i 

September and October 2021 

TABLE OF CONTENTS 

COMMISSION ORDERS 

09-08-21 MONONGALIA COUNTY COAL 

CO. 

PENN 2020-0004 Page 403 

09-08-21 BLUE MOUNTAIN MINERALS WEST 2021-0182 Page 406

09-08-21 CHAMPLAIN STONE, LTD. YORK 2021-0048 Page 410 

09-09-21 CACTUS CANYON QUARRIES, 

INC. 

CENT 2021-0090 Page 413 

09-28-21 UNITED TACONITE, LLC LAKE 2020-0014-M Page 417

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-24-21 CONSOL PENNSYLVANIA COAL 

COMPANY LLC 

PENN 2020-0101 Page 421

ADMINISTRATIVE LAW JUDGE ORDERS 

09-09-21 SEC. OF LABOR O/B/O MIGUEL 

PUGMIRE v. NEVADA GOLD 

MINES, LLC 

WEST 2021-0148-

DM 

Page 465

09-24-21 PRAIRIE STATE GENERATING CO. LAKE 2021-0158 Page 469
ii 

No Review was Granted or Denied During the Month of September 2021. 

No Review was Granted or Denied During the Month of October 2021. 
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

September 8, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On October 15, 2019, the Commission received from 

Monongalia County Coal Company two motions seeking to reopen penalty assessments that had 

become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 

815(a).1

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

Docket Nos. PENN 2020-0004 and PENN 2020-0005 involving similar procedural issues. 29 

C.F.R. § 2700.12. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

MONONGALIA COUNTY COAL CO. 

 

Docket No. PENN 2020-0004 

A.C. No. 46-01968-483591 

Docket No. PENN 2020-0005 

A.C. No. 46-01968-485001 

43 FMSHRC Page 403
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessments were delivered on February 21, 2019, and 

March 15, 2019, and became final orders on March 23, 2019, and April 14, 2019, respectively. 

Monongalia states that in June 2019, its safety director informed MSHA’s Civil Penalty 

Compliance Office that he was no longer receiving proposed penalty assessments at an address 

in Holbrook, Pennsylvania. The safety director later provided MSHA’s Civil Penalty 

Compliance Office an address to use for future mailings. The operator further submits that on 

June 6, 2019, Monongalia sent payment for penalties associated with a total of six citations listed 

on the two proposed penalty assessment forms. 

The Secretary does not oppose the requests to reopen, and notes that MSHA received 

payment for some of the citations listed on the proposed assessments on July 3, 2019, and on 

September 17, 2019. The Secretary urges the operator to take steps to ensure that future penalty 

contests are timely filed. 

The operator does not explain when its change of address occurred, and the reasons for 

delay between the time that the proposed penalty assessments were delivered and its action in 

June 2019. It is unclear from the record whether MSHA mailed the proposed assessments to 

Monongalia’s official address of record at the time of the assessments and whether Monongalia 

maintained its correct address with MSHA. 

On the basis of the present record, we are unable to evaluate the merits of Monongalia’s 

position. In the interest of justice, we remand the matter to the Chief Judge for assignment to a 

Judge to determine whether Monongalia has met the criteria for relief under Rule 60(b). If the 

Judge determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act 

and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC Page 404
Distribution: 

Christopher D. Pence, Esq. 

Hardy Pence PLLC 

10 Hale Street, 4th floor 

P.O. Box 2548 

Charleston, WV 25329 

cpence@hardypence.com 

John M. McCracken, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 405
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

September 8, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On April 15, 2021, the Commission received from Blue 

Mountain Minerals (“Blue Mountain”) a motion seeking to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 

815(a). 

Under section 105(a), an operator who wishes to contest a proposed penalty must notify 

the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If 

the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 30 U.S.C. § 815(a). 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

The Secretary for the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) initially filed a response to Blue Mountain’s request on April 21, 2021, stating that he 

does not oppose the motion. On May 10, 2021, the Secretary filed a supplemental response 

conceding that the operator had in fact timely requested a hearing on December 23, 2020, but 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

BLUE MOUNTAIN MINERALS 

Docket No. WEST 2021-0182 

A.C. No. 04-00099-525919

43 FMSHRC Page 406
that MSHA’s mail processing had inadvertently delayed discovery of the timely contest. Upon its 

discovery, MSHA processed the contest, and a penalty petition was filed on April 20, 2021, and 

docketed as WEST 2021-0184.1

 The Secretary considers this motion to reopen as moot, as the 

underlying violations are under contest. 

Because the Secretary has processed this case as timely contested, we conclude that Blue 

Mountain’s motion to reopen is moot here. See Olmos Contracting 1, LLC, 39 FMSHRC 2015, 

2019 (Nov. 2017) (“As this matter was timely contested and has now been resolved, the motion 

to reopen this case is moot.”); Kembel Sand & Gravel, 33 FMSHRC 1153, 1153-54 (June 2011). 

Accordingly, this motion is dismissed. 

 /s/ Arthur R. Traynor, III 

 Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich Jr., Commissioner 

1

 On July 19, 2021, The Chief Judge issued an Order to Show Cause for Blue Mountain’s 

failure to file a response to the Secretary’s Petition for Assessment of Civil Penalty in Docket 

No. WEST 2021-0184. To date, a response from the operator has not been received. 

43 FMSHRC Page 407
Distribution: 

John T. Salkowski 

President 

Blue Mountain Minerals 

24599 Marble Quarry Rd 

Columbia, CA, 95310 

jsalkowski@bluemtnmin.com 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Thomas A. Paige 

Deputy Associate Solicitor 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor, 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

paige.thomas.a@dol.gov 

John M. McCracken, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor, 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

43 FMSHRC Page 408
Scott Horn, CLR 

U.S. Department of Labor Mine Safety and Health Administration 

991 Nut Tree Rd., 2nd Floor 

Vacaville, CA 95687 

horn.donald@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 409
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

September 8, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On May 20, 2021, the Commission received from Champlain 

Stone, Limited (“Champlain”) a motion seeking to reopen a penalty assessment that had become 

a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a), an operator who wishes to contest a proposed penalty must notify 

the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If 

the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 30 U.S.C. § 815(a). 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

The Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates 

that the proposed assessment was delivered to the operator on February 11, 2021. The 

assessment became a final order of the Commission on March 13, 2021. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CHAMPLAIN STONE, LTD. 

 

Docket No. YORK 2021-0048 

A.C. No. 30-02803-529358 

43 FMSHRC Page 410
Champlain asserts that it timely submitted its contest of the citations on February 25, 

2021, but that it erroneously mailed the contest to MSHA’s St. Louis office along with its 

payment for other uncontested violations. It claims that it learned of its mistake when it received 

the April 30, 2021 delinquency letter from MSHA on May 4, 2021. Champlain has not filed any 

other motions to reopen with the Commission in the last two years. The Secretary does not 

oppose the request to reopen but urges the operator to take steps to ensure that future penalty 

contests are timely filed in accordance with MSHA’s regulations at 30 C.F.R. § 100.7 and the 

Commission’s procedural rules. 

Having reviewed Champlain’s request and the Secretary’s response, we find that the 

operator inadvertently mailed its contest form to MSHA’s St. Louis office along with its 

uncontested penalty payments. In the interest of justice, we hereby reopen this matter and 

remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with 

Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of 

this order. See 29 C.F.R. § 2700.28. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich Jr., Commissioner 

43 FMSHRC Page 411
Distribution: 

Heidi Williams, 

Safety & Health, 

Champlain Stone, Ltd. 

PO Box 650 

Warrensburg, NY 12885 

hwilliams@catamountconsultingllc.com 

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

Archith Ramkumar 

Counsel, Appellate Litigation 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor, 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

ramkumar.archith@dol.gov 

John M. McCracken, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor, 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

43 FMSHRC Page 412
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

September 9, 2021 

 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY THE COMMISSION: 

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act” or “Act”). On August 30, 2021, Cactus Canyon Quarries, Inc. 

(“Cactus Canyon”) filed with the Commission a petition for interlocutory review of an order 

issued by an Administrative Law Judge on August 13, 2021, denying Cactus Canyon’s motion to 

certify for interlocutory review previous orders by the Judge. See 29 C.F.R. § 2700.76. In the 

earlier orders, the Judge denied requests by Cactus Canyon to compel discovery and a motion for 

summary judgment. See PIR at 1. 

Upon consideration of the pleadings filed by Cactus Canyon, we have determined that the 

Judge’s denial of Cactus Canyon’s motions to compel discovery and motion for summary 

judgment do not involve a controlling question of law and that immediate review of those rulings 

would not materially advance the final disposition of this proceeding. See 29 C.F.R. § 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

CACTUS CANYON QUARRIES, INC. 

 

Docket No. CENT 2021-0090 

A.C. No. 41-00009-527340 

43 FMSHRC Page 413
2700.76(a)(2). Accordingly, we conclude that Cactus Canyon has failed to establish a basis for 

granting interlocutory review and, therefore, we deny the petition. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC Page 414
Distribution: 

Andy Carson 

Cactus Canyon Quarry Inc. 

7232 Co. Road 120 

Marble Falls, TX 78654 

ccqmarblefalls@aol.com 

Tina D. Davila 

U.S. Department of Labor 

Office of the Solicitor 

525 Griffin Street, Suite 501 

Dallas, TX 75202 

davila.tina@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Administrative Law Judge David Simonton 

Federal Mine Safety Health Review Commission 

43 FMSHRC Page 415
721 19th Street, Suite 443 

Denver, CO 80202-2500 

dsimonton@fmshrc.gov 

43 FMSHRC Page 416
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

September 28, 2021 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018) (“Mine Act”). On October 29, 2019, the Commission received from United 

Taconite, LLC (“United Taconite”) a request to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). We have held, however, that in 

appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have 

become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 

786-89 (May 1993) (“JWR”). 

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or 

other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall 

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and 

that, if the defaulting party can make a showing of good cause for a failure to timely respond, the 

case may be reopened and appropriate proceedings on the merits will be permitted. See Coal 

Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

UNITED TACONITE, LLC 

 

Docket No. LAKE 2020-0014-M 

A.C. No. 21-03404-493313 

43 FMSHRC Page 417
The proposed assessment was delivered to the operator on June 17, 2019 and became a 

final order on July 17, 2019. The total penalty for all the violations in the assessment was 

$27,380.1 

The operator primarily seeks to reopen this matter on the basis that the employee who 

received the proposed assessment failed to deliver it to Bryan Baird, the safety director in charge 

of handling proposed assessments. The operator claims that Baird did not become aware of the 

proposed assessment until July 19, 2019, two days after the proposed assessment had become a 

final order. The operator mailed a contest notice later the same day for four citations: Citation 

Nos. 9385814, 9385817, 9385818 and 9385819. The contest notice was received by MSHA on 

July 22, five days after the proposed assessment had become a final order.2 

MSHA sent a letter dated July 29, 2019 informing the operator that its contest was late 

and that the proposed assessment had become a final order. The letter was sent to the address of 

the operator’s counsel. However, the operator’s counsel allegedly moved to a new office in July 

2019 and therefore claims not to have received the mailed letter. It is unclear why the mailed 

letter was not forwarded to counsel’s new address. 

Subsequently, on August 14, 2019, MSHA deposited the operator’s check of $10,775. 

MSHA applied part of this check to Citation Nos. 9385817 and 9385819, which had been listed 

in the operator’s untimely contest, while the remainder of the check was applied to Citation No. 

9385812. In an email, the operator claimed that MSHA incorrectly applied this payment to the 

wrong citations. The operator maintains that the payment of $10,775 was intended to be applied 

to the remainder of the penalty assessment besides the citations listed in its contest (the 

remainder of the assessment was $10,775). 

On September 12, 2019, the operator received a delinquency notice, dated September 3, 

and the operator’s counsel immediately contacted MSHA. On that same day, MSHA sent the 

operator’s counsel a copy of the July 29 letter via email. As set forth above, the operator’s 

counsel claims that it became aware of the letter only after receiving the emailed copy on 

September 12. 

The operator also claims that MSHA erred in determining that its contest was late. An 

operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later 

than 30 days after receiving the proposed penalty assessment, and if the operator fails to do so, 

the proposed assessment becomes a final order of the Commission. 30 U.S.C. § 815(a). Despite 

this, the operator claims that 29 C.F.R. § 2700.8(b) extends the deadline for filing contests by 

1

 The operator’s motion to reopen erroneously states that the proposed assessment was 

delivered on July 17, 2019, and erroneously lists the total penalty for the proposed assessment as 

$24,917. 

2

 The total penalty for the four citations listed in the contest was $16,605. The total 

penalty for the remaining violations in the proposed assessment was $10,775 (27,380 - 16,605 = 

10,775). 

43 FMSHRC Page 418
five days when MSHA serves an assessment by a method of delivery other than same day 

service. 

However, the Commission has conclusively rejected the argument that 29 C.F.R. § 

2700.8(b) applies to contests of proposed assessments. Bucyrus Field Svcs. Inc., 31 FMSHRC 

1029, 1030 at n.1 (Sept. 2009). Therefore, it is unnecessary to further consider this issue. 

In this case, we must consider whether the operator demonstrated that it acted in good 

faith, and whether the Secretary opposes the motion or alleges that the operator acted in bad 

faith. Noranda Alumina, LLC, 39 FMSHRC 441, 444 (Mar. 2017). Here, the operator’s good 

faith intent to timely contest the penalty is demonstrated by the fact that its contest was mailed 

on July 19, just two days after the assessment became a final order. Moreover, the Secretary does 

not oppose the motion or allege that the operator acted in bad faith. 

Having reviewed United Taconite’s request and the Secretary’s response, we conclude 

that, in the interest of justice, the part of the assessment relating to Citation Nos. 9385814, 

9385817, 9385818 and 9385819 should be reopened. The remainder of the assessment will 

remain as a final order. Accordingly, this case is remanded to the Chief Administrative Law 

Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 

29 C.F.R. Part 2700. 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

43 FMSHRC Page 419
Distribution (e-mail): 

Patrick W. Dennison 

Fisher & Phillips LLP 

Six PPG Place, Suite 830 

Pittsburgh, PA 15222 

Pdennison@fisherphillips.com 

John M. McCracken, Esq. 

