**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

**721 19th St., Suite 443**

**Denver, CO 80202-2500**

**Office: (303)844-5266/Fax: (303) 844-5268**

 

 

SECRETARYOF LABOR,                                 :            DISCRIMINATION PROCEEDING

 MINESAFETY AND HEALTH                        :      

 ADMINISTRATION(MSHA),                          :     

 on behalfof ALVARO SALDIVAR,                  :     Docket No. WEST 2021-0265-DM

                                    Complainant,                    :     MSHACase No. WE MD 21-06

                                                                              :

                        v.                                                   :

                                                                              :

GRIMESROCK INC,                                          :     Mine: Grimes Rock Inc

                                    Respondent.                      :     MineID: 04-05432

** **

** **

**DECISION AND ORDER**

****

 

Appearances: Karla Malagon and Jessica Flores, Office of the Solicitor,

U.S. Department of Labor, LosAngeles, California, for the Complainant 

 

MarkPachowicz, Pachowicz & Goldenring PLC, Ventura, California, for the Respondent 

 

Before:  JudgeMiller

 

This case is before meupon a complaint of discrimination filed by the Secretary of Labor(“Secretary”) on behalf of Alvaro Saldivar against Grimes Rock Inc. (“Respondent”)under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30U.S.C. § 801 et seq. (“Mine Act” or “Act”). Mr. Saldivar alleges that he was terminatedfor making safety complaints that are protected under the Mine Act. Both partiespresented witnesses and evidence at the hearing that took place from January25-27, 2022 and subsequently briefed the Court on issues of fact and law. Forthe reasons outlined below, I find that the Secretary has failed to prove aviolation of section 105(c) of the Mine Act.

 

**I.     ****FINDINGS OF FACT**

 

Thefindings of fact detailed below are based on the record as a whole and mycareful observation of the witnesses during their testimony. My credibilitydeterminations are based in part on my close observation of the witnesses’demeanors and vocal intonations. In resolving any conflicts in testimony, Ihave taken into consideration the interests of the witnesses, corroboration orthe lack thereof, and consistencies and inconsistencies in each witness'stestimony and among the testimonies of the various witnesses. Any failure toprovide detail on each witness’s testimony should not be deemed a failure tohave fully considered it. The fact that some evidence is not discussed does notindicate that it was not considered. *See Craig v. Apfel*, 212 F.3d 433,436 (8th Cir. 2000).

 

Grimes Rock operates asmall sand and gravel mine located in Fillmore, California. This surface mine fallsunder the jurisdiction of the Mine Act, and its miners are covered by the Act’sprotections. *See* Jt. Stip. ¶ 1; 30 U.S.C. § 803. Alvaro Saldivar workedat Grimes Rock during two separate periods of employment. Grimes Rock firstemployed Saldivar as a welder in 2019. Jt. Stip. ¶ 7. Then, Grimes Rockre-hired Saldivar on October 5, 2020, and he continued working at the mineuntil he was terminated on January 15, 2021. Jt. Stip. ¶ 6. Saldivar’s secondstint of employment at Grimes Rock is the focus of the present discriminationproceeding. 

 

Grimes Rock is owned byRussell Cochran and is managed by Ernesto Melendez, who oversees all operationsat the mine. Melendez made the decision to rehire Saldivar in October 2020,motivated in part by Saldivar’s high quality of work during his first term ofemployment. Tr. 389. Melendez testified that while there was no welder positionavailable, he recognized the need for consistent servicing of the mine’s mobileequipment, and he hired Saldivar to fill the role of “lube guy.” Tr. 387. 

 

The parties disputecertain details about Saldivar’s precise title and role at Grimes Rock duringthe second period of his employment—Saldivar claims he was rehired as a “lubeservice technician and as an equipment operator” rather than a “lube guy”—but bothsides largely agree as to what his duties were. Tr. 34. Grimes Rock rehired Saldivarto operate a lube truck that would carry oil and other automotive fluids aroundthe mine and service its mobile equipment. However, at the time of Saldivar’srehiring, the lube truck had not yet been acquired, and so Saldivar was askedto help with other jobs around the mine. Tr. 36, 388. He was tasked withoperating a water truck to assist with dust control, as well as operating amotor grader to help flatten and grade the roads at the mine. Tr. 36, 388. Managementalso asked Saldivar to service mobile equipment in the absence of the lubetruck. Both sides agree that plant manager Rene Garcia and plant supervisorAureliano Ruiz oversaw Saldivar’s work, in addition to Melendez. Jt. Stip. ¶¶ 15,16.

 

**A.   ****Saldivar’s training at Grimes Rock**

 

Saldivar’s trainingupon returning to Grimes Rock began with a text message. On October 5, 2020,Ernesto Melendez texted Saldivar a link to an MSHA training video. *See*Sec’y Ex. 19. Melendez testified that he sent a link to the virtual traininginstead of conducting an in-person training because Grimes Rock offices wereclosed due to the COVID-19 pandemic. Tr. 391. On October 6, Saldivar signed anddated a certificate of training indicating that he completed the videotraining. Resp. Ex. E. Saldivar signed a similar form confirming additionaltraining the next day.  Both forms indicate that the type of training receivedwas “New Miner” training. Resp. Ex. E. 

