truck was speeding on the road and upon hitting a dip in the road,large pieces of aggregate (limestone ore) fell off the haul truck, narrowlymissing hitting Whitmore’s vehicle. Tr. 32. Following that event, Whitmoredrove to Ory’s office and related the event to him, including his suggestionsto remedy the safety issue he perceived. Tr. 33. Whitmore contended that Oryacted disinterested about the matter. Whitmore also emailed others within theRespondent’s chain of authority about this event. Tr. 34-35 and Ex. C 2, C 3, C4, and C 5.

            Whitmore then identified another safetyconcern he raised with Yager. This also occurred in April 2020. Tr. 41, Ex. C6. This matter involved maintenance concerns and his recommendation that equipmentwith safety issues should be taken out of service until repairs were made. Inconjunction with this issue, Whitmore created a spreadsheet identifying safety deficiencieswith particular pieces of equipment. This spreadsheet included some handwrittenadditional safety concerns involving inadequate steering control on loadedtrucks. Ex C 6, with Whitmore’s signature on the exhibit and dated April 21,2020.  That document was created entirely by Mr. Whitmore, including the handwrittennotes on it. Tr. 76-77. Whitmore testified, again the Court finding histestimony to have been credible, *in the context of this temporaryreemployment proceeding*, that he reported this to Ory, placing it on hisdesk. Tr. 41-42.  The report Whitmore created was not an isolated instance, ashe presented similar such reports “every couple of weeks.” Tr. 42. The next dayWhitmore found the spreadsheet returned to his desk, with no comment from Ory. Tr.43. Whitmore informed the Court that reviewing the preshift notes anddeficiencies were part of his job. Tr. 44. Whitmore provided credible detailabout the nature of the safety issues he identified in that spreadsheet.  Tr.45-50.

            Following the safety concerns expressedby Whitmore, as described above, on April 23rd, that is to say, twodays after the spreadsheet was presented to Ory, Whitmore was instructed byLisa Wellman to be in Ory’s office for a telephone conference that day. Tr. 51.During that conference Wellman raised questions about Whitmore’s interactionwith a new employee, who was identified for purposes of this hearing and withthe agreement of all parties only as “Mike.” Whitmore was Mike’s directsupervisor. Tr. 77. Focusing upon the only issue of potential pertinence tothis proceeding was the Respondent’s interest as to whether Whitmore had spokento Mike on the issue of whether the new employee’s probationary period could beextended. Whitmore denied ever discussing that subject with Mike. [4] Tr. 55. Theupshot of the telephone conversation was that Whitmore was informed he wassuspended for three days, “[p]ending an investigation of conversations [thathe, Whitmore] had with Mike.” *Id.*The suspension began on April 23rd.Tr. 56. Subsequently, Whitmore was told to appear at Yager’s Owensborocorporate office on April 29th. Several Yager management personswere at the meeting, including Ory, who was present, via computer, fromBattletown. Tr. 57-58. Lisa Wellman directed the meeting, and informed theComplainant that he was being terminated. Tr.58. According to Whitmore, hecould not get an answer as to reason for his firing but eventually Wellman, asWhitmore related her response to him, informed him that “management cannot say toan employee “what [he Whitmore allegedly] said [to Mike] and they determinedthat was unacceptable and that was grounds for my dismissal.” Tr. 58-59,reflecting Whitmore’s recounting of Wellman’s reason for his firing. Followingthat, he was on that day given his termination letter, a severance document andinformed that he had 21 days to respond to it. Tr. 59. Whitmore did not signthe agreement presented to him by Yager. *Id.*

**Bothat the time of the testimony under cross-examination of Mr. Whitmore and uponreview of the transcript of that cross-examination, (Tr. 78- 97), and recallingthat the Respondent has advanced in its defense the single claim that Whitmoremade inappropriate remarks about the probationary period for the employeeidentified as “Mike,” the Court has concluded that only the following hasrelevance to this proceeding seeking temporary reinstatement. Whitmore wasquestioned by Respondent about his duties as maintenance manager and inparticular about Exhibit C 6 which, it will be recalled, involved alleged safetyissues Whitmore recorded on that exhibit. Though that exhibit listed “up” foreach equipment issue, the term being used to declare that the equipment wasstill being operated, Whitmore stated that he lacked authority to tag outequipment, making it unavailable for service. The Court finds that theRespondent’s line of questioning regarding the equipment Whitmore listed withdeficiencies did not advance the Respondent’s attempts to diminish theinformation contained in that exhibit. Whitmore added that while he tagged outa lot of equipment, beyond the equipment listed in Ex. C 6, “in mostcases the tags were disregarded and the equipment was run anyway.” Tr. 84. Itis noted that the Respondent presented no evidence in its case on rebuttal tochallenge Whitmore’s claim on that score. 

Challenged byWhitmore’s private counsel as to the Respondent’s line of questioning about Ex.C 6 and Respondent’s Counsel’s admission that such questions were directed to Whitmore’sveracity about the information in that exhibit, Whitmore’s private counselnoted that credibility findings are not within the ambit of a temporaryreinstatement proceeding. Respondent’s Counsel differed on that score,contending that the views of two Commissioner’s in *Shaffer v. Marion County*,40 FMSHRC 39, (Feb. 2018) (“*Shaffer*”) supported the line of questioning. The Court ruled by noting again that the Respondent’s defense had been limitedto the claim that Whitmore had made inappropriate remarks to Mike in connectionwith that employees probationary period. The Court then noted its view that theexpressions s of any two Commissioners has no precedential value. Tr. 87-88.  Morewill be said about *Shaffer*in the discussion regarding conclusions oflaw, *infra*. The Court also agreed that credibility determinations mustawait the full discrimination action. 