Office of the Solicitor 

Division of Mine Safety and Health 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

McCracken.John.M@dol.gov 

Archith Ramkumar, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Ramkumar.Archith@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

43 FMSHRC Page 420
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF CHIEF ADMINISTRATIVE LAW JUDGE 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

September 24, 2021 

 

DECISION & ORDER 

Appearances: Brian P. Krier, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, VA, Representing the Secretary of Labor 

Nicholas J. Bell & Erin J. McLaughlin, Buchanan Ingersoll Rooney, 

Pittsburgh, PA, Representing the Respondent 

Before: Judge Lewis 

 This case is before me upon a complaint of discrimination brought by the Secretary of 

Labor on behalf of Barbara E. Cassidy (“Complainant”), a miner, against Consol Pennsylvania 

Coal Company LLC (“Respondent”), pursuant to Section 105(c) of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c). 

 The Secretary of Labor, on behalf of Barbara E. Cassidy, alleges that Cassidy was 

discriminated against in violation of her statutory rights after engaging in protected activities. A 

hearing was held via Zoom Video Conferencing on February 03, 2021-February 04, 2021, at 

which the parties presented testimony and documentary evidence. After the hearing, the parties 

submitted Post Hearing Briefs and Reply Briefs, which have been fully considered.1 

1

 In this decision, the joint stipulations, transcript, the Secretary’s exhibits, Respondent’s 

exhibits, and joint exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S-#,” “Ex. R-#,” and “Ex. J-

#” respectively. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of BARBARA E. CASSIDY, 

 Complainant, 

 v. 

CONSOL PENNSYLVANIA COAL 

 COMPANY LLC, 

 Respondent 

 DISCRIMINATION PROCEEDING 

Docket No. PENN 2020-0101 

MSHA Case No.: PITT-CD-2020-02 

Mine: Enlow Fork Mine 

Mine ID: 36-07416 

43 FMSHRC Page 421
STIPULATIONS 

 The parties submitted stipulations as a joint exhibit. The following joint stipulations 

represent those where there is agreement: 

1. Respondent is an “operator” as defined in Section 103(d) of the Federal Mine 

Health and Safety Act of 1977, as amended (hereinafter, “the Mine Act”), 30 

U.S.C. § 802(d). 

2. Respondent is a “person” subject to Section 105(c) of the Mine Act, 30 U.S.C. 

§ 815(c). 

3. The operations of Respondent at the Enlow Fork Mine are subject to the 

jurisdiction of the Mine Act. 

4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission and its designated Administrative Law Judge 

pursuant to Sections 105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823. 

5. At all relevant times, Complainant Barbara E. Cassidy was a “miner” as defined 

in Section 3(g) of the Act, 30 U.S.C. § 802(g). 

6. Complainant was employed as an Assistant Section Supervisor at Respondent’s 

Enlow Fork Mine from June 18, 2007 to May 11, 2008, and a Section Supervisor 

from May 12, 2008 to August 31, 2020. 

7. On December 19, 2019, Respondent suspended Complainant for ten (10) days 

without pay, effective January 2, 2020. 

8. As a result of her ten-day suspension, Respondent reduced Complainant’s pay by 

a total of $4,265.04. 

9. Respondent paid Complainant a biweekly salary of $4,265.04 ($110,891.04 

annually) at the time of her suspension. 

10. Complainant Ms. Cassidy participated in the Company-sponsored health and 

welfare benefit plans, including medical/prescription, dental and vision, life 

insurance and disability. Other benefits included 401(k) company match (up to 

6%). 

11. As a result of her ten-day suspension, Respondent reduced the 401(k) company 

match contribution to Complainant by $255.90. 

12. Payment of the total proposed penalty of $15,000.00 in this matter will not affect 

Respondent’s ability to continue in business. 

13. MSHA's Data Retrieval System, publicly available at 

http://www.msha.gov/drs/drshome.htm, accurately sets forth: 

a. the size of the Respondent in production tons or hours worked per year; 

43 FMSHRC Page 422
b. the size, in production tons or hours worked per year, of the mine; 

c. the total number of assessed violations for the time period listed; and 

d. the total number of inspection days for the time period listed therein. 

14. MSHA’s Penalty Assessment accurately sets forth: 

a. the size of the Respondent in production tons or hours worked per year; 

b. the size, in production tons or hours worked per year, of the mine; 

c. the total number of assessed violations for the time period listed; and 

d. the total number of inspection days for the time period listed therein. 

Ex. J-1. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The findings of fact are based on the record as a whole and my careful observation of the 

witnesses during their testimony. In resolving any conflicts in the testimony, I have taken into 

consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies, 

in each witness’ testimony and between the testimonies of the witnesses. In evaluating the 

testimony of each witness, I have also relied on his or her demeanor. Any failure to provide 

detail as to each witness’ testimony is not to be deemed a failure on my part 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) (administrative law judge is not 

required to discuss all evidence and failure to cite specific evidence does not mean it was not 

considered). 

Background: 

Barbara E. Cassidy worked for a total of 27 years in the mining industry at Matthews 

Mine, the Mapel Creek Mine, and with Consol Energy at the Enlow Fork Mine.2 Tr. 19, 24-25. 

She worked at Enlow Fork for 13 years and 2 months as a section foreman, which is a salaried 

management position. Tr. 19. Her duties in this position varied from being assigned to a section 

to being assigned as belt foreman or in charge of transportation. Tr. 19-20. Cassidy’s duties with 

regard to transportation involved her going underground 30 minutes before the official start of 

the shift and organizing the rides in order to transport crew to their respective sections. Tr. 20. In 

performing these tasks, she communicated with the shift foreman and assistant shift foreman 

from the previous shift. Tr. 20. It was her responsibility to ensure that new crews were at their 

areas before relieving the previous crews, as well as that the fire bosses and examiners were at 

their examination areas. Tr. 20-21. 

2

 At the time of hearing, Barbara E. Cassidy was unemployed. Tr. 19. 

43 FMSHRC Page 423
As section foreman, Cassidy had numerous safety responsibilities, including answering 

safety questions from her crew and conducting pre-shift examinations.3

 Tr. 27-28. During a preshift examination, one examines the mine for gases, violations of mandatory safety standards, 

and other dangers to ensure safety where miners work and travel. Tr. 28. The pre-shift examiner 

then provides notice and warning to the upcoming shift of what they might encounter. Tr. 29. 

Cassidy often raised safety concerns with management, including to her immediate 

supervisor, which at the time was Assistant Mine Foreman David Knipple, and the belt foreman.4

Tr. 23, 29. There were certain issues that Knipple could not resolve for Cassidy, so she would 

take the matter to one of three assistant mine foremen. Tr. 33. Usually, she would take matters to 

Assistant Mine Foreman Don Blumetti, because he was the most accessible. Tr. 33. If Cassidy 

needed to raise an issue with the top person, she would bring the matter to Mine Foreman 

Michael Koffler. Tr. 32, 33. Cassidy was not aware of any company rules concerning how to 

raise safety concerns or rules against the use of emails to report such. Tr. 30. 

Enlow Fork Mine, where Cassidy worked, is a very large mine, with six active sections, 

two longwalls, and two portals. The mine measured a distance of almost 20 miles from the 

Archer Portal to the Oak Springs bottom, and almost 15 miles to Pleasant Grove Portal. Tr. 25, 

189-190. On average, it took the G2 crew one hour and 15 minutes to arrive to relieve the 

previous crew. Tr. 190. Until the fall of 2019, there were approximately 512 hourly employees 

and 275 salaried employees at the mine. Tr. 209. Since that time, the numbers have fluctuated 

significantly. Tr. 209. Cassidy was the first female foreman that Consol ever hired and the only 

one to work for the company at the time of hearing. Tr. 26. When Cassidy started working for 

Consol, there were six female hourly employees. Tr. 26. 

The September 13, 2019 Email: 

Cassidy was the only foreman in charge of transportation, and several fire bosses had 

come to her complaining that there were transportation issues with getting their crews to their 

sections. Tr. 34-35. Mine examiners and fire bosses reported to Cassidy that a lack of rides 

impacted their ability to conduct exams and correct violations observed during their exams. Tr. 

189. Cassidy had emailed Koffler seven months prior in February about the lack of rides, and 

Koffler responded that they were looking into the matter. Tr. 50. However, after seven months, 

the problem had not been addressed. Tr. 195. 

Therefore, at approximately 9:15 am on August 28, 2019, Cassidy went from the Archer 

to the Pleasant Grove Portal to Koffler’s office to discuss the issue. Tr. 35. Koffler was not in his 

office, so Cassidy left and returned the following day. Tr. 35. When he was still not in his office, 

3

 Cassidy has mine foreman papers, which qualifies her to be a section or shift foreman in 

the Commonwealth of Pennsylvania, as well as to sign books when necessary and to conduct 

pre-shift and on-shift examinations. Tr. 21-22. 

4

 At the time of hearing, Knipple had been the shift foreman for Consol for two years. Tr. 

354. In this capacity, he set up the shift and crews and assigned foremen to specific job 

responsibilities. Tr. 355. 

43 FMSHRC Page 424
she left a note on his desk indicating that she wanted to talk to him about the ride situation at the 

Archer Portal, and that due to her work schedule the best way to get ahold of her was via email.5

Tr. 35-36. After a week passed with no response from Koffler, Cassidy tried stopping at his 

office again, but again he was not there. Tr. 36. Therefore, Cassidy tried to call him by going to 

the top of the hill where the guard shack was located, because it was the only place where one 

could get cellular reception. Tr. 36. She could not reach him, so she left Koffler a voicemail. Tr. 

36. In the voicemail, Cassidy stated that she was now on the afternoon shift and asked that he 

email her to tell her when they could meet to discuss the ride situation. Tr. 36. Another week 

passed and Koffler still had not responded, so Cassidy decided to send him an email. Tr. 36-37. 

On September 13, 2019, Cassidy sent an email concerning the availability of rides to 

Koffler. Tr. 34. Cassidy spent three days drafting the email, including getting input from another 

section foreman, Justin Elliot. Tr. 36-39. Cassidy did not receive a response from Koffler, so 

after three days of waiting, she sent the email to Superintendent Josh Koontz6 and Assistant 

Superintendent Scott Watson. Tr. 37, 53. She did so because she felt it was “a very important 

issue, the emergency ride situation,” and she was concerned that Koffler had not received the 

email. Tr. 53-54. Cassidy did not believe that it was a violation of any rule or policy to send the 

email to any of these individuals. Tr. 54. 

In the email, Cassidy raised several safety concerns. Tr. 40-45. She wrote, “I am trying to 

get through to anyone and everyone that our ride situation is a serious one. We cannot get crews 

into their sections. We cannot get outby guys to their places of work.” Ex. R-I, Tr. 40-41. She 

explained in the letter, “Exams are not being done to the standard that they should be done 

because of [the lack of rides]. Also, violations cannot be corrected because these guys spend 

most of their time being the uber for anyone who needs to get from point A to point B. (More 

than ever before, the violations are not being addressed until the fireboss has gone through.” Ex. 

R-I. Cassidy concluded the email by pleading, “WE NEED TO RECTIFY THIS. WE NEED 

HELP!! HELP!! HELP!! PLEASE!!” Ex. R-I. 

Cassidy testified that her complaint concerning fire boss rides was a safety concern 

because if the fire bosses cannot get to a violation, then it cannot be corrected. Tr. 43. She 

provided the example of fire bosses needing to note the existence of float dust, which can easily 

ignite if there is not enough rock dust. Tr. 43. As a result of the lack of rides, workers are 

5

 Cassidy had email access underground in the mine in the last six to eight months that 

she was at the Archer Portal. Tr. 31-32. 

6

 At the time of hearing, Josh Koontz had been the general superintendent at Enlow Fork 

Mine since August 2018. Tr. 207. This is the chief health and safety official at the coal mine. Tr. 

207. Prior to this position, he was the assistant superintendent at Enlow Fork since 2017, and 

assistant superintendent at Consol’s Harvey Mine from 2015-2017. Tr. 208. From 2000-2015, 

Koontz worked for Consol and then Murray Energy. Tr. 208. 

Koontz’s responsibilities as general superintendent included the safety of the coal mine 

for all the hourly and salaried employees and contractors, as well as state and federal legal 

compliance. Tr. 208. He was also responsible for productivity and cost issues. Tr. 208-209. 

43 FMSHRC Page 425
correcting violations and fire bosses cannot perform their duties. Tr. 44-45. Cassidy testified that 

fire bosses were telling her, “I am not even looking. I am just running. I put the dates where they 

need to go and get the heck out of there because I know I only have a ride to get out.” Tr. 45. 

In addition to the regular rides, there were supposed to be emergency rides—also called 

“e-rides”—at the end of each track. Tr. 42, 46. The purpose of an emergency ride was to get an 

injured or sick individual out of the mine as quickly as possible. Tr. 47. Since there were two 

crews that worked in Two South, company policy required that there should have been two 

emergency rides. Tr. 46-47. However, there was only one emergency ride. Tr. 46. Cassidy 

testified that the emergency rides were not available on her shift or on other shifts. Tr. 42. 

Previously, Cassidy had contacted Blumetti to ask for a second emergency ride, and the 

response was that they could deal with only one for the time being, and that when the track 

extended further, they would consider supplying a second ride. Tr. 46. This concerned Cassidy, 

because it was not uncommon for multiple miners to be injured and need rides within an hour of 

one another. Tr. 47. Prior to the September 13 email being written, they had proceeded five 

blocks—or approximately 1,500 feet—further into the section, which meant that there would 

have been between 12-40 people working in the area. Tr. 48. 

Cassidy testified that she sent the email “to help rectify the emergency ride situation—

actually, the mantrip situation all the way around.” Tr. 49, 184. It was not her intent to go over 

anyone’s head or embarrass anyone in sending the email. Tr. 49-50. Cassidy had emailed Koffler 

previously, in February of 2019, concerning the ride shortage and problems with using water 

instead of antifreeze, because water evaporates more quickly. Tr. 50. Koffler replied to her 

February email by stating that he had placed Randy Powers in charge of the matter and that they 

would have antifreeze. Tr. 50. Though Koffler had replied that he was looking into the matter, 

the situation had not improved by the time that Cassidy sent the September 2019 email. Tr. 195. 