 

Saldivar beganoperating the Peterbilt water truck and motor grader within the first few weeksof returning to Grimes Rock. He testified that he was asked to operate thesepieces of equipment before he was trained on them. Tr. 36-38. Saldivar said athearing that he operated the equipment for one month without training, and thathe requested training for this equipment in his preoperational inspectionforms. Tr. 96, 100. Eventually, Grimes Rock enlisted electrician Vic Lester totrain Saldivar on the water truck and motor grader. Saldivar characterized thetraining on the water truck as a “360 walk around” and described the trainingon the motor grader as “improper.” Tr. 98, 100. Vic Lester testified that watertruck training involved the two men entering the cab, reviewing the controls,and then allowing Saldivar to operate the truck while Lester sat in thepassenger seat. Tr. 610. Saldivar disputed this. Tr. 168. Lester also testifiedthat he trained Saldivar on the motor grader by showing him the equipment,getting in the cab together, instructing him on how to operate the handles andlevers to control the blade, and reviewing what to watch for while operatingthe grader. Tr. 613. Lester’s testimony was corroborated by Melendez andGarcia, who testified that they witnessed Lester and Saldivar operating theequipment together. Tr. 396, 401, 465. Ruiz testified that Saldivar told himthat he had been trained by Lester. Tr. 511. No information regarding thetiming of the training is contained in the record. 

 

Within the first fewweeks of returning to Grimes Rock, Saldivar was also asked to begin servicingmobile equipment at the mine. This task included replenishing the fuel,checking the fluids, greasing the pinpoints, and performing other routineservice on equipment such as the excavators, bulldozers, front loaders, and abackhoe at the mine. Tr. 38-39. Saldivar claimed that Grimes Rock only providedinstruction on servicing the mobile equipment *after* he complained aboutthe lack of training on his preoperational inspection forms. Tr. 96. Jordan VanWie from Quinn Company led a training session that Saldivar described as a “360walk around” of the equipment and a basic demonstration on how to “check fluids.”Tr. 96, 101. Van Wie, a certified instructor of equipment maintenance,testified that he spent two or three hours showing miners the basic servicetechniques on four different pieces of equipment. Van Wie did not say if thetraining was before or after Saldivar made a complaint. Tr. 676, 679-80.

 

On occasion, Saldivarwould have to move mobile equipment to the location where the grease and fluidswere kept in order to service the equipment. According to Saldivar, he wasdirectly ordered to move the equipment in this manner. Tr. 40. Saldivar testifiedthat he was not trained on how to operate the heavy equipment, such as thebackhoe. Tr. 40. He claimed that he directly requested training on the backhoefrom Melendez and Garcia, but that the only training he received was a “360walk around” of the equipment. Tr. 95-96. Melendez testified that neither henor anyone else at the mine trained Saldivar regarding operation of the backhoebecause Saldivar “was not an operator, there was no need for him to be on abackhoe.” Tr. 405. According to Melendez, Grimes Rock equipment operatorsparked the mobile equipment on flat surfaces and “[t]here is no need to moveany of the equipment” to service it, beyond maybe moving it “four feet.” Tr.434-35. 

 

 

 

 

**B.   ****Saldivar’s first disciplinaryaction**

** **

Three weeks after resumingwork at Grimes Rock, Saldivar received his first disciplinary writeup. OnOctober 27, Rene Garcia issued Saldivar a disciplinary form because the “watertruck again for the third time was found with no coolant and very low on engineoil.” Sec’y Ex. 2. Saldivar testified that, on that date, he had likely not yetreceived the Quinn Company training on equipment maintenance, and that thetraining he did receive lacked adequate instruction on how to service the watertruck. Tr. 106.

**C.   ****The water truck tires, incident,and disciplinary action**

 

Saldivar noticed issueswith the tires of the Peterbilt water truck early in his second stretch ofemployment at Grimes Rock. He testified that some tires were “bald,” “cracked,”and had “wires exposed.” Tr. 43. Saldivar claimed that he verbally reportedthese issues to Melendez and Garcia and that he also informed management of theissues on his preoperational inspection sheets. Tr. 43-45. Melendez deniedbeing told about balding tires. Tr. 412. Melendez testified that when a minerreports worn tires on a preoperational inspection form, Melendez will inspectthe tires and make a “business decision” about whether they need to bereplaced. Tr. 429.

 

On the evening ofDecember 10, 2020, Saldivar was involved in an incident while driving thePeterbilt water truck. Saldivar operated the water truck that evening fordust-control purposes. He sprayed the roadside as he traveled downhill on themain mine road connecting the plant on top of the hill and the scales below. Saldivarturned the truck around at the bottom of the hill and returned uphill towardthe plant. Saldivar testified that, as he drove up the steep grade, the truck’stires lost traction and the truck started sliding back downhill. Tr. 49. Saldivarsensed that he had lost control of the vehicle, and he tried to steer the truckinto a nearby row of cinderblocks to stop the truck’s slide. He succeeded, andthe truck collided with the cinderblocks. The collision caused damage to a tireand a rim on the water truck. *See* Sec’y Ex. 6. Saldivar immediatelyradioed the night manager of the plant, Aureliano Ruiz, and informed him of theincident. Tr. 54-55. Ruiz told Saldivar to try to drive the truck up the hillin first gear and park it at the plant so that Ruiz could inspect the damage. Tr.54-55, 247. Saldivar was able to get the truck to the plant safely in firstgear. Tr. 247. 

 

The next morning,Saldivar informed Melendez about the incident via text message. *See*Sec’y Ex. 5. He detailed how he lost control of the truck and damaged a rim anda tire. Melendez responded by saying, “You need to be careful we will write youup on it.” Sec’y Ex. 5. When Saldivar arrived at work the next morning, ReneGarcia issued him a discipline form for damaging company property. *See*Sec’y Ex. 3. Melendez testified that he “investigated” the water truck incidentbefore authorizing the discipline form, but he and Saldivar agreed in theirtestimony that Melendez did not contact or interview Saldivar before the disciplinewas issued, apart from the single text message. Tr. 71, 358-59. Later that day,Melendez hired Pinky’s Tire Service to replace the tire and rim on the watertruck. Both Melendez and the tire technician testified that no tires had beenreplaced between October and December 10, that only a single tire was replacedon December 11, and that the remaining tires were in passable condition. Tr.425-26, 597.