However, the Courtpermitted Respondent’s attorney some leeway to continue that line ofquestioning on the basis that “the rule itself [addressing temporaryreinstatement proceedings, at 29 C.F.R. § 2700.45(d)] says that the respondentshall have an opportunity to cross-examine any witnesses called by theSecretary and may present testimony and documentary evidence in support of its positionthat the complaint was frivolously brought. Tr. 88. Thus given limited leewayto proceed, the Court finds that in the few questions that followed, theRespondent made no headway on that score to advance the contention thatWhitmore’s complaint was frivolous. [5]The Court elaborated on this subject with the following remark: 

The issue with reference to C6might be the subject of a full hearing on discrimination, but really, forpurposes of this proceeding it is just whether the respondent was aware thatMr. Whitmore created this document. And his testimony was, if I have itcorrect, that he created this document, put that and others on the desk of Mr.Ory, and so that's the limited focus. Not whether, in fact, a backup alarm,reverse lights were fixed and not whether the lights that were out werecorrected. The same is true for the question [Respomdent’s Attorney] just askedabout documentation and training. The subject for this hearing [in the contextof this line of questioning is] did the complainant raise issues with Yagerabout training and about documentation of the training. Not into theparticulars of that. That is further down the road. So that's my ruling on thatand so you can proceed on to something else. 

Tr. 92. 

            When Respondent’s Counsel questionedWhitmore about whether, in Ex. C 1, he specifically raised the subject of *socialdistancing* in connection with the COVID 19 pandemic, in that email, theCourt noted that while *those words* were not expressly in the email, itwas clearly the import of the message. When next asked if he received aresponse to that email, over an objection to the question by the Secretary’sattorney, the Court allowed the question but observed that: 

for purposes of the temporary reinstatementapplication, A, the respondent has not alleged that had anything to do withWhitmore's termination. Another point is any employee, Mr. Whitmore doesn'thave to be making a safety complaint or safety issue about those within hisparticular ambit, in other words those people that work directly under him ornot. If I'm electrician at a mine, which is a shocking suggestion, but if Iwere and I make a complaint about someone who has a totally different job doingsomething, I can still make that complaint to management or I can make ananonymous call. It doesn't have to be something that's in my circle ofauthority. So, again, I come back to the point the issue in C1 is that Mr.Whitmore transmitted this message to Jenn Carnley and that's the extent of it. 

Continuing, the Court noted that: 

[h]ow they respond to [myelectrician making a safety complaint example] gets far afield to what [theCourt has] to determine in the narrow scope of this proceeding.” [As appliedhere], “[d]id Mr. Whitmore send this email. Doesn't seem to be any challengeabout that. So he communicated this concern and I think beyond that, when weget into issues about well, what did the respondent do about that, that, in myview, gets into the question of a full discrimination proceeding and for determinationperhaps in such a proceeding if that occurs. That's my ruling on that. It isfar afield.

Tr. 95-96 

With Respondent’s Counsel expressing that he was unsurewhere the Court’s ruling pointed, the Court then added, 

[i]t leaves you, I'm not interestedin this hearing, it might be very interesting in a full discriminationproceeding, but I'm not interested in this proceeding whether the company didsomething constructive in reaction to that because that wouldn't tell me, thatwouldn't instruct me that the complaint was frivolously brought and I would alsonote that this was not the only issue that was raised by Mr. Whitmore. Thereare numerous subjects that he raised during his direct testimony. It iscertainly not limited to this. For my purposes, ... I view this as whether the complainantissued what is effectively a complaint and a concern, safety and healthconcern, and [ ] there's no challenge to that. He did communicate that.  

Tr.96

The Secretary thenrested its case and the rebuttal testimony from the Respondent proceeded. Tr.98. Ms. Lisa Wellman was then called by the Respondent. She is the HR managerfor Carmeuse. She reports to Melissa Croll and for any other operations withinCarmeuse she reports up through Victoria Neff.  Ms. Neff is the director of HRfor the field operations for Carmeuse but she does not have responsibilitiesover Yager. Tr. 102-103. For Yager related matters, Wellman reports to Ms.Croll. Tr.103. As to this Whitmore proceeding, Wellman informed that she“conducted the investigation and ultimately made the recommendation to MelissaCroll for [Whitmore’s] termination. Tr. 104, 113-114. Again, Respondent’sposition is that it fired Whitmore solely for his “inappropriate commentsregarding extending a probationary period for an employee with [a] medicalcondition.” *Id.*Wellman then related the alleged circumstances regardedthe claimed inappropriate comments, which comments, as have been noted, Mr.Whitmore has denied making them.  There is no purpose is an extended retellingof Ms. Wellman’s testimony on this score. In sum, she conducted herinvestigation, concluded that Mr. Whitmore’s version was not true and on thatbasis he was fired.[6]Wellman’s recommendation to terminate Whitmore was made to Ms. Croll, whoagreed with that outcome. Tr. 115. 

At the conclusion ofMs. Wellman’s testimony the Court took the opportunity to remark that 

for the purposes of the decision Ihave to make that I'm able to and I must compartmentalize as follows: In box A,if you will, I have Mr. Whitmore's multitude of safety and health issues whichhe raised. I'm not speaking to Miss Wellman's knowledge of that. I have box A,I have all of that testimony. And then in box B I have, if you will, the Mikeissue. It seems to me that I don't have to resolve the Mike issue in thecontext of a temporary reinstatement application. If I accept for the momentthat Miss Wellman knew nothing about any of this, I'm not suggesting you did,that nobody at Yager knew anything about any of these things, it doesn't matterfor purposes of the temporary application proceeding. What I have to find arethe bare elements, which I've reviewed already and so that would not make up,even accepted as absolutely true, that transforms Mr. Whitmore's applicationinto a frivolous one. That's my view of it.            Tr. 117.