Cassidy felt that after seven months they should have seen some improvement, but instead the 

situation became worse. Tr. 195. She had also emailed Koffler and spoken to him about other 

safety issues, including a bad route in Three North and issues with high voltage cables. Tr. 178. 

The issues were never fixed, but Cassidy was not suspended or written up for raising safety 

concerns. Tr. 178-179. 

The email was addressed only to Koffler, but Koffler forwarded it to Enlow Fork Human 

Resources Supervisor Tina Hilk7

 and Watson. Tr. 304-305. There was no rule or policy 

prohibiting an employee from emailing a superior about anything, including safety concerns. Tr. 

308. 

7

 Tina Hilk was a human resources supervisor at Enlow Fork Mine, where her 

responsibilities included hiring, training, and employee relations. Tr. 265. Prior to working for 

Enlow Fork, Hilk was an educator. Tr. 266. 

43 FMSHRC Page 426
The September 17, 2019 Meeting: 

On September 17, 2019, Cassidy was called into a meeting with Hilk, Watson, and 

Koffler. Tr. 56-59. Hilk acknowledged that Cassidy raised safety concerns in her email and said 

that “the whole thing is alarming.”8 Tr. 59. Hilk called the meeting after the September email 

because she considered the issue to be both a safety and a personnel matter. Tr. 306. Hilk saw 

her role in the meeting as counseling Cassidy. Tr. 307. Hilk also testified that she wanted to 

make sure Cassidy understood Watson’s response to the issue, but admitted that it was outside 

the scope of her expertise and responsibilities since she knew little of mining or mine safety. Tr. 

303, 307. 

Watson tried to explain away the situation as the fire bosses all wanting their own rides, 

but Cassidy disagreed with that interpretation. Tr. 59-60. Watson did most of the talking at the 

meeting and told Cassidy that she was undermining management. Tr. 60. Cassidy responded by 

asking how she was undermining management when she was management. Tr. 60. Watson was 

concerned about how Cassidy was portraying the issue to the men. Tr. 62. Watson asked Cassidy 

how she was communicating the issue to the other miners, and she relayed the message that she 

was taking care of the problem. Tr. 61-62. He also told her that it was important that she provide 

assurances to the miners beneath her that it was a safe mine. Tr. 288. 

Cassidy testified that she sent the email in order “to bring to the forefront the seriousness 

of the rides. We were getting fewer and fewer rides...So, I was not undermining management at 

all.” Tr. 64. Cassidy testified that she did not have any other recourse to address this situation. 

Tr. 64. She could not write it in the examination book, because the rides were required by 

company policy rather than by law.9

 Tr. 64, 171-172. Consol was not following its own policy 

concerning the emergency rides, and she was told to always abide by the most stringent 

requirements, whether they were state law, federal law, or company policy. Tr. 197. 

In her email, Cassidy included proposed solutions, such as using rides that were parked at 

22 Headgate and Tailgate. Tr. 65. Watson explained to Cassidy that there was a transmission and 

gear box issue, and that they were addressing it. Tr. 65. Cassidy’s email also asked if they could 

just use other rides from Bailey or Harvey Mine, and he responded that it was something they 

were addressing. Tr. 65-66. At the meeting, Koffler said that he was aware of the situation and 

was working on it. Tr. 66. Cassidy was not convinced that Koffler understood the seriousness of 

8

 Hilk described safety as Consol’s “core value” and testified that miners were 

“empowered” to report anything that is unsafe. Tr. 268-269. She testified that employees could 

report safety concerns without fear of reprisals. Tr. 269. Hilk testified that she was not a safety 

expert and was unable to distinguish between what was and what was not a safety violation. Tr. 

285. 

9

 The legal requirements for a pre-shift examination are to examine the mine three hours 

before the next coal-producing shift for gases and other dangers, including MSHA and state 

mandatory safety standards. Tr. 187, 190. There is no law that encompassed this sort of ride 

shortage, so it would not be something that would be included in the pre-shift report. Tr. 187-

188. 

43 FMSHRC Page 427
the situation because he did not go underground often. Tr. 66-67. She was surprised to learn they 

were aware of the situation, yet nothing had been done for so long. Tr. 67. Cassidy also reminded 

Koffler that she had tried to call him, leave him a voicemail, and come to his office, before 

sending the email. Tr. 67. 

Cassidy was told that the email implied that the mine was unsafe. Tr. 68-69. She was also 

told that several lines in her email were unprofessional, including the last line that pleaded for 

help. Tr. 184-185; Ex. S-2. During the meeting, Hilk said that Cassidy could bring her concerns 

to management and that their doors are open. Tr. 69. Watson reiterated this statement at the end 

of the meeting. Tr. 69-70, 287. 

Hilk testified that there was no required reporting structure at the mine, but there was a 

general hierarchy above Cassidy. Tr. 279-280. She stated that Cassidy could have first reported 

to the shift supervisor and then the assistant mine foreman, then the assistant superintendent, and 

then the superintendent. Tr. 280. Hilk testified that this chain of command was important in order 

to get immediate results or feedback. Tr. 280. 

Hilk felt that the email concerning the rides was unprofessional because of the use of 

capital letters and the repeated use of the word “help.” Tr. 286. Hilk had never worked as a coal 

miner and had little knowledge of underground mine safety. Tr. 303. She had no responsibility 

for mantrips or roof control issues. Tr. 303. Hilk testified that the only way that she was able to 

determine that Cassidy’s September 13 email raised safety concerns was due to the last sentence 

of the email. Tr. 303-304. She testified that she could not tell if the email was safety related by 

its general contents because, “I’ve read the email, but to be honest, I had no idea what 

requirements we had in place for rides.” Tr. 304. 

The Rib and Roof Bolting Concerns and the November 15, 2019 Email: 

Enlow Fork Mine has rib and roof control issues. Tr. 72. In 2019, there had been several 

serious accidents in the mine, including a serious injury in May 2019 and a fatality on August 29, 

2019. Tr. 70. The fatality occurred when a foreman named Tanner McFarland was leaving the 

longwall face at the end of his on-shift exam and an enormous piece of coal broke loose and 

crushed him.10 Tr. 70-72. 

Cassidy was told there would be a training session on bolting and was instructed to 

attend. Tr. 74-79. Knipple told Cassidy before the training, “This is serious. Make sure your guys 

take it serious and you, too.” Tr. 74. Section Coordinator Frank Panepinto similarly told Cassidy, 

“this is a big deal. Make sure you take it seriously.” Tr. 75. However, the session was run by a 

sales representative who knew little about bolting issues. Tr. 74-79. Several of the miners on 

Cassidy’s crew asked the representative questions about which length of bolt was better, and 

questions about the glue they used, but the representative could not answer them. Tr. 75-80. 

Cassidy wrote down the questions in detail; confirmed with several roof bolters and a 

maintenance foreman named Mac Meadows that the questions were accurate; and on November 

10 The piece of coal was 20x7x4 feet large. Tr. 70-72. 

43 FMSHRC Page 428
19, 2019, she emailed the questions to Koffler, Watson, and Koontz. Tr. 80-81, 83-84, 86; 

Ex. S-5. Cassidy CC’d the email to the people who were with her, including the Section 

Coordinators Justin Drew and Panepinto, and Assistant Mine Foremen Steve Barr and 

Blumetti.11 Tr. 85-86. Cassidy wrote in the first line of the email “I'm not sure who I address 

about this information. That is why I am addressing all of you...” Tr. 86-87; Ex. S-5. 

In the email, Cassidy relayed the question of why they were not using six-foot bolts, 

since they already had those bolts on the section for the center and rib bolters and they were 

stronger than five-foot bolts. Tr. 88; Ex. S-5. She raised issues of the 60-second glue and the 

color-coding of stickers when many of the miners stated that they could not recognize the 

differences in color. Tr. 88-89; Ex. S-5. She also raised issues regarding the bolt sled and how 

bolts were stored, as well as the possible effectiveness of alternate bolting patterns. Tr. 90. 

Cassidy believed that the email implicated mine safety because there was a recent fatality caused 

by being crushed by coal, and she was raising questions concerning more effective bolts and 

bolting. Tr. 92-93. Cassidy did not think that this email would be a problem because at the 

September meeting, she was told that she could email them anytime and their doors were always 

open. Tr. 94. Cassidy never recorded the issue of five-foot bolts being used instead of six-foot 

bolts because she was not aware of it violating any laws. Tr. 173. Only safety violations that 

violated the law would be recorded in a pre-shift book.12 Tr. 174. Questions about a training at 

the mine would not be included in a pre-shift examination. Tr. 188. A pre-shift examination 

record is not the appropriate place to ask questions. Tr. 188. 

Barr and Blumetti were sitting at the foreman’s table at approximately 6 pm on the day 

they received the email, when Barr talked to Cassidy, asking her why she didn’t talk to him or 

Blumetti about the roof bolt matter.13 Tr. 95, 97. Blumetti repeatedly questioned why she had 

email access underground. Tr. 95. Barr addressed the issue of the six-foot versus the five-foot 

bolts, explaining that they preferred the five-foot bolts because they were less likely to result in a 

11 There were no hourly miners included in the email concerning bolts. Tr. 314. 

12 Cassidy was never suspended for writing in the pre-shift books, but she was disciplined 

in other ways, including receiving, “a lot of flak, even harassment from some of the other guys 

including, you know, Don Blumetti or Ron Houchins, who is the assistant mine foreman over at 

Pleasant Grove. They don’t like what I put in the book.” Tr. 191-192. On one occasion, Cassidy 

wrote that the lights were not working at a belt transfer, and Koffler questioned the shift foreman 

on the next shift if it was really a violation. Tr. 192. On other occasions, Cassidy wrote up 

wobbly steps, insufficient dust, stuck doors, and a corner falling on a belt line. Tr. 192-195. The 

harassment that Cassidy received as a result of making entries in the pre-shift examiner reports 

sometimes discouraged her from making such entries. Tr. 203. Instead, she would sometimes just 

fix the problems herself. Tr. 203-204. 

13 The foreman’s table is where pre-shift and on-shift books were kept, and where 

Cassidy would have to go at the end of her shift. Tr. 97. She described it as “the obvious place 

that they would wait for me, anyone would wait for me, if they want to see me at the end of a 

shift.” Tr. 97. 

43 FMSHRC Page 429
spinner.14 Tr. 95-96. Barr also emailed Cassidy a reply, where he acknowledged that the six-foot 

bolts were stronger, but addressed the issue of spinners with six-foot bolts. Tr. 98; Ex. S-6. No 

one said that anything in Cassidy’s email was inappropriate. Tr. 100. 

The November 18, 2019 Meeting: 

Three days after Cassidy sent the email, on November 18, 2019, Cassidy arrived to work 

and asked Knipple if she could leave on time that day for an emergency root canal, and he 

replied affirmatively. Tr. 101. When she was leaving work at approximately 8 am, the computers 

were down and she could not enter the shift’s final numbers. Tr. 101. Cassidy tried six different 

computers before Assistant Shift Foreman Adam DeVault told her that none of them were 

working. Tr. 101. She wrote the numbers down on paper and as she was handing them to 

DeVault, Watson approached her and said that he needed to see her before she left. Tr. 102. On 

her way up to Watson’s office, Cassidy passed Hilk’s office, and Hilk said that Watson needed to 

see her. Tr. 102. Cassidy asked Hilk if she could postpone her meeting with Watson because of 

her emergency dentist appointment, and Hilk left for 20 minutes to inquire. Tr. 102-103. 

Cassidy was led to a large conference room with Hilk and Watson. Tr. 104-105. Hilk sat 

across the table, and Watson sat very close to Cassidy. Tr. 105. Hilk was taking notes throughout 

the meeting and said little. Tr. 112. Watson had a thick file, with Cassidy’s email on top, which 

was highlighted and annotated. Tr. 106. He referred to the file and when Cassidy tried to look at 

it, he said that she was not permitted to see it. Tr. 106. Cassidy described Watson’s demeaner as, 

“absolutely irritated. He was beyond irritated. He was very, very upset. He was shaking. His 

voice was cracking. He was...loud.” Tr. 106. Cassidy described Watson as 

“demeaning...condescending...He seemed—he had had enough. He had way more than 

enough.” Tr. 106. During the meeting, Watson was yelling at Cassidy.15 Tr 107. Cassidy 

indicated that this was quite out of character for Watson. Tr. 106. She felt that his sitting so close 

to her, his anger, and his condescension were intimidation tactics. Tr. 107. 

Watson told Cassidy that she “did it again,” in sending the email. Tr. 109. He asked 

Cassidy if she realized what she had done with her email, and stated that he was tired of cleaning 

up her messes. Tr. 107. When she tried to answer him, Watson refused to let her talk. Tr. 107. 

Watson said that her email was on the G drive and that it was “very damning to us.” Tr. 108. He 

said that the email went to the lawyers, the gas operations, corporate, the engineers, and the 

surveyors.16 Tr. 110. He asked her if she was an advocate for the production and maintenance 

men and she felt that he needed her to respond that she wasn’t. Tr. 108. Watson mentioned the 

fatality and asked her if she thought that they were doing something to prevent it from happening 

14 A spinner is when the expander on the bolt doesn’t “catch,” or the glue didn’t do its job 

and the machine keeps spinning the bolt. Tr. 96. When that happens, an employee should put in 

another bolt right next to it, but not everyone does so. Tr. 96-97. 

15 Hilk described Watson as raising his voice at Cassidy, but not yelling at her. Tr. 291. 

16 Cassidy had not sent the email to any of these people. Tr. 80-86. 

43 FMSHRC Page 430
again. Tr. 108. Watson said that Cassidy was undermining management, and she replied she did 

not understand that accusation since she was a member of management. Tr. 109. 

Hilk testified that she found the November email unprofessional because it was sent to 

numerous people and because of the timing after the fatality. Tr. 289-290, 312-314, 318. She also 

felt that the email was unprofessional because it did not include Knipple, even though Knipple 

did not have control over the roof control plan at Enlow Fork, and because it was not a 

productive way to get an answer, even though Cassidy received a prompt answer from Barr and 

Blumetti. Tr. 311. Hilk also testified that Cassidy was not disciplined as a result of the email. Tr. 