 

 

 

**D.   ****Subsequent disciplinary actions**

 

After receiving thewriteup about the water truck incident on December 11, Saldivar received histhird disciplinary action the very next day. On December 12, Aureliano Ruizissued Saldivar a writeup for arriving to work four hours late. *See*Sec’y Ex. 7. Ruiz issued this form on Rene Garcia’s behalf, after Garcia toldRuiz that Saldivar failed to show up on time. Tr. 502. Ruiz testified thatSaldivar gave no excuse for his tardiness except that “he ran late, that’s it.”Tr. 505. To Saldivar, the timing of this discipline form was suspicious becausehe had been tardy in the past without receiving any admonishment. Tr. 79. Saldivaradmitted that he was late to work about once a week but claimed that he had obtainedpermission for these instances. Tr. 176-77. He also testified that he was latewithout permission “[m]aybe a couple of times.” Tr. 178. Melendez testifiedthat Saldivar’s attendance record “wasn’t good.” Tr. 429. Oscar Nava, a formercoworker of Saldivar at Grimes Rock, said that “everybody is late to work” atthe mine. Tr. 316. 

 

On January 13, 2021,Saldivar noticed that the transmission fill tube on a dozer was missing itscap, and he reported the missing cap to Garcia and Melendez. Tr. 83; Sec’y Ex.8. Saldivar was ultimately written up for the missing cap. Sec’y Ex. 8. Accordingto Saldivar, he received the writeup in retaliation for reporting the unsafecondition. Tr. 84-85. Yet Rene Garcia, who issued the writeup, said both athearing and on the disciplinary form that Saldivar admitted to having left the filltube uncapped after being confronted by the dozer operator. Tr. 472; Sec’y Ex.8. The dozer operator confirmed this at hearing. Tr. 659. Saldivar deniedhaving made any such admission. Tr. 84.

 

Saldivar’s fifth andfinal writeup came the next day. Saldivar testified that he was assigned tograde the roads on January 14, and he was using the backhoe to collect thematerial needed as “base” in order to perform the grading. Tr. 86. When he wasoperating the backhoe, one of the tires was flat and appeared to separate fromthe rim. Tr. 85; Sec’y Ex. 10. Garcia issued Saldivar a writeup for the damageincurred to company property when Saldivar was “not paying attention” and“drove the tire off the wheel” of the backhoe. Sec’y Ex. 9. Garcia testifiedthat he issued the disciplinary form because Saldivar was not supposed to beoperating the backhoe and could not account for the damage to the tire. Tr.469.

 

 

 

**E.   ****Saldivar’stermination**

 

On January 15, 2021,Melendez radioed Saldivar to meet him at the scale house, where he informedSaldivar that he was fired. Tr. 173. Melendez gave Saldivar his final check andhad him sign a termination letter. The letter indicated that Saldivar’semployment was terminated due to “damaged company property and performanceissues.” Sec’y Ex. 15. Melendez testified at hearing that the factors heconsidered in terminating Saldivar included “his attitude, attendance, damagingthe company property, not [being] willing to listen to anybody, [and] thinkinghe can do what he pleases at the mine.” Tr. 432-33. Several employees of GrimesRock testified that Saldivar’s attitude was an issue at the mine. Tr. 407-19, 660-61,669.

 

 

 

**II.  ****ANALYSIS**

 

Section 105(c)(1) of the Mine Actprohibits a mine operator from discharging a miner, discriminating against him,or interfering with the exercise of his statutory rights “because . . . he hasfiled or made a complaint under or related to this chapter, including acomplaint notifying the operator . . . of an alleged danger or safety or healthviolation” or “because of the exercise of such miner . . . of any statutoryright afforded by this Act.” 30 U.S.C. § 815(c)(1).  Congress intended for theprotections of section 105(c) “to be construed expansively to ensure that minerswill not be inhibited in any way in exercising any rights afforded” by the MineAct. S. Rep. 95-181, at 36, *reprinted in*Senate Subcomm. on Labor, Comm. on Human Res., Legis. History of the FederalMine Safety and Health Act of 1977, at 624 (1978). 

 

**A.   ****Thestandard for discrimination**

 

For decades, the Commission and itscourts adjudicated claims of discrimination brought under section 105(c) of theMine Act using the *Pasula-Robinette* framework. *Sec’y on behalf ofRobinette v. United Castle Coal Co.*, 3 FMSHRC 803, 817-18 (Apr. 1981); *Sec’yon behalf of Pasula v. Consolidation Coal Co.*, 2 FMSHRC 2786, 2799-2800(Oct. 1980). This framework was recently abrogated by the United States Courtof Appeals for the Ninth Circuit. Specifically, the Ninth Circuit found flaw inthe causation aspect of the *Pasula-Robinette* standard. Now,discrimination claimants within the Ninth Circuit must prove that unlawfuldiscrimination was a “but-for” cause of the alleged adverse action. *Thomasv. CalPortland Co.*, 993 F.3d 1204, 1210 (9th Cir. 2021). The Ninth Circuitdid not announce how this new standard would interact with the rest of theCommission’s precedent regarding discrimination claims, and the Commissionitself has not yet had the opportunity to opine on this matter. This Court mustapply a test of discrimination that embeds a but-for causation standard andthat also hews to the Commission’s robust body of discrimination case law. Accordingly,this Court will adopt the test for discrimination as applied in the matter offirst impression that appeared before the courts of the Commission. *See**Thomasv. CalPortland Co*., 43 FMSHRC 531, 538-40 (Dec. 2021) (ALJ).[1]

 

The test for discrimination undersection 105(c) of the Mine Act is therefore whether the complainant has proven,by a preponderance of the evidence, an adverse action that would not have beentaken but for his engagement in protected activity. 