      Respondent then called Melissa Croll. Ms.Croll is based in Pittsburgh, PA and is employed by Carmeuse Americas. Tr. 126.She is the vice-president of human resource for Carmeuse Americas. *Id.* Aspertinent to this proceeding, Ms. Croll stated that Lisa Wellman reports to heronly for Yager Materials activities. Tr. 127. Croll determines matters ofemployee terminations and she approved Whitmore’s firing. Tr. 128. She statedthat the termination was merited because Whitmore’s remarks “that he made wereinappropriate and illegal and was worthy of termination.” Tr. 128. Thus, sheaccepted Wellman’s recommendation. *Id.*As with Wellman’s testimony,Croll maintained that she knew nothing about Whitmore’s various safety relatedcomplaints. Tr. 129.

**Commission Case Law on Applications forTemporary Reinstatement**

      The Commission has a venerable history regardingthe standard to be applied in applications for temporary reinstatement and byvirtue of that, the applicable law to be applied in applications for temporaryreinstatement has been well established. A representative example expressing thelaw to be applied is set forth here:

Section 105(c) of the Act, 30U.S.C. § 815(c), prohibits discrimination against miners for exercising anyright afforded by the Act. Under Section 105(c)(2) of the Act, “if theSecretary finds that [a discrimination] complaint was not frivolously brought,the Commission, on an expedited basis upon application of the Secretary, shallorder the immediate reinstatement of the miner pending final order on thecomplaint.” 30 U.S.C. § 815(c)(2). The Commission has stated that the scope ofa temporary reinstatement hearing is therefore “narrow, being limited to adetermination by the judge as to whether a miner’s discrimination complaint isfrivolously brought.” *Sec’y of Labor on behalf of Price v. Jim Walter Res.,Inc.*, 9 FMSHRC 1305, 1306 (Aug. 1987), *aff’d*, 920 F.2d 738 (11thCir. 1990). This standard reflects a Congressional intent that “employersshould bear a proportionately greater burden of the risk of an erroneousdecision ***637** in a temporary reinstatement proceeding.” *Jim WalterRes., Inc. v. FMSHRC*, 920 F.2d 738, 748 (11th Cir. 1990). 

The Commission has explained that“it is not the judge’s duty ... to resolve [[[any] conflict in testimony at thispreliminary stage of proceedings.” *Sec’y of Labor on behalf of Albu v.Chicopee Coal Co.*, 21 FMSHRC 717, 719 (July 1999). *See also*,*Sec’y of Labor on behalf of Shaffer v. Marion County Coal* Co., No. WEVA2018-117-D, 40 FMSHRC ___, slip op. at 4, 9 (Feb. 8, 2018). Nevertheless, theJudge “need not accept testimony if it is demonstrably false, patentlyincredible, or obviously erroneous.” *Shaffer*, slip op. at 9 (Althen,Chairman, and Young, Comm’r). [“*Shaffer*”] [40 FMSHRC 39, 47].

The issues raised in a temporaryreinstatement hearing are “conceptually different from those implicated by theunderlying merits” of the miner’s discrimination claim. *JWR*, 920 F.2d at744. The temporary reinstatement proceeding addresses “whether the evidencemustered by the miner[] to date establishe[s] that [his] complaint[] [is]nonfrivolous, not whether there is sufficient evidence of discrimination tojustify permanent reinstatement.” *Id.*

While an applicant for temporaryreinstatement need not prove a prima facie case of discrimination, the elementsof a discrimination claim are relevant to the analysis of whether the evidencepresented satisfies the non-frivolous test. *Sec’y of Labor on behalf ofWilliamson v. CAM Mining, LLC*, 31 FMSHRC 1085, 1088 (Oct. 2009). In orderto establish a prima facie case of discrimination under the Act, a complainingminer must present evidence sufficient to support a conclusion that he engagedin protected activity, that he suffered an adverse employment action, and thatthe adverse action was motivated at least in part by that activity. *Turnerv. Nat’l Cement Co. of Cal.*, 33 FMSHRC 1059, 1064 (May 2011); *Sec’y ofLabor on behalf of Robinette v. United Castle Coal Co.*, 3 FMSHRC 803,817-18 (Apr. 1981); *Sec’y of Labor on behalf of Pasula v. Consolidation CoalCo., 2* FMSHRC 2786, 2799 (Oct. 1980), *rev’d on other grounds*, 663F.2d 1211 (3d Cir. 1981). The Commission has acknowledged that evidence ofmotivation is frequently indirect, and has identified several “circumstantialindicia of discriminatory intent: (i) hostility or animus toward the protectedactivity; (ii) knowledge of the protected activity, and (iii) coincidence intime between the protected activity and adverse action.” *Williamson*, 31FMSHRC at 1089; *Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp.*,3 FMSHRC 2508, 2510 (Nov. 1981), *rev’d on other grounds*, 709 F.2d 86(D.C. Cir. 1983). The question for the judge at this stage is whether there isa non-frivolous question as to the elements of the case. *Williamson*, 31FMSHRC at 1091. 

*D&H Mining*,40 FMSHRC 635, 636-637 (Mar. 19, 2018) (ALJ Miller) (“D&H”).

      Recently, however, the Court has noted thattwo Commissioners, Commissioner William Althen and Commissioner Michael Young,have expressed new perspectives about the standard required in applications fortemporary reinstatement. This occurred in *Sec’y of Labor on behalf ofShaffer v. Marion County Coal**Co*., 40 FMSHRC 39 (Feb. 2018) (“*Shaffer*”),wherein they introduced the view that the “preponderance of the evidence” playsa role in temporary reinstatements proceedings. This is new. As set forthbelow, in an examination by this Court of all prior Commission level decisions,it has not been able to find and therefore has not located any prior decisionintroducing that test into the temporary reinstatement analysis. In fact, asset forth below, a Commission majority opinion, which included Commissioner Young,disavowed consideration of engaging a preponderance test in such matters. *See*,*Williamson v. CAM Mining*, 31FMSHRC 1085 (Oct. 2009), *infra.*

Here is what Commissioners Young and Althen had tosay about the matter in *Shaffer*:

Thereis no presumptive right to temporary reinstatement. Rather, the complainant’sentitlement must be established by substantial evidence, as in any otherproceeding. Only the standard that the evidence must meet is diminished. Thus, **ina discrimination case**, the complainant bears the burden of provingdiscrimination by **a preponderance of the evidence**. *Sec’y of Labor onbehalf of Pasula v. Consolidation Coal Co*., 2 FMSHRC 2786, 2797-2800 (Oct.1980), rev’d on other grounds sub nom. *Consolidation Coal Co. v. Marshall*,663 F.2d 1211 (3d Cir. 1981); *Sec’y of Labor on behalf of Robinette v.United Castle Coal Co*., 3 FMSHRC 803, 817-18 (Apr. 1981). In contrast, atthis early stage of the proceedings, *the Secretary has the burden of proving**by a preponderance of the evidence** only that the claim is not frivolous.**Sec’y of Labor on behalf of Pappus*, 38 FMSHRC 137, 154 (Feb. 2016),rev’d on other grounds, *CalPortland Co. v. FMSHRC*, 839 F.3d 1153 (D.C.Cir. 2016).

**Preponderanceof the evidence** means the greater weight of the evidence, such that theSecretary has demonstrated that it is more probable than not that the claim isnot frivolous. **The burden of proof in a temporary reinstatement case,therefore, contains two legal standards: “preponderance of the evidence”and “““non-frivolous.”**

             Aswith all disputed claims, the outcome depends upon the evidence presented. Ifthe operator requests a hearing, the hearing is a full judicial proceeding. In *Secretaryof Labor on behalf of Gray v. North Fork Coal Corp*., 33 FMSHRC 27 (Jan.2011), the Commission quoted with approval the decision of the Eleventh Circuitregarding the nature of a temporary reinstatement hearing:

            At[the temporary reinstatement hearing], the employer has the opportunity to testthe credibility of any witnesses supporting the miner’s complaint throughcross-examination and may present his own testimony and documentary evidencecontesting the temporary reinstatement.... [T]he statute grants [the employer]the right to seek an adjudication from a neutral tribunal, prior to adeprivation of its property interest, with all the regalia of a full evidentiaryhearing at its disposal.

**40FMSHRC 39 at 42 (quoting *Jim Walter Res*., 920 F.2d at 747-748) (emphasisadded).

            Weglean two points. First, a temporary reinstatement hearing or proceeding is afull evidentiary process, albeit a greatly expedited one. The opportunity forsuch a hearing satisfies the operator’s due process rights.

            Second,the opportunity to test credibility identified by the Commission in *Gray*would be meaningless without a genuine exposition of the evidence presented. Ifversions of events diverge without dispositive proof of either, the outcome atthe reinstatement stage may not rest upon a choice between the versions, andthe miner must be reinstated. However, a Judge need not accept testimony if itis demonstrably false, patently incredible, or obviously erroneous, becausesuch evidence fails to qualify as “substantial evidence” upon which areasonable person might rely.

            Thus,all evidence relating to the adverse employment action is relevant in atemporary reinstatement proceeding -- even that which seems directed to anaffirmative defense or rebuttal of the miner’s claim. While we agree that theJudge should not make credibility and value determinations of the operator’srebuttal or affirmative defense, if the totality of the evidence or testimonyadmits of only one conclusion, there is no conflict to resolve. It is theJudge’s duty to determine whether the claim is frivolous, in light ofundisputed or conclusively-established facts and inescapable inferences. 

*Id.*at 46-47 (emphasis added).[7]

     Of course, the opinions of any twoCommissioners, as with the views of Commissioners Althen and Young recountedhere, when unaccompanied by other Commission *majority decisions subscribingto such views*, is of no precedential value. Commissioner Young has observedthis in *The American Coal Co.*,**35 FMSHRC 380 (Feb. 2013) (“*American Coal* ”), expressingthat: 

the Secretary *wasunable to persuade a majority of the Commission* of the propriety of thatdefinition then, at least in *Phelps Dodge* flaming combustion was theactual hazard occasioned by a stubborn grease fire ignited by cutting a pieceof mining equipment with a torch. *Id.* at 647. Two Commissioners rejectedthen the imposition of a *relevant* broader definition, in part based on areasonable concern about unintended consequences.*See id.* at 663 (Duffy and Young, concurring) (“Far-ranging conclusions,not necessary to the disposition of issues presented to the reviewing court inone case, may, ironically, end up constricting the court’s discretion insubsequent cases where the facts may be significantly different. 

*Id.*at 390 (Commissioner Young, concurring in part and dissenting inpart) (emphasis added).[8]

* *

**The Court’s Research of Commission CaseLaw on Applications for Temporary Reinstatement and the Term “preponderance ofevidence.”**

The Court’s research revealed fifteen (15) cases where thephrase**“*preponderance of evidence*”**was expressed, but *only*in *Shaffer* has the termbeen**employed to an applicant for temporary reinstatement*.*Whatfollows are the cases uncovered by the Court’s review.

 

**In *Cobra Natural Resources, LLC*, 35 FMSHRC 394 (Feb.2013), a temporary reinstatement proceeding, the Commission employed thephrase, but in the context of *an operator*affirmatively proving that alayoff justifies tolling temporary reinstatement by a preponderance of theevidence. *Id.*at 397**(citing*Gatlin*, 31 FMSHRC at 1055). 