293. 

Cassidy estimated that the meeting lasted for approximately 30 minutes. Tr. 111. At the 

end of the meeting, Watson said, “now you can talk.” Tr. 111. Cassidy explained that people had 

questions and they did not know to whom they should ask these questions. Tr. 111. At the end of 

the meeting, Watson asked Cassidy, “you know what I want to hear, right?” Tr. 113. Cassidy 

responded that she would tell him what he wants to hear, that she would “never send an email to 

any of you as long as I live ever again.” Tr. 113. He responded that “that’s exactly what I want to 

hear.” Tr. 113. After the meeting, Cassidy felt embarrassed because she did not feel that she had 

done anything wrong. Tr. 113. She also felt that she was not undermining management because 

she was management and was just asking questions. Tr. 114. 

The December 12, 2019 Incident: 

Knipple was Cassidy’s shift foreman, which is usually her immediate supervisor. Tr. 115. 

He served in this capacity since March 2018. Tr. 115. She recalled that the first time she met him 

was during a typical Tuesday afternoon group meeting. Tr. 115. She noticed someone that she 

did not know among the 16-18 people gathered so she attempted to introduce herself. Tr. 116. 

Knipple did not respond to Cassidy. Tr. 115-116. He got close to the table and leaned in more, so 

Cassidy tried again, saying, “Hello, who are you?” Tr. 116. Knipple again did not respond, so 

Cassy tried a third time, saying, “Hello, what is your name?” Tr. 116. At that point, Knipple 

“spun around to his right, which is where I was standing and he didn’t even have eye contact, 

and said, ‘I don’t talk to women,’ and went back.” Tr. 116. The room erupted in laughter at this 

response to her.17 Tr. 116. Cassidy was the only woman in the room, which in her experience 

was quite common. Tr. 117. 

On the midnight shift on December 12, 2019, Cassidy was sitting at the foreman’s table 

with six other foremen filling out her examination paperwork when she saw Tim Domico go into 

the shift foreman’s office. Tr. 118. When Knipple came out of the office, Cassidy asked him 

where Domico was, and he responded that Domico was in his office. Tr. 119. Cassidy asked why 

he was there, and Knipple responded that Domico would be construction foreman. Tr. 119. 

Cassidy inquired why he was construction foreman and not her. Tr. 119. Knipple responded that 

she was going to G2 because she was good on section. Tr. 119. Cassidy replied that she was 

good at everything she does, and Knipple responded that he needed her on section. Tr. 119. 

17 Knipple testified at hearing and this evidence was unrebutted. 

43 FMSHRC Page 431
The construction foreman serves as the second person in charge of the shift, and Cassidy 

felt she should have been chosen based on her experience. Tr. 123. Domico had not been to the 

Archer Portal for several months, and that portal had gone through a lot of construction, and 

Cassidy had more coal mining and foreman experience than Domico, so Cassidy believed that 

she knew the job better than Domico. Tr. 123-124. Cassidy testified that it appeared that Knipple 

“went out of his way to pull Domico from Pleasant Grove Portal to bring him over to Archer 

when he already had someone that could do that, and that definitely would have been me.” Tr. 

124. Cassidy also had safety concerns about Domico being assigned to the Archer Portal because 

it had approximately 40 people spread out working on it, and Domico was less experienced. Tr. 

124-125. 

Cassidy asked for a further explanation of why she was again not chosen to be 

construction foreman. Tr. 119. Cassidy testified that Knipple never allowed her to be in a 

construction or shift foreman position, even though other shift foremen assigned her to those 

positions. Tr. 122. She had asked him seven previous times in private about this issue, and he 

never provided her a reason. Tr. 122. Cassidy described the conversation as loud, but testified 

that she did not use any obscene language, call him any names, make any physical gestures at 

him, or slam her hand on the table. Tr. 120-121. At the time, she needed surgery on her left 

shoulder and she was holding a pen in her right hand, so many of these things would have been 

impossible. Tr. 121. Cassidy remained seated throughout the entire conversation. Tr. 121. 

However, Cassidy admitted at hearing that her yelling at Knipple was unprofessional. Tr. 155. 

Following the conversation, Cassidy went to the G2 section on that shift, where she did the work 

that was assigned to her. Tr. 127. 

Knipple testified that Cassidy had screamed at him concerning his selection of foremen, 

and that she would not calm down. Tr. 355-356. He described the incident as “humiliating.” Tr. 

356. Knipple testified that he had never been spoken to in that manner by any of his foremen. Tr. 

357-358. Knipple wrote up the incident to Koffler and Koffler took it to Human Resources. Tr. 

358. Knipple said that a year after the incident, miners beneath him are still making fun of him 

and making comments about it. Tr. 358. 

Cassidy described such altercations at the mine as “a regular occurrence.” Tr. 127-128, 

167. In her years of experience at Enlow Fork, other miners have had similar altercations with 

foremen and supervisors and she was not aware of any being suspended or disciplined as a result. 

Tr. 128, 130. She described the mine as having a lot of “screaming and yelling.” Tr. 128. Cassidy 

testified that it was common from management to let incidents like this go without further 

discipline. Tr. 129. She recalled an instance when she was at the Sparta Portal and Blumetti, who 

was section coordinator, would “pounce on me on day shift when I came outside.” Tr. 129. She 

was not aware of Blumetti ever being disciplined for these actions.18 Tr. 129. In one of her first 

experiences at the mine, she heard a door slam down the hallway and a desk and chair going 

18 Cassidy had heard from other miners that Blumetti was told that if he yelled at a miner 

one more time, he would be gone. Tr. 187. However, there were several instances of him yelling 

after the supposed warning, and nothing ever happened. Tr. 187. 

43 FMSHRC Page 432
across the room. Tr. 130. She described the stresses of production and constant demands leading 

to this environment. Tr. 131. Hilk described the mine as a stressful environment because of the 

conditions, long hours, and safety concerns. Tr. 266. 

Cassidy denied that she was trying to embarrass Knipple in front of his peers. Tr. 168, 

186. During the hearing, Respondent’s counsel repeatedly asked Cassidy if she had 

“emasculated” Knipple, which Cassidy denied. Tr. 198. Respondent’s counsel further suggested 

that “even though it is your perspective you didn’t do that, you would agree that it had that effect 

on him in the mine, didn’t it?” Tr. 198. 

The December 19, 2019 Meeting and Cassidy’s Suspension: 

Koontz testified that he first heard about the incident when a foreman named Bill Bentz19

approached him and told him about it. Tr. 214-215, 233. Koontz testified that Bentz had 

described it as the worst that he had ever seen someone talk to a superior at Consol, and relayed 

what he had witnessed to him. Tr. 214-216. Koontz asked Bentz to write down the details of the 

incident and he would address it. Tr. 216. Koontz then went to Hilk and said he wanted to start 

an investigation into the incident and wanted everything documented. Tr. 216-217. He told her to 

interview everyone who was present. Tr. 235. 

Hilk testified that she first heard about the incident between Cassidy and Knipple when 

Koontz told her about it. Tr. 295, 324. Shortly after, Bentz came and told Hilk about the incident. 

Tr. 296. Bentz told her that Cassidy started screaming at Knipple about the fact that he had 

assigned another supervisor to a role for which she felt she was more qualified. Tr. 296. Hilk 

testified that Bentz told her that Cassidy was yelling and pointing at Knipple. Tr. 296. 

After Hilk recorded Bentz’s account, she went to speak to Knipple. Tr. 297. Knipple said, 

“that’s Barb being Barb,” and Hilk told him that it was unacceptable. Tr. 297. Hilk asked 

Knipple for his firsthand account and he relayed it to her. Tr. 297. During the course of her 

investigation, Hilk only included one written statement in the investigative file, and it was from 

Knipple. Tr. 324. She also received a verbal account from Bentz. Tr. 324. Hilk asked Bentz to 

provide her a record of what occurred and he turned in a typed copy. Tr. 324. Hilk asked Bentz 

to hand write the statement, and she does not recall ever receiving it back. Tr. 324. Knipple 

submitted a typed statement because he was concerned about his handwriting. Tr. 324-325. 

Koontz testified that he was not certain how many statements were actually collected, 

because he never reviewed them. Tr. 236. He testified that he “actually talked to some of the 

other people that were in the room, that were down the hallway, and there were some hourly 

people that I remember that came to talk to me that asked me what was going on that week.” Tr. 

236. However, he did not document any of those conversations. Tr. 236-237. He was uncertain if 

there were any statements beyond Knipple’s. Tr. 237. Koontz never spoke to Cassidy about the 

incident. Tr. 238. He testified that he believed that Human Resources talked to Cassidy, but did 

19 The transcript alternates between the name Bill Bentz and Bill Binns. For consistency, 

the name Bill Bentz will be used throughout. 

43 FMSHRC Page 433
not know if that was included in the file. Tr. 238. Hilk testified that she did not speak to Cassidy 

about the incident until the December 19th meeting when they had the suspension letter in hand 

because Cassidy was on vacation. Tr. 297. Hilk contacted Cassidy twice during her vacation, but 

it was in reference to signing an ethics form. Tr. 329. During those conversations, she did not 

mention the investigation. Tr. 330. 

Koontz testified that he never read any statements, and relied only on his verbal 

conversation with Bentz and discussions with the Human Resources group. Tr. 239. Based on 

what Bentz and others reported, there was no physical contact between Knipple and Cassidy. Tr. 

234. There were no allegations that Cassidy used profanities or called Knipple any names. Tr. 

234. 

A few days after the incident, Koontz went to talk with Knipple because “some of the 

guys underground were saying that Dave got profanity slapped by Barb, like using that 

terminology.”20 Tr. 218. Koontz had heard that Knipple was very embarrassed and was 

struggling with what had happened. Tr. 218. 

There were four people involved in the decision to suspend Cassidy: Superintendent Josh 

Koontz, Vice President of Operations Eric Schubel, Human Resources Supervisor Tina Hilk, and 

Director of Human Resources Erica Fisher. Tr. 221-222, 253. Koontz had a series of 

conversations with Schubel, with Schubel telling Koontz to gather all the facts and details related 

to the Knipple incident. Tr. 254. Koontz in turn delegated that responsibility to Hilk. Tr. 254. 

Hilk sent to Schubel or Fisher all the information, but Koontz was not certain what was included. 

Tr. 255. Koontz couldn’t recall if anyone spoke to Cassidy, but said that “all stories aligned. It 

was the same story that I heard from that morning and, you know, that is the direction we went.” 

Tr. 255. When Koontz first heard what happened, he wanted to terminate Cassidy, but since she 

had never been suspended before, it was decided instead that she would receive a 10-day 

suspension. Tr. 222. 

After the incident with Knipple, Cassidy worked one more shift and then went on 

vacation for 19 days, until January 2, 2020. Tr. 133. In the days after the incident, no one from 

management told Cassidy that there was an investigation. Tr. 131. Hilk called Cassidy at home 

the following Monday and told her to report to work for day shift on January 2. Tr. 132. Cassidy 

was scheduled to go in at midnight that night and asked why she was being switched. Tr. 132. 

Hilk responded that there would be a meeting about what happened with Knipple. Tr. 132. 

Cassidy asked if she would still be working the midnight shift that evening, and Hilk replied that 

she would and told her to be dressed and ready for work. Tr. 132. 

The following day, Hilk called Cassidy and told her that she had not filled out the code of 

ethics form that is required by every foreman. Tr. 132. Cassidy explained that she had tried to do 

so on the computer, but no one had been able to download the document. Tr. 132. Hilk told her 

that she needed her to come in to fill out a hard copy, and Cassidy replied that she would be there 

20 In his testimony, Koontz inserted the word “profanity” in place of the profanity that 

miners were using to mock Knipple. 

43 FMSHRC Page 434
on Thursday to pick up the Christmas ham that Consol distributed to employees. Tr. 132. Hilk 

responded that that would be alright. Tr. 133. Hilk never stated that there would be any 

discipline. Tr. 134. 

Cassidy returned to the mine on December 20, 2019, to pick up her Christmas ham and 

fill out the ethics form. Tr. 135. Cassidy went to the warehouse, and Hilk told her to go upstairs 

to fill out the ethics form. Tr. 136. After Cassidy signed the form, Hilk left the room and said that 

she would be right back with Koontz. Tr. 136. Cassidy replied that she thought that meeting 

would not be happening until January 2, but Hilk insisted that they would be having the meeting 

at that moment. Tr. 136. Cassidy stated that she was not prepared for the meeting and that she 

had somewhere else she had to be very soon. Tr. 136-137. 

Hilk returned with Koontz and Watson. Tr. 137. Koontz read Cassidy the suspension 

letter, which first discussed the September email and subsequent meeting, then discussed the 

November email and subsequent meeting, and then the December incident with Knipple. Tr. 137, 

145; Ex. S-9. When Cassidy arrived at the meeting on December 19, 2019, the decision to 

suspend her had already been made. Tr. 330. 

Cassidy described being in shock that she was being suspended for the two emails and for 

yelling at Knipple. Tr. 137; Ex. S-9. Koontz stated that he had things going on at home, things at 

the mine, and the fatality to deal with, and that he did not have to deal with Cassidy. Tr. 137-138. 

He also told Cassidy that he knew that she was calling the state or MSHA about situations at the 

mine, and Cassidy replied that she had never done that. Tr. 138. He replied that “I know it’s you, 

I just can’t prove it.”21 Tr. 138. He said that his boss wanted him to terminate Cassidy, but that 

he wanted to give her one more chance. Tr. 138. 

The suspension letter stated in full: 

Dear Mrs. Cassidy, 

On September 27, 2019, you met with Scott Watson, Assistant Superintendent, 

Mike Koffler, General Mine Foreman, and Tina Hilk, Human Resources 

Supervisor regarding an email you sent members on our management team 

regarding the ride situations underground. During that conversation you were told 

the appropriate means of which to address any concerns and professionalism was 

discussed. 