 

In the absence of direct evidenceof discrimination, a complainant may assert a prima facie case ofdiscrimination under the Mine Act by showing that he engaged in protectedactivity and that the adverse action complained of was motivated in any part bythat activity. This lower standard is not the ultimate standard ofdiscrimination, but rather an evidentiary device that allows a miner tostate a claim of discrimination using indirect evidence of discrimination, suchas the operator’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. *Sec’y ofLabor on behalf of Johnny Chacon v. Phelps Dodge Corp.*, 3 FMSHRC 2508, 2510(Nov. 1981). If the miner successfully states his prima facie case, he hasestablished a rebuttable presumption of discrimination under the Mine Act.

 

The mine operator then has anopportunity to rebut the miner’s prima facie case by producing evidence showingthat no protected activity occurred or that the adverse action was notmotivated by the protected activity. This is merely a burden of production, notof persuasion. An operator’s failure to produce any legitimate evidence inrebuttal to the prima facie case would result in a judgment in favor of thecomplainant. However, when an operator produces such evidence, the presumptionof discrimination is nullified, and the judge must weigh the conflictingevidence according to the substantive “but-for” standard. During this final phase,the complainant must have an opportunity to show that the operator’sexplanation in rebuttal is pretextual. Throughout this entire process, theburden of persuasion never shifts to the mine operator.

 

**B.   ****Saldivar’sclaim of discrimination**

 

Under this newly articulated test,Alvaro Saldivar must prove that he suffered an adverse action and that theadverse action would not have been taken but for his protected activity. As aninitial offering, Saldivar must first establish a prima facie case of discrimination.

 

*1.    **Saldivar’s prima facie case*

 

A prima facie case ofdiscrimination requires a showing (i) that the complainant engaged in protectedactivity, (ii) that he suffered an adverse action, and (iii) that there is amotivational nexus between the protected activity and the adverse action. *See**Driessen v. Nevada Goldfields, Inc.*, 20 FMSHRC 324, 328 (Apr. 1998); *Pasula*,2 FMSHRC at 2799. The burden on the complainant is not onerous. He must onlyproduce “evidence sufficient to support a conclusion” that he was discriminatedagainst. *Driessen*, 20 FMSHRC at 328. A miner has proven his prima faciecase when he has “present[ed] evidence from which the trier of fact could infer**retaliation.” *Turner v. National Cement Company of California*, 33FMSHRC 1059, 1065 (May 2011). 

 

i.              Protectedactivity 

 

Alvaro Saldivar engaged in at leasttwo instances of protected activity. First, Saldivar engaged inprotected activity when he lodged safety complaints about the condition of thetires on the water truck. Saldivar testified that he had issues with the watertruck’s tires from the moment he was rehired. In his opinion, the tires were“bald” and “cracked” with “wires exposed.” Tr. 41-45. He testified that healerted management of the poor tire condition both verbally and on his preoperationalinspection sheets. I find Saldivar’s testimony on this issue to be credible. Melendezdenied that Saldivar made such complaints, but he did acknowledge his policy ofallowing some wear and tear on the tires as part of his “business decision”regarding whether they need to be replaced. Tr. 429. Also, I find it suspiciousthat the mine failed to produce the preoperational inspection sheets when askedby the Secretary. Since they were not produced as requested, I credit the testimonyof Saldivar that he did list his complaints on those sheets. Safety complaintslike the ones made by Saldivar are quintessential protected activities under section105(c)(1) of the Mine Act, which expressly protects a miner who makes a “complaintnotifying the operator . . . of an alleged danger or safety or health violation.”30 U.S.C. § 815(c)(1). 

 

Second, Saldivar’scomplaints to management about inadequate task training also constituteprotected activity under the Mine Act. Saldivar believed that he neededadditional training on several pieces of equipment, and he testified that hemade both verbal and written reports of poor training to Grimes Rockmanagement. Again, I find Saldivar’s testimony on this point to be credible. Whilemine management generally denied that Saldivar made such reports, Melendez didadmit at hearing that Saldivar had told him that he “need[ed] more practice” onthe motor grader. Tr. 400. Proper task training is paramount under the MineAct, *see* 30 U.S.C. § 825(a)(4), and inadequate training constitutes amajor health and safety risk. *Id*. at § 814 (declaring that an untrainedminer is a “hazard to himself and others.”). Making a report of inadequatetraining is therefore equivalent to making a report about unsafe workingconditions, and it is protected activity under section 105(c) of the Act. *Cf.Thomas*, 43 FMSHRC at 542. Accordingly, Saldivar has established hisengagement in at least two protected activities.

 

ii.             Adverseaction

 

The Commissionhas defined “adverse action” to mean “an action of commission or omission bythe operator subjecting the affected miner to discipline or a detriment in hisemployment relationship.” *Sec’y on behalf of Pendley v. Highland Mining Co.*,34 FMSHRC 1919, 1930 (Aug. 2012). Here, the parties agree that Saldivar wasterminated by Grimes Rock on January 15, 2021. Jt. Stip. ¶ 11. There istherefore no dispute that Saldivar suffered an adverse action as defined by theCommission. 