In *KenAmerican Resources*, 31 FMSHRC 1050 (Oct. 2009), alsoa temporary reinstatement proceeding, the issue of whether the duration of atemporary reinstatement should be modified was involved. There, the Commissioninstructed that the judge “should determine whether [the mine operator] KenAmerican*has proven by a preponderance of the evidence* that the occurrence of thelayoff is a legitimate reason for tolling Mr. Gatlin’s economic reinstatement.... In sum, in order to justify termination of economic reinstatement, *KenAmericanmust prove by a preponderance of the evidence* that Mr. Gatlin’sinclusion in the layoff was entirely unrelated to his protected activities.” *Id.*at 1055 (emphasis added).[9]

In *C.R. Meyer and Sons Co.,*35 FMSHRC 1183 (May 2013),yet another temporary reinstatement proceeding, the question of tolling thereinstatement obligation was again involved. The phrase “preponderance of theevidence” arose there, but again only in the context of the mine operator’sburden, with the Commission stating “[s]hould the Secretary fail tosufficiently establish the possibility that any inclusion of Rodriguez in thelayoff might have been motivated by the miner’s protected activity, the judgemust then consider the entire record and determine*whether the operator*hasproven by a preponderance of the evidence that the layoff of local miners, ... justifiestolling its obligation to temporarily reinstate [the miner].” *Id.* at1188 (emphasis added).

In the temporary reinstatement proceeding of *CalPortland,*38FMSHRC 137, (Feb. 2016), a Commission majority affirmed the miner’s temporary reinstatement.In that case Commissioner Althen dissented on grounds not pertinent to thisreview of cases, referring to the “preponderance of the evidence,” but hisremark was *in the context of a full discrimination proceeding*, that “ifthe Secretary or [the miner] can prove by a preponderance of evidence thatCalPortland refused to hire [the miner] based on protected activity, [theminer] will be entitled to full relief under section 105(c). *Id.*at 148*,*n.**1

*Sec’y of Labor obo Williamson v. CAM Mining*, 31FMSHRC 1085 (Oct. 2009), is yet another temporary reinstatement matter but itis of particular importance regarding the preponderance of evidenceapplicability in such matters. There, an administrative law judge deniedreinstatement, a decision the Commission reversed and for which it ordered theimmediate reinstatement of the miner. Pointedly all four members then composingthe Commission, *which group included Commissioner Young*, stated: “wenote that evidence that Williamson was discharged for unprotected activityrelates to the operator’s rebuttal or affirmative defense. In essence, thejudge weighed the operator’s rebuttal or affirmative defense evidence againstthe Secretary’s evidence of a prima facie case. In doing so, the judge erred byassigning a greater burden of proof than is required**. In a temporaryreinstatement proceeding, the Secretary need not establish a prima faciecase of discrimination by a preponderance of the evidence. Rather, theSecretary was required to prove only that a non-frivolous issue exists as towhether Williamson’s discharge was motivated in part by his protected activity.***Id*. at 1091, also citing, *Chicopee Coal Co.,* 21 FMSHRC at 719(emphasis added).  

In *Reading Anthracite*, 22 FMSHRC 298, (Mar. 2000),involved was a review by the Commission vacating a judge’s determination thatReading did not violate the Act’s section 10(c) discrimination provision. Therethe miner had been previously temporarily reinstated. Reference to thepreponderance of the evidence appears only in the dissent. However, the dissentwas somewhat atypical because the dissenting commissioners agreed that thejudge erred; their dissent was that it was unnecessary to send the matter backto the judge and that the judge’s decision could simply be reversed, finding infavor of the complainant miner. The dissenting commissioners reminded that themine operator, “Reading must prove its affirmative defense by a preponderanceof the evidence,” *Id.* at 314, citing (*Sec’y of Labor on behalf ofPrice v. Jim Walter Resources, Inc*., 14 FMSHRC 1549, 1556 (Sept. 1992)). (“*Priceand Vacha*”).

Speaking of *Price and Vacha,*four members of the Commission*,*affirming the judge’s decision upon remand that Jim Walter Resourcesdiscriminatorily applied its drug program against the complainants, referred tothe “preponderance of the evidence” *but in the context of the mineoperator’s burden in its affirmative defense*, stating: “[a]n operator mustprove this affirmative defense by a preponderance of the evidence. *E.g*.,*Eastern Associated Coal*, 813 F.2d at 642.” 14 FMSHRC 1549 at 1556. 

In *Sec’y of Labor on behalf of Bernardyn v. ReadingAnthracite,*23 FMSHRC 924, (Sept. 2001), the Commission again remanded thematter to the administrative law judge, after that judge again found no violationof section 105(c)(1). This decision reiterates the point made in *Price andVacha*, and cites to that decision for the principle that in order “[t]o makeout its affirmative defense, *the operator must prove by a preponderance ofthe evidence* that it would have taken the adverse action in any eventbecause of unprotected activity alone. *Id*. at 929. (emphasis added).

*Hopkins County Coal*, 38 FMSHRC 1317 (June 2016)is yet another decision by the Commission which refers to the phrase “preponderanceof the evidence,” but its use is not of value to this discussion, as itemployed the phrase only in the context of the Secretary’s burden to establishthe validity of a section 104(b) order, a burden which the Secretary met. Thediscrimination matter involved a separate dispute. It involved violations whichwere issued in response to the mine’s refusal to release personnel records toinspectors as part of an MSHA discrimination investigation, records which theSecretary sought in order to determine whether there was a violation of theanti-discrimination provisions of the Act. Three commissioners, which is to saya majority, affirmed that the order was validly issued. Commissioners Althenand Young dissented, but they made no mention to the preponderance of theevidence, although they believed that the Secretary “utterly failed to carryhis burden of proof of showing a reasonable basis for the document demand.” *Id*.at 1338. In making no mention of the burden of proof, even when they were referencingtemporary reinstatements, the dissenters, Commissioners Althen and Young,described for that process that “MSHA’s preliminary investigation “mustdetermine *only* whether there *may* be validity to the miner’sclaim, or in other words, that the claim was ‘not frivolously brought.” *Id*.at 1344, n.9. (emphasis in original).