On November 18, 2019 you again met with Scott Watson and Tina Hilk regarding 

another email you had sent to various extended members of the management 

team. You were again told of the appropriate means of which to address any 

concerns and expectations were clearly defined as to your role on the management 

team. 

21 Hilk’s contemporaneous notes of the meeting corroborates that Koontz made this 

accusation, stating, “Josh said she has gone to the state...” Ex. R-X. 

43 FMSHRC Page 435
On December 12, 2019, you behaved in a disrespectful and disruptive manner 

towards your shift foreman while he was attempting to explain to you your work 

assignment. Specifically, you slammed your hand on the table, pointed your 

finger and screamed at him. He cautioned you to calm down, yet you continued to 

scream so loudly that it was disruptive to everyone in the area. 

By this letter, I will also clarify my expectations of you. First, as a member of 

management, you are expected to abide by the same standards that we hold our 

hourly employees. Second, you must present any justified criticisms or comments 

in a sensitive, courteous and respectful manner. This means focusing on becoming 

a more professional team player. Professionalism is an essential component of 

your position in all aspects of your work with others. 

In summary, I always expect you to act professionally, to work well with your 

coworkers, your supervisor and myself and to appropriately represent mine 

management. 

Your disrespectful and disruptive conduct will not be tolerated. To impress on 

you the seriousness of your misconduct, you are being placed on a ten (10) day 

unpaid suspension, effective January 2, 2020. You are to report back to work on 

January 16, 2020, for your regularly scheduled shift. Your pay will be reduced by 

$2132.52 on your paychecks dated January 17, 2020 and January 31, 2020. Be 

advised that any further misconduct will result in disciplinary action up to and 

including discharge. 

Regards, 

Josh Koontz 

General Superintendent 

Ex. S-9. 

Though Koontz signed the suspension letter, he did not write it. Rather, Hilk and the 

human resources team wrote it. Tr. 211-212, 241-242; Ex. S-9. Koontz testified that he 

suspended her because of the outburst she had with Knipple, including “the mannerisms and 

things that happened that night.” Tr. 212. Koontz explained in testimony that her behavior was in 

violation of Employee Conduct Rule Number 4, which covers insubordination.22 Tr. 213; Ex. 

R-H. However, nowhere in the suspension letter does it state that Cassidy violated employee 

conduct rule 4 or anything about insubordination. Tr. 250. Hilk testified that the reason for the 

suspension was not based on Cassidy allegedly slamming her hand, but only the way she had 

spoken to her supervisor. Tr. 328-329. 

22 Rule 4 states in full, “Insubordination (refusal or failure to perform work assigned or to 

comply with supervisory direction) or use of profane, obscene, abusive, or threatening language 

or conduct toward subordinates, fellow employees, or officials of the company.” Ex. R-H. 

43 FMSHRC Page 436
Koontz testified he was aware of the bolt email, but not of the other one concerning rides. 

Tr. 242. However, in the suspension letter that Koontz signed, read to Cassidy, and presented to 

her, it referred to this email. Tr. 243. When Koontz read Cassidy’s email concerning the ride 

situation, he did not think it was unprofessional. Tr. 247. Similarly, he did not believe that the 

roof bolt email was unprofessional. Tr. 247. Koontz acknowledged that the suspension letter 

referenced the emails as unprofessional, but Koontz said that Human Resources decided to 

include references to the emails. Tr. 249. There is no rule preventing someone from emailing a 

superior about these issues. Tr. 247. 

Koontz testified that the reason for the suspension was reflected in the contents of the 

letter, but insisted that it was only because of what had transpired between Cassidy and Knipple. 

Tr. 219-220. He further testified that the two meetings referenced in the letter were in no way 

connected to the suspension. Tr. 220-221. Hilk also testified that Cassidy’s suspension was only 

because of the incident with Knipple, and not because of her September or November emails. Tr. 

298-301. She testified that she included the references to the two meetings that Cassidy had 

concerning the emails because she felt that “it was important to show that Barbara had had [sic] 

recently been counseled on unprofessionalism by sending the emails.” Tr. 301. 

Hilk testified that she based the 10-day suspension on past discipline for an incident 

similar to Cassidy’s. Tr. 302. Cassidy was originally going to receive a three-day suspension, but 

Hilk testified that she changed it based on a single disciplinary letter that she found in another 

file. Tr. 338-339. Hilk wrote to Erica Fisher that she happened to come across a 10-day 

suspension from 2014 for another employee in the personnel files, and that Cassidy should 

receive a similar suspension. Tr. 332-333; Ex. R-R. However, at hearing, Hilk stated that she did 

not find it by chance, but knew it existed and searched for it. Tr. 332-333. The 2014 incident was 

prior to Hilk working at Enlow Fork and she had no personal knowledge of the incident. Tr. 333-

334. The 2014 letter states that the employee violated Employee Conduct Rule Number 4. Tr. 

334; Ex. R-R. 

Koontz asked Cassidy if she had anything to say, and Cassidy hung her head and shook it 

to indicate that she did not. Tr. 138. Hilk encouraged Cassidy to respond, and Cassidy said, “you 

know I am not a slug. You know I give you 150 percent every day. I am an employee who 

cares.” Tr. 139. Koontz replied that no one was questioning her abilities, but how she went about 

her work. Tr. 139. Cassidy tried to explain why Domico should not have been in charge and the 

reasons that she yelled at Knipple, but Koontz responded, “there you go undermining 

management again.” Tr. 140. After being told twice to “just sign” the letter, Cassidy signed it. 

Tr. 139-140. 

After Koontz left the room, Cassidy attempted to correct some of the errors in the letter 

with Hilk. Tr. 139. Among the errors was an incorrect date of the September meeting, which 

stated that the email meeting took place on September 27, however it actually took place on 

September 17. Tr. 143-144; Ex. S-9. Additionally, Cassidy stated that she did not slam her hand 

or point her finger at Knipple. Tr. 139. Hilk responded that “we have witnesses.” Tr. 139. 

Cassidy replied again that she did not do those things, but she was not aware that she needed 

witnesses at that moment. Tr. 139. Cassidy also testified that while she may have raised her 

43 FMSHRC Page 437
voice so that it was yelling, she was not screaming. Tr. 146. She also stated that there were few 

people around and that her voice was not disruptive. Tr. 146-147. The letter stated that Cassidy 

was not professional. Tr. 147. 

Neither Koontz nor anyone else in the investigation ever interviewed Cassidy about the 

incident, but testified that Cassidy had an opportunity to present her side during the suspension 

meeting after the letter had been printed and read to her. Tr. 240-241, 325. Hilk told Cassidy that 

if she had anything to say, now was the time, but testified that Cassidy did not defend herself. Tr. 

325. However, Hilk’s contemporaneous notes of the meeting state that Cassidy “disputed the fact 

that she slammed her hand and pointed at him.” Tr. 325-327; Ex. R-X. Hilk testified that she 

disregarded the statement because she had two eyewitnesses that said Cassidy did those things. 

Tr. 327. 

After the meeting, Cassidy was embarrassed and ashamed and described having suicidal 

thoughts. Tr. 150. The suspension was described as being for 10 days, but Cassidy said that it 

was actually for 14 days. Tr. 151. When Cassidy told Hilk about this discrepancy, Hilk 

responded that the 10 days was not inclusive of weekends. Tr. 151. Cassidy replied that she 

worked weekends, and that as a foreman she was only entitled to one weekend off per month. Tr. 

151. Cassidy was not paid for the 14 days that she was suspended. Tr. 151-152. 

 

CONTENTIONS OF THE PARTIES 

 Following the hearing, the Complainant and Respondent submitted briefs and reply briefs 

in support of their respective positions. The Secretary argues that Cassidy engaged in protected 

activity when she emailed safety concerns to upper management, and that Respondent 

discriminated against Cassidy when it counseled her after each of the emails and then suspended 

her for ten days without pay. The Secretary argues that the meetings were not to address the 

concerns in the emails, but rather were disciplinary counseling session, which is why the 

meetings were referenced in the suspension letter. Sec’y Brief at 20. 

The Secretary further argues that all the indicia of discriminatory motivation were 

present. Much of upper management was aware of Cassidy’s emails either from when she sent 

the emails to them or by reading the suspension letter. The Respondent showed animus toward 

the protected activity by referencing the emails in the suspension letter, by counseling her after 

each email, by conducting a “sham investigation of the Knipple incident,” and by holding a 

surprise suspension meeting. Id. at 21-25. Respondent further showed animus when the mine 

superintendent accused Cassidy of contacting state or federal authorities about safety issues. 

Sec’y Reply Brief at 7-8. The Secretary argues that there was a close proximity in time between 

Cassidy’s protected activities and the suspension, with the emails being sent in September and 

November, and the suspension in December. Cassidy further suffered disparate treatment since 

verbal altercations at the mine were not uncommon and rarely led to disciplinary action. Lastly, 

Secretary argues that the Respondent failed to rebut the prima facie case by proving that its 

adverse actions were in no way motivated by Cassidy’s protected activity. 

43 FMSHRC Page 438
As remedy, the Secretary argues that this Court should award back-pay wages for the tenday suspension, plus interest, as well as lost employer contributions to Cassidy’s 401(k) account. 

Furthermore, the Secretary has proposed a civil penalty of $15,000 for the violations in this case. 

The Respondent argues that Cassidy did not engage in any protected activity and suffered 

no discrimination. In its brief, it argues that Cassidy “screamed at and emasculated her 

supervisor in front of her co-workers,” which amounted to a “verbal assault,” and was suspended 

as a result. Resp. Brief at 1-2. Respondent argues that the ride and bolt issues that Cassidy 

included in her emails were not safety issues because they were not violations of law. It 

described Cassidy’s request for help in her September email as her “frantically shouting,” and 

that she had an “unhinged tone” in the November email. Resp. Reply Brief at 1-2. Furthermore, 

issues that Cassidy raised only involved miner convenience, and never implicated a safety 

concern. Respondent contends that it suspended Cassidy solely as the result of the incident with 

Assistant Mine Foreman Knipple. 

ANALYSIS 

Section 105(c)(1) of the Mine Act provides that a miner cannot be discharged, 

discriminated against, or otherwise interfered with in the exercise of her statutory rights because 

she “has filed or made a complaint under or related to this Act, including a complaint notifying 

the operator or the operator’s agent, or the representative of the miners at the coal or other mine 

of an alleged danger or safety or health violation in a coal or other mine,” or “because of the 

exercise by such miner...of any statutory right afforded by this Act.” 30 U.S.C. 815(c)(1). 

In order to establish a prima facie case of discrimination under Section 105(c)(1), the 

Secretary on behalf of a complaining miner must produce evidence sufficient to support a 

conclusion that the miner (1) engaged in protected activity, (2) suffered an adverse action, and 

(3) the adverse action was motivated at least partially by that activity. See Turner v. Nat 7 

Cement Co. of California, 33 FMSHRC 1059, 1064 (May 2011); Sec'y of Labor on behalf 

of Pasula v. Consol 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, 817-18 (Apr. 1981). 

The operator may rebut the prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no part motivated by the protected activity. Driessen v. 

Nev. Goldfields, Inc., 20 FMSHRC 324, 328-29 (Apr. 1998); Robinette, 3 FMSHRC at 818 n.20. 

The operator may also defend affirmatively by proving that the adverse action was in part 

motivated by unprotected activity of the miner, and that it would have taken the adverse action 

based on the unprotected activity alone. Driessen, 20 FMSHRC at 328-29 (citing Robinette, 3 

FMSHRC at 817; Pasula, 2 FMSHRC at 2799-2800). The operator bears the burden of proof for 

the affirmative defense. Pasula, 2 FMSHRC at 2800. 

I. Protected Activity: 

The evidence presented in this case shows that Barbara Cassidy engaged in multiple 

protected activities. As will be discussed below, both of Cassidy’s emails constituted safety 

43 FMSHRC Page 439
complaints, which the Commission has described as “paradigmatic ‘protected activity’ within the 

meaning of section 105(c)” Sec’y of Labor obo Jeremy Jones v. Kingston Mining, Inc., 37 

FMSHRC 2519, n. 3 (Nov. 2015). Additionally, the accusations that Cassidy made reports to 

MSHA or the state—whether or not those complaints were actually made—constitute protected 

activity. Lastly, the interaction with Knipple, though loud and perhaps tinged with anger or hurt, 

involved safety concerns and therefore also constitutes a protected activity. 

On September 13, 2019, Cassidy sent an email concerning the availability of rides to 

Mine Foreman Michael Koffler.23 Tr. 34. She sent the email after several fire bosses had come to 

her and complained that the lack of rides impacted their ability to conduct exams and correct 

violations observed during their exams. Tr. 189. Furthermore, the ride shortage meant that the 

Two South Section had only one emergency ride for two separate working crews, which would 

pose a significant problem if the need arose to quickly evacuate sick or injured miners in an 

emergency. Tr. 40-42, 46-47. These shortages violated Consol’s internal policies. Tr. 64-65. In 

the email, Cassidy referred to the ride shortage as a “serious” problem, and explained that as a 

result, “exams are not being done to the standard that they should be done.” Ex. R-1. Cassidy 

believed the email raised safety concerns because if the fire bosses could not get to a violation, 

the violation could not be corrected. Tr. 43. Indeed, the final line of the email, which stated, “WE 

NEED TO RECTIFY THIS. WE NEED HELP!! HELP!! HELP!! PLEASE!!” was a plea for 

help due to an ongoing safety issue. Ex. R-1. 

Others in management viewed the September email as one that raised safety issues. 

Though Human Resources Supervisor Tina Hilk testified that she felt the last line that plead for 

help was “unprofessional,” she also stated that due to her lack of knowledge of mine safety, the 

only reason she knew Cassidy’s email concerned safety was precisely because of the last line. Tr. 

286, 303-304. In the meeting following the email, Hilk acknowledged the safety issues raised in 

the email and called the situation “alarming.” Tr. 59. Assistant Superintendent Watson also 

viewed Cassidy’s email as encompassing safety and said as much when he told Cassidy that he 

viewed her email as implying that the mine was unsafe. Tr. 69. 