 

iii.           Motivational nexus

 

The next relevant inquiry iswhether a motivational nexus exists between Saldivar’s complaints and hisfiring. Because “[d]rect evidence of motivation is rarely encountered,” theComplainant may initially show this motivational nexus with the fourcircumstantial indicia of discrimination described by the Commission in itscase law: the operator’s knowledge of the protected activity, the operator’shostility, timing, and disparate treatment. *Chacon*, 3 FMSHRC at 2510.  Thecomplainant need not establish all four indicators of discrimination, butrather each factor proven by the miner contributes cumulatively to his case ofdiscriminatory motive.

 

In this case, two factors are mostpersuasive: knowledge and timing. An operator’s knowledge of protected activity“is probably the single most important aspect of a circumstantial case.” *Chacon*,3 FMSHRC at 2510. Management at Grimes Rock knew about Saldivar’s safetycomplaints. Saldivar testified that he repeatedly made complaints about thewater truck tires and about his inadequate training to Melendez and Garcia,both verbally and in writing. Additionally, Melendez acknowledged at hearingthat Saldivar had asked for additional practice on the motor grader before hewould feel comfortable operating it. Tr. 400. 

 

Timing is anotherfactor that weighs in favor of Saldivar. Coincidence in timing between theprotected activity and the alleged adverse action can point towarddiscriminatory motive. The Commission has noted that it “applies no hard andfast criteria in determining coincidence in time” and that “[s]urroundingfactors and circumstances may influence the effect to be given.” *Hicks v.Cobra Mining Inc.*, 13 FMSHRC 523, 531 (Apr. 1991). Saldivar testified thathe began making safety complaints within the first few weeks of returning towork at Grimes Rock on October 5, 2020. Tr. 96. By October 21, Saldivar hadreceived the first in a series of disciplinary actions. Sec’y Ex. 2. Theseactions escalated until Saldivar was terminated on January 15, 2021. Therefore,at most three months elapsed between the first instances of protected activityand the adverse action, and disciplinary actions were progressively beingissued during those three months. Under Commission case law, this temporalproximity can be an indication of discriminatory motive. *See Pero v. CyprusPlateau Mining Corp*., 22 FMSHRC 1361, 1365 (Dec. 2000) (finding that timingweighed in favor of complainant when four months elapsed between protectedactivity and adverse action). 

 

Knowledge and timingare the two strongest factors supporting Saldivar’s claim of discriminatorymotive, and these two factors alone can support a prima facie case. *See Pero*,22 FMSHRC at 1365.  But the Secretary has also offered some evidence regardingthe final two factors, hostility and disparate treatment. Saldivar testified athearing that Melendez and Garcia acted “malicious” toward him “every time [he]would complain about something.”  Tr. 211. He viewed the progressivedisciplinary actions as evidence of management’s mounting hostility for him inresponse to his complaints. Tr. 211. Furthermore, the Secretary argues thatmine owner Russell Cochran displayed animus toward Saldivar when he calledSaldivar’s subsequent employer, Brett Jones. According to MSHA SpecialInvestigator Troy VanWey, Jones told VanWey about how Cochran warned him to “becautious” because “if [Saldivar] was willing to file [a discrimination]complaint against [Cochran], he could also file it against Mr. Jones as well.” Tr.543. Cochran denied ever having such a conversation. Tr. 587. Finally, theSecretary also alleges that Saldivar was treated differently than other miners oncehe lodged his complaints. A fellow miner, Oscar Nava, recounted times when hewas late or when he damaged company property, but he told the Court that he wasnever fired for this conduct.  Tr. 319-21. According to the Secretary, no otherGrimes Rock employee had been terminated for performance issues in the twoyears prior to Saldivar’s firing, except for an accountant. *See*Sec’yBr. at 16 (citing tr. 379). 

 

The Secretary has introducedenough circumstantial evidence to support a conclusion or inference ofretaliation. *See**Turner*, 33 FMSHRC at 1065; *Driessen*, 20FMSHRC at 328. Accordingly, a successful prima facie case of discrimination hasbeen shown. 

 

*2.    **GrimesRock’s rebuttal*

 

Grimes Rock now has anopportunity to rebut Saldivar’s prima facie case by producing evidenceindicating either (i) that no protected activity occurred or (ii) that theadverse action was not motivated by the protected activity. The company hasoffered arguments and evidence addressing both issues. 

 

i.              GrimesRock’s argument that no protected activity occurred 

 

The first argumentadvanced as part of the operator’s rebuttal is that Saldivar never engaged inprotected activity. Grimes Rock contends that Saldivar did not complain aboutthe water truck tires, nor about his inadequate training at the mine. 

 

First, Grimes Rockdenies that Saldivar reported the poor condition of the tires on the Peterbiltwater truck. In its brief, Grimes Rock first points out the absence ofdocumentary evidence (notes, text message, preoperational inspection forms)showing that Saldivar ever made such a report. While Saldivar testified that hehad reported the unsafe tires, mine management directly denied this claim athearing. Tr. 411. Grimes Rock failed to point out at hearing that the Secretaryrepeatedly asked for such documentation, including preoperational reports, andthe mine failed to provide it. Grimes Rock has also introduced pictures andtestimony indicating that at least some of the tires that Saldivar complainedabout were in relatively good condition. *See* Resp. Ex. J; tr. 425-26,597. This evidence does not nullify Saldivar’s prima facie case, because aminer only needs a reasonable, good-faith belief about the existence a safetyissue to support his protected activity. *See**Kelly Diede v. SummitInc.*, 13 FMSHRC 1155, 1162 (July 1991) (ALJ) (“The fact that there may havebeen no objective underlying safety problem would not invalidate a miner's goodfaith reasonable safety complaint.”). 