****Fromthe foregoing, it can be seen that invoking “preponderance of the evidence” inthe context of an application for temporary reinstatement has no place in the determinationof whether a claim is not frivolously brought. Even the Commission itself,through the vehicle of a majority opinion, has acknowledged this to be thecase. *Sec’y of Labor on behalf of Williamson v. Cam Mining*, 31 FMSHRC1085 (Oct. 2009), *supra.*This makes sense as a general matter as well,since establishing a fact by a preponderance of the evidence means to provethat the fact is more likely true than not true. *Fischl v Armitage,*128F.3d 50, 55 (2d Cir. 1997). That burden is decidedly *not*required in atemporary reinstatement proceeding. In fact, it is inappropriate to engage insuch determinations. Mixing the concepts of “not frivolously brought” with“preponderance of the evidence” is inappropriate, as they are mutuallyexclusive concepts in the context of temporary reinstatement applications and doingso introduces a layer of consideration which can only invite conflict.[10]

**Summary of the Court’s Conclusions and FindingsRegarding Complainant William R. Whitmore’s Application for TemporaryReinstatement**

The Court findsthat the credible evidence adduced during the temporary reinstatement hearingestablished, writ large, that William Whitmore’s application for temporaryreinstatement was not frivolously brought. ****[11]**** Mr. Whitmore’s testimony was not demonstrably false, nor patentlyincredible, nor obviously erroneous. The Court finds that the testimonymustered by Whitmore presented evidence sufficient to support a conclusion thathe engaged in protected activity, that he suffered an adverse employmentaction, and that the adverse action was motivated at least in part by thatactivity and in light of that, established that his complaint was not frivolouslybrought.[12]

             The Application for TemporaryReinstatement is hereby **GRANTED**. Immediately upon receipt of thisdecision Respondent is **ORDERED** to reinstate Complainant William R.Whitmore to his former position at the mine, or to a comparable position withinthe same commuting area at the same rate of pay and benefits he received priorto his discharge, pending a final Commission order on the discriminationcomplaint. The court retains jurisdiction over this temporary reinstatementproceeding. 29 C.F.R. § 2700.45(e)(4). 

Per 30 U.S. Code § 815,titled, “Procedure for enforcement,” and in particular, subsection (c)(3) ofthe section, the Secretary is directed to comply with that provision whichcommands that “[**w]ithin 90 days** of the receipt of a complaint filedunder paragraph (2)[of subsection (c)], **the Secretary shall notify**, inwriting, the miner, applicant for employment, or representative of miners ofhis determination whether a violation has occurred.” (emphasis added). TheSecretary shall diligently pursue completion of the investigation in theunderlying discrimination complaint. Immediately upon completion of theinvestigation, the Secretary SHALL notify counsel for Yager Materials Corp. andthis court, in writing, whether a violation of Section 105(c) of the Mine Acthas occurred. The Court considers the Secretary’s duty to comply with thisprovision to be of high importance. The mine operator’s rights in defendingagainst the discrimination claim are significantly affected by delays inmeeting this statutory deadline. 

 

**SO ORDERED.**

** **

** **

** **

 

/s/William B. Moran

William B. Moran

                                                            AdministrativeLaw Judge

 

 

Distribution:

 

ThomasJ. Motzny, Esq., Office of the Solicitor, U. S. Department of Labor, U. S.Department of

Labor,618 Church Street, Suite 230, Nashville, TN 37219  motzny.thomas.j@dol.gov

 

TonyOppegard, Esq., P.O. Box 22446, Lexington, KY 40522  tonyoppegard@gmail.com

 

WesAddington, Esq., Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg,KY 41858  wes@aclc.org

 

ArthurM. Wolfson, Esq., Fisher & Phillips, LLP, Six PPG Place, Suite 830,Pittsburg, PA 15222

awolfson@fisherphillips.com

----

[1] This section ofthe Court’s decision and order represents a more detailed summary of thehearing testimony and is derived from what the Court determined to be thesalient evidence for the limited nature of the issue to be resolved in thishearing. It is not intended as a substitute for the entirety of the transcript.The parties were all provided with a copy of the transcript on the morning ofJuly 30, 2020, the day following the hearing.

 

[2] According toWhitmore, “Yager Materials never had a maintenance manager for that site since1954, approximately, whenever they started mining there.” Tr. 64. Once Carmeuseacquired Yager, they determined it “necessary to have a maintenance manageron-site,” and he was the first maintenance manager hired for that mine. Tr.64-65. It was Whitmore’s understanding that Bryan Ory, the site’s generalmanager, had worked at Yager for some 32 years. Tr. 65.

 

[3] YagerMaterials, at both its surface and underground facility, produces limestone. Tr.78. The operation is located in Battletown, Kentucky. Tr. 20. 

[4] In latertestimony, as discussed *infra*, Yager employees arrived at a differentconclusion, determining that, in their view, Whitmore *had* raised thetopic with Mike. 

[5] Similarly, theCourt finds that the Respondent made no advances to establish frivolousness,when Whitmore was asked about his anonymous complaint regarding inadequatetraining and insufficient documentation of such training. Tr. 89-90.

[6] AlthoughCounsel for the Respondent, in response to an objection, that his question toMs. Wellman was for the limited purpose of showing that those who decided tofire Whitmore had no knowledge of his protected activity and were only makingthe decision because the Whitmore’s alleged remarks to Mike, the Courtsustained the objection.  The Court explained its ruling further noting that “it'senough if I have, if I accept the veracity of the complainant's testimony andthen we have a close in time termination, which is what we have here. I do havesome evidence that he communicated some of these safety concerns via email andvia his testimony about the spreadsheet. So, ... beyond that, that's all I have tohave in meeting the very low bar for whether this complaint is frivolous[ ] ornot.” Tr. 110-111.