Consol repeatedly told Cassidy that it had an “open door policy,” but this appeared to be 

little more than an empty slogan. Tr. 69, 94, 230, 287. Cassidy tried multiple ways of relaying 

the problems associated with the ride shortages. She had sent an email seven months earlier 

making the same safety complaint, but upper management did nothing except provide Cassidy 

assurances that they were looking into the matter. Tr. 50, 195. After the problem persisted and 

Cassidy continued to receive safety complaints from the fire bosses, she went to Koffler’s office 

to discuss the issue on August 28, 2019. Tr. 35. Koffler was not in his office, so Cassidy returned 

the following day. Tr. 35. He was not there again, so she left a note stating that she wanted to 

talk to him about the ride situation and asked that he email her. Tr. 35-36. After a week of not 

receiving a response, Cassidy tried stopping by his office again, but to no avail. Tr. 36. So, 

Cassidy went to the only spot at the mine where she could get cell phone reception and called 

Koffler and left him a voicemail indicating that she needed to talk to him about the ride situation. 

23 This Court found Cassidy to be an honest and forthright witness, even when admitting 

her own shortcomings. The testimony was consistent and credible. 

43 FMSHRC Page 440
Tr. 36. After a week without response, Cassidy sent the email at issue to Koffler. Tr. 36-37. 

Then, after waiting three days without any response, she forwarded the email to Superintendent 

Koontz and Assistant Superintendent Watson. Tr. 37, 53. 

Respondent argues that the “availability of rides is a matter of convenience and was not a 

safety or legal issue.” Resp. Brief at 4. In support of this position, Respondent significantly 

misstates the record.24 Respondent cites to page 42 of the transcript in stating that it was simply a 

matter of convenience, but this page states nothing of the sort. In fact, Cassidy’s testimony 

captured on page 42 concerned the necessity for emergency rides, stating, “I asked them what 

about the guy that gets hurt, how do you get them out of there. That is always a concern of mine 

because I’ve been in a lot of emergency situations.” Tr. 42. This testimony is a paradigmatic 

24 At hearing, Respondent’s counsel repeatedly questioned Cassidy about the shortage of 

rides and whether it was a matter of convenience, and in each answer she stated that it was not. 

Counsel cannot cite to this page in the transcript for the affirmative proposition that the rides 

were a matter of convenience when the witness’ answers state the exact opposite. 

Q. Okay. In fact, the availability of rides was a matter of convenience for you, 

correct? 

A. No, sir. 

Q. It was more convenient for you to do your job and for others to do their job in 

the mine if there were more rides available; isn't that right? 

A. It would be necessity when it takes three hours to walk to their job site 

carrying tools. That is not convenience. That is a necessity. 

Tr. 174. 

Q. Having a ride just helps you to do your job more quickly, correct? 

A. No, not necessarily. 

Q. Well, it gives you the convenience of getting a ride as opposed to walking a 

pre-shift exam? 

A. Is that a question? 

Q. That is a question. Isn't that correct? It gives you the convenience of getting a 

ride as opposed to having to walk your entire pre-shift exam? 

A. No, sir. Again, that's not true. 

Q. Having more rides available allows you to -- allows you additional time to be 

able to perform your pre-shift exam, correct? 

A. No, sir. I wouldn't say that either. Most of what we do is walking. The belt 

lines, you can't do that with a ride. So, to be dropped off so you are there when 

your exam starts, yes. To have a ride for that, it doesn't -- a ride doesn't help me. 

[It] hurts me. I don't need the ride. 

Tr. 175. 

43 FMSHRC Page 441
safety concern.25 Similarly, Respondent misstates the meaning of Cassidy’s testimony on page 

69, by saying she “admitted that she was not communicating that the mine was ‘unsafe;’ rather, 

she used her email to get their attention.” Resp. Brief at 5. Cassidy’s testimony captured on page 

69, as well as the pages that preceded it and the email itself, explicitly stated that she viewed the 

ride shortage as a safety concern. Tr. 34-35, 40-41, 44-48, 53-54, 189, 195; Ex. R-1. On page 69, 

Cassidy was simply stating that she denied Watson’s statement that the email implied that the 

mine was unsafe. There is a vast difference between stating that the email did not imply that the 

mine was unsafe and concluding that there were no safety concerns raised. Furthermore, Cassidy 

did not testify that “she used her email to get their attention,” Resp. Brief at 5, but rather to get 

their attention about “what is going on.” Tr. 69. Respondent selectively quotes Cassidy to portray 

her as an attention-seeker, when in fact she was trying to bring attention to a safety problem, 

which is in the nature of a safety complaint. 

Respondent also attempts to argue that Cassidy’s email was not professional because the 

final line pleading for help was in all capital letters, which Respondent characterizes as her 

“yell[ing] at the recipients,” Resp. Brief at 5, or that she “frantically shouted.” Resp. Reply Brief

at 2. However, capital letters do not constitute a “yell” and this Court is not going to hold that a 

miner’s plea for help in addressing a serious safety problem is nullified because they used too 

many capital letters. 

Ultimately, Respondent misunderstands the law governing miner health and safety when 

it repeatedly argues that because the ride shortage did not violate the Mine Act or regulations, 

then it cannot constitute a safety complaint. Resp. Brief at 8. The law does not require that a 

health or safety complaint involve a violation of a mandatory safety standard or other law, and 

the Commission has never required such a narrow reading.26 The Commission has made it clear 

25 This Court gives Respondent the benefit of the doubt that it did not purposely misstate 

the record and instead took Cassidy’s testimony concerning the section of her email with 

proposed solutions out of context. In this specific context, Cassidy stated, “I wasn’t looking for 

an answer. I was just trying to spark some interest, maybe.” Tr. 41-42. 

26 Commission ALJs routinely find safety complaints concerning issues that do not 

violate the Mine Act or regulations to constitute protected activity. See e.g. SOL obo George M 

Scoles v. Harrison County Coal Co., 40 FMSHRC 1393 (Sept. 20, 2018); aff’d Harrison County 

Coal Co. v. FMSHRC,790 Fed. Appx. 210 (D.C. Cir. 2019) (miner’s complaint to supervisor 

about harassment and complaint to management about assault constituted safety complaints.); 

SOL obo Aaron Lee Anderson v. A&G Coal Corp. and Chestnut Land Holdings, LLC, 39 

FMSHRC 165, 173 (Jan. 19, 2017) (truck driver’s comments over radio about dust in pit and 

request for water truck constituted protected activity.) remanded on other grounds, 39 FMSHRC 

315 (Feb. 2017); SOL obo Charles Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 1922 

(Aug. 2016) (Commission rejected Respondent’s argument that miner’s ventilation concerns 

were not protected because the “comments were nothing more than discussions between mine 

managers trying to address problems and were motivated by a desire to improve production, not 

to ensure safe working conditions.”); MSHA obo Richard B. Harrison v. Consolidation Coal Co., 

(continued...) 

43 FMSHRC Page 442
that “the Mine Act grants miners the right to complain of a safety or health danger or violation.” 

Bryce Dolan v. F & E Erection Co., 22 FMSHRC 171, 177 (Feb. 2000). In discussing whether a 

work refusal based upon a safety concern—a right not explicitly mentioned in Section 105—is 

protected activity under the Mine Act, the Commission and Courts have explained that there 

must be a subjective good faith belief by the miner of a hazardous condition. See Secretary of 

Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 812 (April 

1981); accord Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989). It would be contrary 

to the purpose of the Mine Act to circumscribe a miner’s right to make a safety complaint more 

than a miner’s right to engage in a work refusal. (See e.g. MSHA obo Sean Miller v. Savage 

Services Corporation, 37 FMSHRC 936, 946 (April 30, 2015). (The Court cited Robinette to find 

“that each of Miller's six safety complaints constituted protected activity because they were 

based on Miller's “good faith, reasonable belief in a hazardous condition.”) This is consistent 

with Congress’ intent that the scope of protected activity be broadly interpreted to “assure that 

miners will not be inhibited in any way in exercising any rights afforded by the legislation.” S. 

Rep. No. 181, 95th Cong., 1st Sess. 35-36 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 623-24 (1978). 

For similar reasons, Cassidy’s November 15, 2019 email constituted protected activity. 

Enlow Fork Mine had rib and roof control issues, which led to the death of a miner several 

months earlier when an enormous piece of coal crushed miner Tanner McFarland. Tr. 70-72. 

Cassidy described the mood among miners as them feeling that such an accident “could 

happen—that could happen to anyone...All of us felt that. It could happen to anyone at any time. 

And it was horrible. It was absolutely horrible.” Tr. 72. Multiple witnesses testified that, even 

several months after the death, it was a very sensitive and “very difficult time for everybody.”27

Tr. 224-225, 316, 318. It was in this context that the operator was preparing a number of changes 

to its roof and rib control plan to allow it to resume mining. Tr. 72-73, 224. 

26 (...continued) 

37 FMSHRC 1497, 1506-1507 (July 2, 2015) (miner’s complaint about bonus plan that he feared 

would diminish safety at the mine found to constitute protected activity.); Ronald E. Keim, III v. 

Cordero Mining LLC, 36 FMSHRC 963, 971 (April 16, 2014) (complaint about co-worker 

creating a hostile work environment that made it difficult for miner’s crew to safely perform 

their jobs was protected activity.); SOL obo Regald Robbins v. Alden Resources, LLC, 36 

FMSHRC 1927 (July 29, 2014) (miner’s comments about the need for 5-foot roof bolts 

constituted protected activity). 

27 This Court found all parties to be quite sincere in expressing their sorrow over the loss 

of Tanner McFarland. Miners belong to an ancient brotherhood of grief, their history steeped in 

disability, death, and disaster. This Court well recognizes that the death of a miner anywhere 

affects miners everywhere. 

 However, the very circumstances of this real grief at Enlow Fork would have made and 

did make Cassidy’s safety complaints all the more distressing and aggravating to the operator’s 

management team. 

43 FMSHRC Page 443
During this time, Cassidy and her crew were instructed to attend a training by the mine’s 

roof and rib bolt supplier and Cassidy was told by numerous supervisors that she and her crew 

must take the training seriously. Tr. 74-75. During the training, several of the miners on 

Cassidy’s crew asked questions about bolting, which the training representative was unable to 

answer. Tr. 75-80. Cassidy hoped to get answers to these questions concerning the safest type of 

bolts for the mine, but she did not know to whom she should direct them. Tr. 80-86; Ex. S-5. 

Therefore, she emailed them to several members of management. Id. 

Cassidy’s November 15, 2019 email clearly concerns safety issues. First, Cassidy 

references the training that she and her crew attended, and stated clearly that there were some 

concerns and questions that came up. Ex. S-5. These questions included asking why six-foot 

bolts were not going to be used instead of five-foot bolts, remarking that the six-foot bolts are 

stronger. Ex. S-5. Cassidy also mentioned that the new bolts have a different time requirement 

for setting in place, and that the stickers on the boxes distinguishing the different glues were too 

close in color and that miners had trouble telling them apart. Ex. S-5. Cassidy also raised 

questions and concerns regarding how the bolts were stored and whether a different bolting 

pattern would be more effective. Ex. S-5. Cassidy testified that she believed that the email 

concerned mine safety because a miner had recently died from being crushed by a chunk of coal 

and she was raising issues concerning stronger and more effective bolting. Tr. 92-93. This Court 

fully agrees. 

Respondent’s Counsel’s argument that “Cassidy’s challenges to the use of five inch bolts 

as compared to six inch bolts had nothing to do with safety and everything to do with 

convenience for her subordinate employees who wanted to avoid the hassle of using the five inch 

bolts” is not based in any evidence and shows a complete lack of understanding for the work that 

miners perform.28 Resp. Brief at 8. As discussed supra, Respondent’s counsel asked repeatedly at 

hearing whether the issue was more a matter of convenience, and Cassidy repeatedly explained 

the important safety reasons for which she had raised the issue. 

Respondent also raises, once again, the argument that Cassidy “never recorded a 

condition or violation related to the use of six-foot bolts as compared to five-foot bolts as part of 

her pre-shift responsibilities, because she did not consider it to be and, in fact it was not, a safety 

issue.” Resp. Brief at 9. This argument both misconstrues the legal requirements for protected 

activities and misunderstands what exam books are used for in the mine.29 Questions about a 

training at the mine would not be included in a pre-shift examination because a pre-shift 

examination record is not the appropriate place to ask questions. Tr. 188. The regulations have 

very specific requirements for what must be examined during a pre-shift exam and what must be 

28 The Respondent’s counsel incorrectly stated that the bolts in question were five inches 

long, rather than five feet long. 

29 With regard to Respondent’s narrow understanding of what constitutes safety 

complaints, see the discussion supra related to the September email. 

43 FMSHRC Page 444
recorded. See 30 CFR 75.360. If a miner has safety questions, it would be wholly inappropriate 

to record those questions in the examination book.30 

In addition to the two emails, Koontz’s accusations in the December 19, 2019 meeting 

that Cassidy had contacted the state or MSHA constituted a protected activity. Tr. 138; Ex. R-X. 

Cassidy denied that she had contacted MSHA, but Koontz replied “I know it’s you, I just can’t 

prove it.” Tr. 138. Whether Cassidy actually contacted MSHA is immaterial; if management 

believed that she had done so, then it constitutes protected activity under Section 105(c). MSHA 

Ex Rel. Stephen Smith, Donald Hansen, Thomas Smith and Patricia Anderson v. Stafford 

Construction Co., 5 FMSHRC 618, 621 (April 1983) (“discrimination against a miner based on a 

mistaken belief that he has engaged in protected activity also violates section 105(c)(1) of the 

Act.”); Elias Moses v. Whitley Development Corporation, 4 FMSHRC 1475, 1480 (Aug. 1982) 

(“Miners would be less likely to exercise their rights if no remedy existed for discriminatory 

action based on an operator's mistaken belief that a miner had exercised a protected right. Indeed, 

the adverse effect of such action might be even more debilitating than discrimination over 

actual protected activity.”); MSHA obo Chad Alex Green & William Donnie Smith v. D & C 

Mining Corp., 33 FMSHRC 243, 250 (Jan. 20, 2011) (“Although the Complainants may not have 

engaged in protected activity, it cannot be denied that the Respondent believed they did so...”). 