 

Second, Grimes Rockdenies that Saldivar ever complained about inadequate training. Again, itargues that the Secretary has failed to introduce any evidence of the complaintsbeyond Saldivar’s own testimony. But once again, Grimes Rock failed to producethe documents when asked by the Secretary. Furthermore, Grimes Rock argues thatinconsistencies in Saldivar’s testimony about his level of training diminisheshis credibility on this point. Resp. Br. at 3. Finally, the company questionswhether the underlying safety issue (the lack of training) was legitimate,detailing the variety of training that Saldivar went through while employed atGrimes Rock. The evidence points to the fact that, while Saldivar received newminer training and perhaps other training, he did not receive adequate tasktraining. Grimes Rock produced no evidence of task training records forSaldivar.

 

ii.             GrimesRock’s argument that the adverse action was not motivated by the protectedactivity 

 

Grimes Rock also arguesthat its termination of Saldivar was unrelated to his safety complaints. Instead,the operator asserts that it fired Saldivar due to his poor work performance,poor attendance, poor attitude, and the damage he caused to company property.  

 

First, Grimes Rockclaims that Saldivar’s poor work performance was one reason for his termination.The company points to Saldivar’s disciplinary actions as evidence of his unacceptableperformance. Management issued the first writeup after Saldivar drove the watertruck with low coolant and engine oil, risking damage to company equipment. Thesecond writeup was issued in the wake of the water truck incident. Grimes Rockargues that Saldivar caused the incident by overwatering the road and drivingup the slick road in second gear. *See* Resp. Br. at 15-16. Rene Garcia issuedtwo additional writeups: one for leaving the transmission fill tube of thedozer uncapped, and one for not paying attention while using the backhoe andcausing damage to the tire. To Grimes Rock, these disciplinary forms stand asdocumentation of Saldivar’s careless performance on the job. 

 

The alleged performanceissues extend beyond those documented on discipline forms. Rene Garciatestified that, on several other occasions, Saldivar failed to properly servicethe mine’s mobile equipment. Tr. 475. These instances included failures toreplenish hydraulic fluids and to clean the air filters. Tr. 475. Thistestimony was supported by equipment operator Mauricio Garcia, who testifiedthat the fluid levels on his dozer were “either way too low or they were wayover the [proper] amount” after Saldivar had performed the lube service. Tr.669.  

 

Second, Grimes Rockpoints to Saldivar’s poor attendance as a factor in the decision to terminatehim. Saldivar admitted at hearing that he had been tardy on multiple occasions,and he was written up for being four hours late to work on December 12, 2020. Tr.175; Sec’y Ex. 7. When asked about Saldivar’s overall attendance, Melendez saidthat “[i]t wasn’t good.” Tr. 429. Saldivar missed days at work due to meetingswith his probation officer, often with Melendez’s permission. Tr. 176-77. Accordingto mine management, these frequent meetings had become quite disruptive toSaldivar’s work schedule. Melendez recounted telling Saldivar to have hisprobation officer contact Melendez so that he could relay that Saldivar would “endup losing his job due to attendance” if the meetings continued with the samefrequency. Tr. 430. Melendez also said at hearing that Saldivar’s timecardrevealed further attendance issues that went beyond the excused absences withhis probation officer. Tr. 430.  

 

Third, the operator citesSaldivar’s poor attitude as a reason for his firing. Melendez testified thatSaldivar butted heads with other employees. Tr. 409-14. According to Melendez,Saldivar did not take criticism well and would act more knowledgeable than hiscoworkers. Tr. 409-14. Rene Garcia testified that other employees began to ask himwhether anyone else could service their equipment because “they did not want todeal with Mr. Saldivar.” Tr. 474. Mauricio Garcia told the Court that hestopped asking Saldivar to correct his mistakes because Saldivar got so“bothered” if confronted about his errors. Tr. 669. When counseled bymanagement, Saldivar “would get upset” and ignore the directives given to him. Tr.410, 474. While the write-ups and the tardiness alone do not support a basisfor terminating Saldivar, the testimony of a number of witnesses regardingSaldivar’s attitude and inability to get along with other miners is persuasive.

 

Finally, Grimes Rockclaims that it terminated Saldivar in part due to the damage he caused tocompany property. The company asserts that Saldivar’s carelessness resulted intire and rim damage on the water truck and the backhoe. Other documentedperformance issues, like leaving the transmission fluid uncapped and failing toreplenish fluids on mobile equipment, could have caused further damage,according to Grimes Rock. Melendez testified that he “hired [Saldivar] to makesure that we kept our equipment safe and good, and he was actually costing memore money [with] every [piece of] equipment he would touch.” Tr. 432.

 

In sum, Grimes Rock haspresented evidence rebutting the existence of the discriminatory motive behindthe adverse action. The Respondent’s burden in making its rebuttal is merelyone of production. Grimes Rock has introduced legitimate evidence that, iftaken as true, would permit a factfinder to conclude that it did notdiscriminate against Saldivar. Accordingly, Grimes Rock has satisfied itsburden of production and successfully rebutted the presumption ofdiscrimination. 

 

*3.    **Disposition*

 

Saldivar established aprima facie case, and Grimes Rock offered evidence in rebuttal. The rebuttablepresumption of discrimination has dissipated. Now, the only inquiry remainingin this case is whether the Secretary has shown by a preponderance of theevidence that Saldivar’s engagement in protected activity was a but-for causeof his termination. 