[7] In *Shaffer,*Commissioner Mary Lu Jordan and now former Commissioner Robert F. Cohen Jr.hewed to the traditional and longstanding analysis applied to temporaryreinstatement application proceeding, expressing:

 

“Under section 105(c)(2) of the Mine Act,“if the Secretary finds that [a discrimination] complaint was not frivolouslybrought, the Commission, on an expedited basis upon application of theSecretary, shall order the immediate reinstatement of the miner pending finalorder on the complaint.” 30 U.S.C. § 815(c)(2). The Commission has recognizedthat the “scope of a temporary reinstatement hearing is narrow, being limitedto a determination by the [J] udge as to whether a miner’s discriminationcomplaint is frivolously brought.” *See Sec’y of Labor on behalf of Price v.Jim Walter Res., Inc.*, 9 FMSHRC 1305, 1306 (Aug. 1987), *aff’d*, 920F.2d 738 (11th Cir. 1990). The “not frivolously brought” standard reflects aCongressional intent that “employers should bear a proportionately greaterburden of the risk of an erroneous decision in a temporary reinstatementproceeding.” *Jim Walter Res., Inc. v. FMSHRC*, 920 F.2d 738, 748 (11thCir. 1990).

 

Courts and the Commission have likenedthe “not frivolously brought” standard set forth in section 105(c)(2) with the“reasonable cause to believe” standard applied in other statutes. *Jim WalterRes., Inc. v. FMSHRC*, 920 F.2d 738, 747 (11th Cir. 1990) (“there isvirtually no rational basis for distinguishing between the stringency of thisstandard and the ‘reasonable cause to believe’standard”); *Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC*,34 FMSHRC 1875, 1877 (Aug. 2012) (other citations omitted). The Commission hasnoted that in the context of a petition for interim injunctive relief under theNational Labor Relations Act (“NLRA”), 29 U.S.C. § 160(j), courts haverecognized that establishing “reasonable cause to believe” that a violation ofthe statute has occurred is a “relatively insubstantial” burden. *Argus Energy*,34 FMSHRC at 1878 (citing *Schaub v. W. MI Plumbing & Heating, Inc.*,250 F.3d 962, 969 (6th Cir. 2001). The Commission stated that in *Schaub*,“the Court explained that the proponent ‘need not prove a violation of the NLRAnor even convince the district court of the validity of the Board’s theory ofliability; instead he need only show that the Board’s legal theory issubstantial and not frivolous.”’ *Id.* (citations omitted). It noted thatthe Court cautioned:

Animportant point to remember in reviewing a district court’s determination ofreasonable cause is that the district judge need not resolve conflictingevidence between the parties. *See Fleischut [v. Nixon Detroit Diesel, Inc.*,859 F.2d 26, 29 (6th Cir. 1988)] (stating that the appellant’s appeal did notseriously challenge whether reasonable cause exists; instead it simply showedthat a conflict in the evidence exists); *Gottfried [v. Frankel*, 818 F.2d485, 494 (6th Cir. 1987)] (same). Rather, so long as facts exist which couldsupport the Board’s theory of liability, the district court’s findings cannotbe clearly erroneous. *Fleischut*,859 F.2d at 29;*Gottfried*, 818 F.2d at 494.

*Id.* (citations omitted).

Similarly, at a temporaryreinstatement hearing, the Judge must determine “whether the evidence musteredby theminer[] to date established that [his or her] complaint[] [is]nonfrivolous, not whether there is sufficient evidence of discrimination tojustify permanent reinstatement.” *JWR*, 920 F.2d 744. As the Commissionhas recognized, “[i]t [is] not the [J]udge’s duty, nor is it the Commission’s,to resolve the conflict in testimony at this preliminary stage of proceedings.”*Sec’y of Labor on behalf of Albu v. Chicopee Coal Co.*, 21 FMSHRC 717,719 (July 1999). The Commission applies the substantial evidence standard inreviewing the Judge’s determination.*Sec’yof Labor on behalf of Bussanich v. Centralia Mining Co.*, 22 FMSHRC 153, 157(Feb. 2000).

 

Whilean applicant for temporary reinstatement need not prove a prima facie case ofdiscrimination, it is useful to review the elements of a discrimination claimin order to assess whether the evidence at this stage of the proceedings meetsthe non-frivolous test. *CAM Mining, LLC*, 31 FMSHRC 1085, 1088 (Oct. 2009).In order to establish a prima facie case of discrimination under section 105(c)of the Mine Act, a complaining miner bears the burden of establishing (1) that he engaged in protectedactivity and (2) that the adverse action complained of was motivated in anypart by that activity. *Sec’y of Labor on behalf of Pasula v. ConsolidationCoal Co.*, 2 FMSHRC 2786, 2799 (Oct. 1980), *rev’d on other grounds*, 663 F.2d 1211(3d Cir. 1981); *Sec’y of Labor on behalf of Robinette v. United Castle CoalCo.*, 3 FMSHRC 803 (Apr. 1981). The Commission has identified the followingindicia of discriminatory intent to establish a nexusbetween the protected activity and the alleged discrimination: (1) knowledge ofprotected activity; (2) hostility or animus toward the protected activity; (3)coincidence in time between the protected activity and the adverse action; and(4) disparate treatment of the complainant. *CAM Mining*, 31 FMSHRC at1089 (other citations omitted).” *Shaffer*at 41-43.

 

[8] By analogy,this is in keeping with the somewhat related concept that where twoCommissioners vote to grant a motion and two to deny, the original decisionstands. *See, e.g., Sec'y of Labor on behalf of McGary v. Marshall CountyCoal Co.,*40FMSHRC 767, 768

(June28, 2018) (Commissioners Jordan and Cohen, in favor of denying the stay andthen Acting Chairman Althen and Commissioner Young, in favor of granting thestay).