Lastly, Cassidy’s argument with Knipple concerning the choice of who would be the 

construction foreman on the shift included safety concerns and therefore was a protected activity. 

Cassidy testified that Tim Domico was less qualified to serve as construction foreman at the 

Archer Portal because he had less experience than her, and that there was a lot of construction 

since the last time he was at the Archer Portal, which meant that he may not be as familiar with 

the area. Tr. 123-125. Cassidy had more coal mining and foreman experience than Domico, and 

she believed he was being chosen for illegitimate reasons. Tr. 123-124. Cassidy testified that she 

was concerned about Domico’s abilities supervising 40 miners at that Portal. Tr. 124-125. The 

manner in which Cassidy raised these issues to Knipple is discussed below, but for purposes of 

this analysis, this Court finds that asking one’s supervisor why a less experienced foreman is 

being chosen implicates safety issues sufficiently to be considered protected activity under 

Section 105(c). 

II. Adverse Action: 

The Respondent does not contest that Cassidy suffered an adverse employment action. 

Cassidy was suspended without pay from January 02, 2020, until January 16, 2020. Ex. R-A. 

“Under the Mine Act the Commission has defined ‘adverse action’ to constitute ‘an action of 

commission or omission by the operator subjecting the affected miner to discipline or a detriment 

30 This Court presumes that the Respondent’s counsel is not purposefully misstating the 

record, but instead is simply not fully knowledgeable about the nature of mining and mine safety, 

which leads it to state in its brief that the proof that Cassidy did not consider her questions 

safety-related was because she did not record them in the pre-shift examination book. Resp. Brief

at 9. 

43 FMSHRC Page 445
in his employment relationship.’” MSHA obo Lawrence L. Pendley v. Highland Mining 

Company, 34 FMSHRC 1919, 1930 (Aug. 2012). 

The Secretary further argues that each of the meetings following the emails also 

constituted adverse employment actions. This Court agrees. Hilk described the meetings as 

disciplinary counseling sessions that were part of progressive discipline. Tr. 301, 306-307, 322; 

Ex. R-X. The meetings were then included in the suspension letter because Hilk “thought it was 

important to show that [Cassidy] had been recently counseled on unprofessionalism by sending 

the emails.” Tr. 301, 322. 

III. Discriminatory Motive: 

The Commission has acknowledged that it is often difficult to establish a motivational 

nexus between protected activity and the adverse action that is the subject of the complaint. Sec’y 

of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999). To establish 

the nexus, the Commission has identified the following indicia of discriminatory intent: 

(1) hostility or animus toward the protected activity, (2) knowledge of the protected activity, and 

(3) coincidence in time between the protected activity and the adverse action. Sec’y of Labor on 

behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The 

Commission has further considered the disparate treatment of the miner in analyzing the nexus 

requirement. 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). It is not necessary, 

however, to establish all four indications of discriminatory intent. For example, where there is 

knowledge of the protected activity and coincidence in time between the protected activity and 

the adverse action, a causal connection is supported. Sec’y of Labor, on behalf of Yero Pack v. 

Cimbar Performance Minerals, 34 FMSHRC 3304 (Dec. 2012). 

Though the Commission has noted that “direct evidence of actual discriminatory motive 

is rare,” this case constitutes one of those rare cases. See United Mine Workers of America obo 

Mark A. Franks & Ronald M. Hoy v. Emerald Coal Resources, LP, 36 FMSHRC 2088, 2096 

(Aug. 2014). Direct evidence of such discriminatory motive here is contained in several 

important documents submitted into evidence. First, the suspension letter lists three incidents—

the September 27 email, the November 18 email, and the December 12 argument—before 

imposing a suspension for lack of professionalism and misconduct. Ex. S-9. Therefore, in the 

very document that provided justification for the suspension, Respondent included and focused 

on Cassidy’s safety emails. 

Superintendent Koontz testified that the reason for the suspension was contained in the 

contents of the letter, but insisted that the first half of the letter should be ignored and that it was 

only because of the Knipple incident. Tr. 219-220. This Court found Koontz to be a less than 

credible witness, with much of his testimony being self-serving and contradicting Respondent’s 

own documents. Though Koontz did not author the suspension letter, he signed it and read it to 

Cassidy during the December 19, 2019 suspension meeting. Tr. 137, 145; Ex. S-9. In addition to 

discussing the two emails that Cassidy sent, Koontz also accused Cassidy of reporting safety 

issues to MSHA, stating, “I know it’s you, I just can’t prove it.” Tr. 138. This fact is 

corroborated by Hilk’s contemporaneous notes, which state, “Josh [Koontz] said she has gone to 

43 FMSHRC Page 446
the state.” Ex. R-X. Koontz was an experienced manager, having worked as an assistant 

superintendent and general superintendent for over four years at the time of this meeting with 

Cassidy, and it defies logic and belief that he did not understand that the inclusion in the 

suspension letter of these incidents indicates that they served as reasons for the suspension. Tr. 

207-208. 

Furthermore, Koontz had no first-hand knowledge of the Knipple incident and he neither 

conducted nor relied on anything that could be considered an investigation. Koontz described 

first hearing about the incident when Bentz approached him and told him what he witnessed. Tr. 

214-216, 233. Koontz then delegated to Hilk to conduct an investigation, interview everyone 

who was present, and document everything. Tr. 216-217, 235. However, Koontz testified that he 

never reviewed any of the statements collected and that he just talked with some of the people 

who witnessed the events, though he did not name any and documented nothing. Tr. 236-237, 

239. Koontz never spoke to Cassidy about the incident. Tr. 238. 

Koontz testified that the suspension was due to Cassidy violating Employee Conduct 

Rule Number 4, which covers insubordination. Tr. 213. However, neither this rule nor the word 

“insubordination” appears anywhere in the suspension letter. See Ex. S-9. Rule 4 defines 

“insubordination” as “refusal or failure to perform work assigned or to comply with supervisory 

direction,” however there was no allegation or evidence that Cassidy refused to perform work or 

comply with supervisory direction. In fact, following the argument with Knipple, Cassidy went 

to the G2 section as she was instructed to do and followed direction. Tr. 127. 

Though not under the definition of insubordination, Rule 4 also lists other conduct that is 

prohibited, including “use of profane, obscene, abusive, or threatening language or conduct 

toward subordinates, fellow employees, or officials of the company.” Ex. R-H. However, there 

were no allegations or evidence that Cassidy used any profanity or called Knipple any names or 

engaged in any of the conduct listed in Rule 4. Tr. 234. The only use of profanity in this case 

involved Koontz hearing that some of the other men in the mine were saying that Knipple “got 

profanity slapped by Barb.” Tr. 218. There is no evidence that any of these men were disciplined 

for engaging in profanity in violation of Rule 4. 

Hilk authored the suspension letter and similarly testified that the reason for the 

suspension was only because of the incident with Knipple and not the two emails she discussed 

in the letter. Tr. 273, 298-301. This Court found Hilk to be an evasive witness who repeatedly 

contradicted herself and the other evidence—much of which she authored—and used buzzwords 

like “professionalism” to distract from the explicit reasons she wrote for Cassidy’s suspension. 

She knew little to nothing about mining or mine safety and, despite having substantive 

involvement in making decisions concerning the discipline of miners, she seemed to be wholly 

ignorant of miners’ rights. 

Hilk was present at both meetings following Cassidy’s sending of the safety emails, as 

well as the suspension meeting, and she took contemporaneous notes at each, which were 

admitted into evidence. Tr. 112, 326. Hilk testified that Cassidy was in no way disciplined for 

raising safety concerns in her November email. Tr. 293. Hilk stated that what occurred in this 

meeting was Watson educating Cassidy about the bolts. Tr. 293. This testimony was in direct 

43 FMSHRC Page 447
contradiction to Hilk’s own contemporaneous notes. In her notes, Hilk wrote nothing about 

Watson educating Cassidy about the bolts. See Ex. R-X. Rather, she wrote, “The first meeting 

was a warning regarding the unprofessionalism. Scott [Watson] was very clear this was the last 

time we would meet on this subject and that the next time would not have the same outcome.” 

Ex. R-X. Hilk was a supervisor in Human Resources and clearly documented that the September 

meeting was the first verbal warning, the November meeting was the second verbal warning, and 

that the next incident would result in adverse employment action. Hilk provided no alternative 

explanation for these notes nor is it likely that one is possible. Indeed, the suspension letter that 

Hilk authored clearly places these actions in the same disciplinary chain. Hilk testified that she 

only included discussions of the emails in the suspension letter because she felt “it was important 

to show that Barbara had had [sic] recently been counseled on unprofessionalism by sending the 

emails.” Tr. 301. However, in her own notes, Hilk stated that those meetings were disciplinary 

warnings, and the inclusion of them in the letter is clearly describing strikes one and two of a 

progressive discipline regime. 

Hilk was in charge of conducting an investigation and recommending the level of 

discipline, but this Court cannot find that either action was performed in good faith. In addition 

to Cassidy and Knipple, there were at least six other people present for the December 12, 2019 

incident. Tr. 118. Hilk only collected one written statement and one oral statement of the 

incident. Tr. 297, 324-325. Despite calling Cassidy twice at home during Cassidy’s vacation, 

Hilk never discussed the incident with Cassidy or asked her for her explanation of events, and 

then testified that the reason she did not interview Cassidy was due to her vacation. Tr. 297, 330. 

In determining the type of discipline that Cassidy should receive, Hilk sent Fisher a previous 

suspension of another employee and wrote, “In looking through a personnel file, I by chance 

came across the attached. In being consistent with past practice for the same violation, we would 

like to make Barb Cassidy’s suspension 10 days.” Ex. R-R. However, at hearing, Hilk testified 

that she did not find it “by chance,” but rather knew it existed and searched for it. Tr. 332-333. 

The letter that Hilk sent was from before Hilk began working for Consol. Hilk further testified 

that at the December disciplinary meeting, Cassidy was given an opportunity to defend herself, 

but chose not to do so. Tr. 325. This testimony is belied by Hilk’s contemporaneous notes, where 

she wrote that Cassidy did defend herself, when she wrote, “After Josh left, she disputed the fact 

that she slammed her hand and pointed at him.” Ex. R-X. 

 

Though there is ample direct evidence of discriminatory motive, this Court will still 

examine the traditional motivational nexus below. 

A. Animus Towards Protected Activity 

“Hostility towards protected activity—sometimes referred to as ‘animus’—is another 

circumstantial factor pointing to discriminatory motivation. The more such animus is specifically 

directed towards the alleged discriminatee's protected activity, the more probative weight it 

carries.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corporation, 2 FMSHRC 2508, 

2511 (Nov. 1981) (citations omitted). In the instant case, there is abundant evidence of hostility 

or animus towards the protected activity. 

43 FMSHRC Page 448
Immediately following each of Cassidy’s emails where she raised safety issues, Cassidy 

was called into meetings with upper management and a member of Human Resources. In the 

September 17, 2019 meeting, Watson accused Cassidy of undermining management in raising 

safety issues and gave her a warning “regarding the unprofessionalism.” Tr. 60; Ex. R-X. In the 

November 18, 2019 meeting, Watson sat very close and yelled at Cassidy. Tr. 105-106. Watson 

told Cassidy that she “did it again,” in sending the email, and that he was “tired of cleaning up 

[her] messes.” Tr. 107-109. Watson warned Cassidy that this was her second warning and that 

next time she would face more severe consequences. Ex. R-X. At the end of the email, Watson 

required Cassidy to state affirmatively that she would “never send an email to any of you as long 

as I live ever again.” Tr. 113. Respondent’s further inclusion of references to these emails in the 

suspension letter also constituted animus towards Cassidy’s protected activities of raising safety 

complaints via email. Ex. S-1. 

Following Cassidy’s protected activity of complaining of a less qualified construction 

foreman—albeit in a loud manner—Respondent engaged in a farce of an investigation. 

Respondent never interviewed most of the witnesses to the argument, including Cassidy. 

Respondent ambushed Cassidy with a disciplinary meeting, without providing her any time or 

warning to bring forward witnesses or present her side of the events. Tr. 135-137. This Court is 

not implying here that the Mine Act generally requires an employer to afford due process prior to 

discipline, but only that the manner in which the investigation and meeting were conducted here 

is evidence of animus towards the protected activity. 

B. Knowledge 

“Knowledge of protected activity is one of the most important factors in a circumstantial 

case for discrimination.” KenAmerican Resources, Inc. 37 FMSHRC 2767, 2780 (Dec. 2015) 

(citing Sherwin Alumina, LLC, 36 FMSHRC 730, 736 (March 2014)). In the instant case, there is 

no question that key decisionmakers knew of Cassidy’s protected activities, even if all of them 

may not have been fully aware of all the protected activities. 

According to testimony at hearing, there were four people involved in the decision to 

suspend Cassidy: Joshua Koontz, Eric Schubel, Tina Hilk, and Erica Fisher. Tr. 221-222, 253. 

Hilk was present for each of the meetings; she recommended the 10-day unpaid suspension; and 

she drafted the suspension letter. Therefore, Hilk had knowledge of the full extent of Cassidy’s 

protected activity. Koontz testified that he was not aware of the September email, but was sent 

the November email. Tr. 242; Ex. R-J. However, even if Koontz had not known about the 

September email at one point, he was certainly made aware of it when he signed the suspension 

letter, which discusses that email in the first paragraph. Ex. S-1. Fisher and Schubel did not 

testify at hearing, and it is not clear what knowledge they had. Koontz and Hilk were responsible 

for the suspension letter and the suspension meeting, and their knowledge can by imputed to the 

other decisionmakers. See See Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1068 (May 2011). 