 

In his brief, the Secretary arguesthat certain aspects of Grimes Rock’s asserted rationales for terminatingSaldivar are illegitimate and pretextual. The opportunity to prove pretext isan important part of the complainant’s final burden inemployment-discrimination cases. The complainant “must . . . have anopportunity to prove by a preponderance of the evidence that the legitimatereasons offered by the defendant were not its true reasons, but were a pretextfor discrimination.” *Tex. Dep't of Cmty. Affairs v. Burdine*, 450 U.S.248, 253 (1981) (under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title VII”)).[2]Indeed, “a plaintiff’s prima facie case, combined with sufficient evidence tofind that the employer’s asserted justification is false, may permit the trierof fact to conclude that the employer unlawfully discriminated.” *Reeves v.Sanderson Plumbing Prod., Inc*., 530 U.S. 133, 148 (2000) (under Title VII).

 

The Commission has explained that“pretext may be found . . . where the asserted justification is weak,implausible, or out of line with the operator’s normal business practices.” *Sec'yon behalf of Price v. Jim Walter Res., Inc*., 12 FMSHRC 1521, 1534 (Aug.1990) (internal citations omitted). In previous cases, the Commission hasoutlined the types of evidence that may show pretext: a complainant maydemonstrate “either (1) that the proffered reasons had no basis in fact, (2)that the proffered reasons did not actually motivate his discharge, or (3) thatthey were insufficient to motivate discharge.” *Turner*, 33 FMSHRC at 1073(emphasis omitted). 

 

Here, the Secretary offers three showingsof pretext. First, he points to inconsistencies among Melendez’s statements abouthis reasons for terminating Saldivar. In the termination letter, Melendez toldSaldivar that he was being fired for “damage [to] company property andperformance issues,” but he did not mention attendance or attitude issues as amotivating factor. Sec’y Ex. 15. Then, in a later letter to MSHA, Melendez said“[t]he reason I terminated Alvaro was for damaging company property.” Sec’y Ex.14. These inconsistencies allegedly shed doubt upon at least two of the operator’sstated rationales for firing Saldivar. Second, the Secretary argues thatMelendez’s readiness to hire Saldivar after his first period of employment and,subsequently, to provide a positive reference for Saldivar shows management’s satisfactionwith Saldivar’s work performance. Third, the Secretary asserts that theevidence of disparate treatment, discussed *supra*, demonstrates that twonondiscriminatory rationales are pretextual. 

 

None of the proffered theories ofpretext are compelling. The inconsistencies in Melendez’s statements are minor,and they do not necessarily show that Melendez was dishonest. Perhaps Melendezshould have been more thorough in his statements but failing to do so does not standas evidence of discrimination. Similarly, pretext is not found in Melendezrehiring Saldivar. Melendez testified that Saldivar is a skilled welder. Rehiringhim based on that performance, or even offering a positive reference based onhis welding[3],is not inconsistent with firing him for poor performance in a different role. Finally,the alleged disparate treatment does not prove pretext. The Secretary notes thatanother Grimes Rock employee, Oscar Nava, also had attendance issues. 

 

Grimes Rock did not fire Nava for thoseattendance issues—but Melendez did demote him. Further, Nava was not a“similarly situated” employee when compared to Saldivar. Nava worked at GrimesRock for five years and had been promoted multiple times during that tenure. Saldivar,in contrast, worked for Grimes Rock for just three months and remained at anentry-level position. Both parties failed to provide evidence in the record todemonstrate how Grimes Rock routinely hires or fires employees, and on what basis.Without such evidence it is difficult to conclude that Saldivar was treateddifferently than others. All of the Secretary’s evidence regarding disparatetreatment is unpersuasive because it fails to identify, with any specificity,true comparators that were treated differently than Saldivar.[4]

 

The Secretary’s limited showing ofpretext, particularly evidence regarding disparate treatment, cannot support afinding of discrimination on behalf of Saldivar. The Secretary’s case restsalmost exclusively upon Saldivar’s testimony. While I find Saldivar to be acredible witness, the record is simply devoid of other testimonial or physicalevidence substantiating Saldivar’s claims. I also find Melendez’s testimony tobe credible. The two men rarely deviated in their recitation of the facts, butinstead disagree on how to interpret those facts. The weight of the evidence inthis case tilts in favor of the interpretation advanced by Melendez and GrimesRock. 

 

The mine operator has established areasonable nondiscriminatory rationale for firing Saldivar. His performanceissues are well documented in the discipline forms, as well as in testimonyfrom his coworkers and supervisors. Grimes Rock has introduced photographs andother documentation showing the property damage incurred by Saldivar, and thecompany has also elicited testimony from several mine employees attesting toSaldivar’s bad attitude at work. As for attendance, Saldivar admitted to acertain amount of tardiness, and his supervisors all testified to additionalattendance issues. Given the testimony in the record, Ifind the attendance issue to be pretextual, thrown into the mix to support theallegation that Saldivar was terminated due to his performance.  However, theother bases raised by Grimes Rock may have played a part in the firing. Therecord supports a conclusion that Saldivar was fired for legitimate reasons.

 

By comparison, the Secretary’s caseis limited. In many instances, the Secretary’s claim of discrimination reliesupon uncorroborated witness testimony instead of tangible documentary evidence.[5] For example, there is little, ifany, evidence beyond Saldivar’s own testimony that demonstrates Grimes Rock’s hostilitytoward his protected activity. 