 

[9] A few of thecases found by the Court have been relegated to this footnote as follows. In the temporaryreinstatementproceeding in *North Fork Coal Corp.,*33 FMSHRC 27 (Jan. 2011),   *amajority*of the Commission held that the miner’s reinstatement was notdissolved following the Secretary of Labor’s decision to not pursue the fulldiscrimination proceeding. The miner, however, as permitted under the statutoryscheme, then filed his own action under section 105(c)(3).  Commissioners Youngand former Commissioner Duffy dissented on that outcome, but as it pertains tothis review, “preponderance of the evidence” only arose in the context of thosedissenting commissioners referring to the Secretary’s burden of proof in the*full* discrimination proceeding. *Id.*at 55. In *LehighCement Co.*,**2020 WL 4366183 (July 2020), a unanimous Commissionconcluded that the judge erred in tolling a miner’s economic reinstatement. Hereagain, although the phrase “preponderance of the evidence” was invoked, it wasto point out that “[*o*]*perators*bear the burden of showingby a preponderance of the evidence that tolling is justified.” Citing, *Sec’yof Labor on behalf of Ratliff v. Cobra Natural Res., LLC**,*35 FMSHRC394, 397 (Feb. 2013). *Id.* at *3 (emphasis added). Note, in a related *LehighCement Co.*case, 2020 WL 4366184 (July 2020), distinctive only in that adifferent docket number was involved, the same result was reached. In *Robinettev. United Castle Coal*, 3 FMSHRC 803, (April 1981),the Commission remanded to address an aspect of the discrimination issue. Forthe purposes of this review, the phrase “burden of proof” only arose in afootnote analogy concerning unfair labor practices in NLRB matters and thereforeis of no consequence to this review. *Id. at*818, n. 20. Last, in *Contractors Sandand Gravel,*20FMSHRC 960, (Sept. 1998), that case too is only tangential to this reviewbecause its thrust concerned the recovery of attorney’s fees and expenses underthe Equal Access to Justice Act. In speaking to that issue, the Commissionfound that the Secretary’s position had a reasonable basis in fact and rejectedthe contention that the Secretary had to establish its position under thepreponderance of evidence standard. *Id*. at 973.

 

 

 

[10] Although theCourt’s exposition of the Commission’s case law regarding temporary reinstatementis dispositive, it is noted that in other non-mine safety and health matters,courts have eschewed comingling the concepts of preponderance of evidence andfrivolousness. For example, in National Labor Relations matters pertaining totemporary injunctive relief, the 5th Circuit observe that it was nottheir duty at that “juncture to pass upon whether violations have beenestablished by a preponderance of the evidence, but merely to decide that theBoard’s theories are substantial and not frivolous.” *Boire v. Pilot FreightCarriers, Inc*., 515 F.2d 1185, 1191 (5th Cir. 1975).

 

[11] The Courtreceived a “Post-Hearing Statement” from the Respondent. (“R’s Statement”).  Theparties representing the Complainant were given an opportunity to respond anddeclined to do so. The Court finds that the Complainant’s representatives’decision to not respond is understandable, given the record testimony. Further,the body of this decision ordering Mr. Whitmore’s immediate reinstatementeffectively addresses the contentions raised by the Respondent. However, theCourt makes the following additional comments about the R’s Statement. Respondentraises two challenges in an attempt to show that the application is frivolous. First,Respondent contends that Complainant’s April 6, 2020 email expressing hisconcern about a contractor employee and whether that individual was practicingsocial distancing in light of COVID 19 did not constitute protected activity. R’sStatement at 5. The Court does not agree. The Court refers the reader to thetranscript summary above. By raising his concern, the Complainant was voicing ahealth concern, which constitutes protected activity. The Respondent thenstates that such a concern may be analogized to a protected work refusal. *Id.*From that argument, the Respondent seems to argue that a miner’s expressedhealth concern, when not specifically covered by a standard, evaporates oncethe miner has been given reassurance about the concern. The analogy does nothold up; Whitmore did not make a work refusal in connection with his expressedhealth concern. Further, expressing his concern was protected activity and itsstatus as such remained so, even if the employer addressed it. 

 

Respondent’ssecond contention is that without showing that the Respondent’sdecision-makers, meaning the two individuals who decided to fire theComplainant, knew of, that is to say “had knowledge of” Whitmore’s severalinstances of protected activity, the complaint is frivolous. Respondent assertsthat the only evidence of record is that the two individuals who decided tofire Whitmore testified that they knew nothing of his protected activities andterminated him solely on another basis, as described above in the body of thisdecision. As such, Respondent asserts that, their decision being pure of anyprotected activity knowledge, makes Whitmore’s complaint frivolous. *Id.*7-9.As the discussion of the applicable case law, set forth above, makes clear, thetemporary reinstatement application proceeding may not be based on such claims,as it would transform the proceeding into resolving conflicts in testimony. Sucha conflict is plainly present. A conflict can exist in less direct forms than acontention and a denial. Thus, the mere assertion by two witnesses maintainingcertain factual contentions, even if not *specifically* denied, can stillpresent a conflict, when viewed from the perspective of the entire record. Inshort, a conflict can exist in more subtle forms than an assertion and aparallel denial. At this stage, made for the purpose of determining onlynon-frivolity, it is not required for the Complainant to establish that the twoindividuals made their decision on grounds beyond their claimed basis. Instead,again as plainly described above, the Complainant established *multiple*instancesof protected activity, each of which the Court found to be have beencommunicated, that he suffered the adverse action of termination, and that suchtermination occurred within a short period of time following expression of hissafety and health concerns. “Requiring the Judge to resolve allegedinaccuracies and conflicts in testimony when the parties have not yet completeddiscovery would improperly transform the temporary reinstatement hearing into ahearing on the merits.” *Sec. obo Deck v FTS Int’l*, 34 FMSHRC 2388, 2391(Sept. 2012), citing *Chicopee Coal*, 21 FMSHRC at 719; *CAM Mining*,31 FMSHRC at 1088-89.

 

[12] It is worthrestating that in the context of an application for temporary reinstatement thetest is *not* whether there is sufficient evidence of discrimination tojustify permanent reinstatement.