 

 

I accept the Secretary’s view thatGrimes Rock, through its owner, tried to influence Saldivar’s subsequent employerby relating that Saldivar had filed a discrimination complaint against Grimes Rockand by warning that he may do the same thing to the new employer. However, thatis not enough to establish animus. The Secretary also characterizes as hostilethe issuance of the five disciplinary writeups, but those disciplinary actionsare more likely attributable to Saldivar’s poor performance at work. TheRespondent has offered documentation and testimony supporting the allegationsput forth in those discipline forms. In contrast, the Secretary offers verylittle evidence demonstrating that those writeups are marked by hostility or pretext.

 

Finally, the Secretary argues that“Grimes [Rock] should not be able to violate the Mine Act by failing to providethe required training and then blame Mr. Saldivar” when his inadequate trainingled to accidents or property damage. Sec’y Br. at 16. The Secretary’s point iswell taken. The fault for equipment damage should not be laid upon an untrainedminer, and the Secretary alleges that Grimes Rock consistently neglected toprovide its miners with the task training mandated by law. Based on my reviewof the record, the Secretary is likely correct. Unfortunately for theSecretary, that is not enough to negate the evidence supporting the operator’s reasonsfor termination. Ultimately, the Secretary has failed to adequately refute the mine’slegitimate nondiscriminatory rationale for firing Saldivar. 

 

This case is a close call.  Irecognize that the Complainant is at a disadvantage because “it is the employerwho is in the best position to prove what [it] would have done,” *Pasula*,2 FMSHRC at 2800, but the Secretary must still satisfy his burden to show by apreponderance of the evidence that discrimination was a but-for cause ofSaldivar’s termination. The evidence offered by the Secretary in this case doesnot satisfy that burden. I find that Saldivar was terminated for both protectedactivity and poor performance; however, the protected activity was not abut-for cause of his firing.

 

In conclusion, I find that theSecretary has demonstrated a prima facie case of discrimination but has failedto adequately establish that the proffered reasons for terminating Saldivarwere pretext.  The Secretary did not show by a preponderance of the evidencethat Saldivar’s protected activity was a but-for cause of his termination. Instead,the weight of the evidence suggests that Grimes Rock would have terminatedSaldivar for legitimate reasons even in the absence of his complaints. Therefore,I find that the Secretary has not met the required burden of proof pursuant tosection 105(c) of the Mine Act. Because the Secretary has not met his burden inthis case, I need not reach the question of remedy. 

 

**III.  ****ORDER**

 

Accordingly, it is **ORDERED**that the complaint of discrimination brought by the Secretary of Labor onbehalf of Alvaro Saldivar is hereby **DISMISSED**. The outstanding motionsfiled by the Respondent in this case are summarily **DENIED**. The Order ofTemporary Economic Reinstatement in the related case is terminated.  

 

 

 

 

 

/s/Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

** **

** **

**Distribution:(Electronic and Certified Mail)**

 

Karla Malagon, U.S. Department of Labor, Office of theSolicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, malagon.karla@dol.gov

 

Jessica M. Flores, U.S. Department of Labor, Office of theSolicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, Flores.Jessica@dol.gov

 

Peter Goldenring, Pachowicz & Goldenring PLC, 6050Seahawk Street, Ventura, CA 93003, peter@pglaw.law

 

Mark R. Pachowicz, Pachowicz & Goldenring PLC, 6050Seahawk Street, Ventura, CA 93003, mark@pglaw.law

 

Alvaro Saldivar, 1241 Lookout Drive, Oxnard, CA 93035, saldivarwelding@icloud.com

 

----

[1] At the time of publication, onlyone court has had the opportunity to apply the new Ninth Circuit “but-for”standard after a hearing in a discrimination case. *See**Thomas*,**43 FMSHRC at 538-40. That decision engaged in a detailed discussion of howto apply the Ninth Circuit’s standard while preserving Commission precedent andhonoring the intent of the legislators who drafted the Mine Act, who sought toencourage miners’ free engagement in protected activity. Furthermore, thedecision clarified how burden-shifting and the prima facie case are consistentwith the Ninth Circuit’s holding in *Thomas*. The test and theaccompanying discussion are adopted here. 

[2] The Commission often looks toother federal anti-retaliation legislation like Title VII when addressingquestions involving the anti-retaliation provision of the Mine Act. *See,e.g., William Metz v. Carmeuse Lime, Inc.*, 34 FMSHRC 1820, 1830 (Aug.2012);*Turner*33 FMSHRC at 1065-66.

[3] The evidencesupporting the notion that Melendez gave Saldivar a positive reference is weak.

[4] This includes the Secretary’sargument regarding the paucity of other miners who were terminated forperformance issues. *See* Sec’y Br. at 16. Melendez testified that he didfire an accountant for poor work performance, *see* tr. 379, and theSecretary—who bears the burden of proof in this case—failed to identify anysimilarly situated employees whose performance issues did not lead todiscipline. 

[5] The Secretary argues that it lacksdocumentary evidence in part because Grimes Rock withheld preoperationalinspection sheets documenting Saldivar’s complaints. In his brief, theSecretary asserts that “[a]s a sanction for [Grimes Rock’s] spoliation of highlyrelevant evidence, the Court should infer that the missing reports reflectedMr. Saldivar’s protected activity of complaining about safety issues.” Sec’yBr. at 21. However, I credited Saldivar’s testimony in that regard, so there isno need to grant that inference. I accepted it in part due to the operator’scontinued resistance to cooperate in the case and to provide relevant documentsto the Secretary as requested. The mine operator’s behavior throughout thecase, toward the Court and toward the Secretary’s counsel is clearly animus,but not necessarily against Saldivar.