C. Coincidence in Time 

With respect to coincidence in time between the protected activity and the adverse action, 

the Commission has noted, “[a] three week span can be sufficiently close in time,” especially 

43 FMSHRC Page 449
when there is evidence of intervening hostility, animus or disparate treatment. CAM Mining, 

LLC, 31 FMSHRC at 1090. Likewise, in All American Asphalt, a 16-month gap existed between 

the miners’ contact with MSHA and the operator’s failure to recall miners from a layoff; 

however, only one month separated MSHA’s issuance of a penalty resulting from the miners’ 

notification of a violation and that recall failure. Sec’y of Labor on behalf of Hyles v. All 

American Asphalt, 21 FMSHRC 34 (Jan. 1999). Similarly, in Pamela Bridge Pero v. Cyprus 

Plateau Mining Corp., the Commission found a five-month gap to constitute close temporal 

proximity between the protected activity and the adverse employment action. 22 FMSHRC 1361, 

1365 (Dec. 2000). The Commission stated “We ‘appl[y] no hard and fast criteria in determining 

coincidence in time between protected activity and subsequent adverse action when assessing an 

illegal motive. Surrounding factors and circumstances may influence the effect to be given to 

such coincidence in time.”’ Sec’y of Labor on behalf of Hyles v. All American Asphalt, 21 

FMSHRC at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991)). 

The series of protected activities that occurred in the instant case took place on 

September 13, November 15, and December 12, 2019. The meetings and suspension then 

occurred on September 17, November 18, and December 19, 2019. The time periods between 

each protected activity and the Respondent’s reaction were always within a few days, and the 

time difference from the first protected activity until the ultimate suspension was approximately 

three months. The “fact that the Company's adverse action against [a miner] so closely followed 

the protected activity is itself evidence of an illicit motive.” Donovan v. Stafford Const. Co., 732 

F.2d 954, 960 (D.C. Cir. 1984). I find that this proximity in time is strong evidence of 

discriminatory motive behind Cassidy’s discipline. 

D. Disparate Treatment 

Respondent argues that Cassidy was suspended for her “unprofessional” behavior in 

violation of Employee Conduct Rule 4. Resp. Reply Brief at 6; Tr. 212-214, 221. This rule 

prohibits insubordination, or refusal to perform work, as well as the use “of profane, obscene, 

abusive, or threatening language or conduct toward subordinates, fellow employees, or officials 

of the company.” Ex. R-H. In the instant case, evidence was presented of miners yelling and 

screaming at each other, miners ridiculing each other, and miners engaging in profanity, and yet 

most of the conduct was not by Cassidy and most resulted in no discipline. There is little 

evidence that Rule 4 was taken seriously at the mine, except as an ex post facto excuse for 

justifying discipline. 

Though Cassidy readily conceded and the evidence shows that she yelled at Knipple 

concerning the choice of a construction foreman, yelling between miners was common at the 

mine. Tr. 127-128, 167. Section Coordinator Don Blumetti regularly yelled at Cassidy and 

suffered no discipline as a result. Tr. 129-131. In the November meeting, Watson sat close to 

Cassidy and yelled at her to the point where his voice was cracking, and yet no discipline 

resulted from his treatment of her. Tr. 104-106. Koontz testified that miners were ridiculing 

Knipple based on what occurred between him and Cassidy, with some even engaging in 

profanity, yet there is no indication that any of them were disciplined. Tr. 218. 

43 FMSHRC Page 450
Respondent argued that the 10-day suspension was consistent with other discipline meted 

out at Enlow Fork. To support this position, Respondent introduced a short letter from over five 

years earlier of a miner that was suspended for 10 days. Ex. R-R. This letter provided few details 

that could lead this Court to conclude that there was any similarity in the conduct or the context 

between Cassidy’s case and the miner referenced in the old letter. By all accounts, Enlow Fork 

was a stressful work environment, made more stressful due to a recent fatality, and yelling was 

common. The fact that the only disciplinary letter that Hilk was able to find was from more than 

five years prior and involved a situation about which she had no firsthand knowledge, shows just 

how rarely yelling between miners results in discipline. 

IV. Affirmative Defense 

Having found that the miner engaged in protected activities, suffered an adverse 

employment action, and that there was a nexus between the two, the operator may still avoid 

liability if it can show that it would have disciplined her for unprotected activity alone. See 

MSHA obo Riordan v. Knox Creek Coal, 38 FMSHRC 1914 (Aug. 2016). The Commission has 

explained: 

that an operator's business justification defense should not be “examined 

superficially or be approved automatically once offered.” Haro v. Magma Copper 

Co., 4 FMSHRC 1935, 1938 (Nov. 1982); see Cumberland River Coal Co. v. 

FMSHRC, 712 F.3d 311, 320 (6th Cir. 2013). In reviewing defenses, the Judge 

must “determine whether they are credible and, if so, whether they would have 

motivated the particular operator as claimed.” Bradley v. Belva Coal Co., 4 

FMSHRC 982, 993 (June 1982). The Commission has held 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 of Labor on behalf of Price v. Jim 

Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing Haro, 4 FMSHRC 

at 1937-38). 

Id. at 1925. 

In the instant case, the Respondent argues that even if this Court finds discrimination, it 

would have disciplined Cassidy based solely on her yelling at Knipple. Resp. Brief at 10. Aside 

from the letter concerning another miner from five years earlier discussed supra, Respondent 

offers little convincing support for this argument. In lieu of such evidence-based support, 

Respondent’s counsel employs exaggerated descriptives, such as “verbal assault” to liken 

Cassidy’s action to criminal or tortious conduct. Resp. Brief at 1, 7, 9, 10. This language is 

wholly inappropriate to describe what occurred.31 The term “assault” is a term of art, meaning, 

31 This Court found much of the language employed by Respondent’s counsel 

inappropriate. Cassidy has worked for decades in mines as one of only a handful of women. She 

described various indignities and hurdles she had to face as a result, including when upon 

meeting Knipple, when he refused to talk to her and embarrassed her in a room full of her 

(continued...) 

43 FMSHRC Page 451
“The threat or use of force on another that causes that person to have a reasonable apprehension 

of imminent harmful or offensive contact; the act of putting another person in reasonable fear or 

apprehension of an immediate battery by means of an act amounting to an attempt or threat to 

commit a battery.” ASSAULT, Black's Law Dictionary (11th ed. 2019). “Verbal assault[s],” as 

defined by various statutes and court decisions, are “designed to instill serious fear.” Frederick 

M. Lawrence, The Collision of Rights in Violence-Conducive Speech, 19 Cardozo L. Rev. 1333, 

1348 (1998). There is no evidence that Knipple felt any of these things during the argument with 

Cassidy. 

In the instant case, Respondent has provided little credible evidence or arguments that it 

would have disciplined Cassidy regardless of her protected activity. 

REMEDIES AND PENALTIES

 A successful complainant is entitled to be made whole for the entire period of her 

unemployment, plus interest. See Local Union 2274, District 28, UMWA v. Clinchfield Coal Co., 

10 FMSHRC 1493 (Nov. 1988). The Commission has recognized that certain events, such as a 

bona fide reduction in force, can toll a miner’s right to back pay, the burden to show that work is 

no longer available for the complainant lies squarely with the employer. KenAmerican 

Resources, Inc., 31 FMSHRC 1050, 1054-55 (Oct. 2009) (citing Kenta Energy, Inc., 11 

FMSHRC 1638 (Sept. 1989)). The operator must make this showing by a preponderance of the 

evidence. Id.; C.R. Meyer and Sons Co., 35 FMSHRC 1183, 1188 (2013). In the absence of 

evidence identifying any basis for tolling or other restrictions on lost wages, Complainant is 

entitled to be made whole for the entire period of her unemployment, plus interest. See 

Clinchfield Coal Co., 10 FMSHRC 1493 (Nov. 1988). 

Having found that Respondent discriminated against Cassidy in violation of the Mine 

Act, the next issues are the proper remedies and civil penalties.32 With respect to remedies, the 

31 (...continued) 

colleagues by stating, “I don’t talk to women.” Tr. 116. Cassidy should not have to face such 

gendered misrepresentations of her actions in a court of law. 

Respondent’s counsel repeatedly used language that was misogynistic and ableist, 

whether consciously or subconsciously. This included their repeated attempts to describe 

Cassidy’s argument with Knipple as a form of “emasculation” Tr. 198; Resp. Brief at 1. They 

even went so far as to ask Cassidy whether she was responsible for emasculating Knipple, even 

if it was not her intent. Tr. 198. Such questions imply that a woman who yells at a man is guilty 

of emasculating him no matter what the content of her speech or her intent. Respondent’s 

counsel further described Cassidy’s safety emails as “frantic,” Resp. Brief at 6, also stating that 

she “frantically shouted in her email,” and saying that they had an “unhinged tone.” Resp. Reply 

Brief at 2. These descriptions are inaccurate, and this Court is troubled by Respondent’s 

counsel’s use of them. 

32 Respondent made no arguments concerning remedies or penalties in its post-hearing 

briefs. 

43 FMSHRC Page 452
parties have stipulated that Cassidy’s lost earnings due to her unpaid suspension amounted to 

$4,265.04 in lost wages and $255.90 in lost employer contributions to Cassidy’s 401(k). Jt. Stip. 

8, 11. This Court finds it appropriate to award this full back pay and lost employer contribution, 

plus interest. See GMS Mine Repair & Maintenance, 38 FMSHRC 2664, 2683 (Oct. 2016) 

(citing Local 2274, District 28, UMWA, 10 FMSHRC 1493, 1505 (Nov. 1988)). In addition to 

backpay, the Secretary requests that the Respondent be ordered to expunge from Cassidy’s 

personnel file any documentation, records, or other references to her suspension. Sec’y Brief at 

30. 

 The Secretary further proposes a civil penalty of $15,000. Sec’y Brief at 30. The 

principles governing the authority of Commission Administrative Law Judges to assess civil 

penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine 

Act delegates to the Commission and its judges “authority to assess all civil penalties provided in 

[the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the Secretary. 30 

U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to 

challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. 

§ 2700.28. The Court’s assessment here is independent, and the Secretary’s proposal “is not a 

baseline or starting point,” that the Court has used in its assessment. Sec’y of Labor, MSHA v. 

The American Coal Co., 38 FMSHRC 1987 (Aug. 2016). The Act requires that in assessing civil 

monetary penalties, the judge must consider six statutory penalty criteria: the operator’s history 

of violations, its size, whether the operator was negligent. the effect on the operator’s ability to 

continue in business, the gravity of the violation, and whether the violation was abated in good 

faith. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the Commission has held 

that judges must make findings of fact on the statutory penalty criteria. Sellersburg Stone Co., 5 

FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings 

have been made, a judge’s penalty assessment for a particular violation is an exercise of 

discretion “bounded by proper consideration of the statutory criteria and the deterrent purposes 

underlying the Act’s penalty scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 

(May 2000). 

The instant case is an egregious case that warrants a civil penalty of $20,000. At the time 

of the discrimination in this matter, the Mine had a history of five prior 105(c) violations. 

Discrimination Complaint Ex-B. Furthermore, the mine was in the largest category of mines, and 

the controlling entity in the largest category under MSHA’s tables in Part 100.3. Id. The parties 

have stipulated that the Secretary’s proposed penalty of $15,000 will not affect Respondent’s 

ability to continue in business, and there is nothing in evidence that suggests that an increased 

penalty of $20,000 would affect Respondent’s ability to continue in business. Jt. Stip. 12.

Respondent’s actions displayed a sustained series of discriminatory conduct following multiple 

safety complaints, which exhibit a high degree of culpability. The gravity of the violation was 

significant in that it caused Cassidy to lose 10 days of pay, silenced a safety advocate, and sent a 

message in the mine that safety complaints would lead to discipline. Such conduct has the effect 

of chilling the speech of miners. Lastly, Respondent made no good faith effort to rectify its 

repeated violations of Cassidy’s rights. A $20,000 civil penalty is appropriate to effectuate the 

purposes of the Mine Act and its core anti-discrimination provisions. 

43 FMSHRC Page 453
CONCLUSION AND ORDER

Based on the foregoing, I find that Respondent violated Section 105(c) of the Act by 

discriminating against Cassidy for engaging in protected activity. 

Respondent is ORDERED to pay Cassidy $4,265.04 in lost wages and $255.90 in lost 

employer contributions to her 401(k), plus pre-judgment interest.33 Further, Respondent shall 

expunge from Cassidy’s personnel file any documentation, records, or other references to her 

suspension. 

It is ORDERED that Respondent post this decision at the Enlow Fork Mine in a 

conspicuous unobstructed place where notices to employees are customarily posted, for a period 

of 60 days. 

It is FURTHER ORDERED that Respondent pay a civil penalty of $20,000.00 within 

30 days of this Decision to the Secretary of Labor.34

 /s/ John Kent Lewis 

John Kent Lewis 

 Administrative Law Judge 

33 The interest should be calculated using the Arkansas-Carbona/Clinchfield Coal 

Co. method, which provides that the amount of interest equals the quarter's net back pay 

multiplied by the number of accrued days of interest multiplied by the short-term federal 

underpayment rate. Sec'y of Labor on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 

2042, 2052 (Dec. 1983), as modified by Clinchfield Coal Co., 10 FMSHRC 1493, 1505-06 (Nov. 

1988). 

34 Payment should be paid electronically at Pay.Gov, a service of the U.S. Department of 

the Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. 

43 FMSHRC Page 454
Distribution (Via E-mail and First-Class Mail): 

Brian P. Krier, U.S. Dept of Labor, Office of the Regional Solicitor, 1835 Market Street, 

Mailstop SOL/22, Philadelphia, PA 19103, krier.brian@dol.gov 

Nicholas J. Bell, Esq. Buchanan Ingersoll & Rooney PC, Union Trust Bldg., 501 Grant St., Suite 

200, Pittsburgh, PA 15219-1410, nicholas.bell@bipc.com 

Erin J. McLaughlin, Esq., Buchanan Ingersoll & Rooney PC, Union Trust Bldg., 501 Grant St., 

Suite 200, Pittsburgh, PA 15219-1410, erin.mclaughlin@bipc.com 

Barbara E. Cassidy, 20 Plum Run Lane, Scenery Hill, PA 15360, bepcassidy622@gmail.com 

43 FMSHRC Page 455

ADMINISTRATIVE LAW JUDGE ORDERS
43 FMSHRC Page 456
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

July 14, 2020 

 

ORDER DENYING MOTION TO ENFORCE ORDER

Before: Judge Rae 

 This matter comes before the Court upon the Secretary of Labor’s (“Secretary”) Motion 

to Enforce Order (“Motion”). For the reasons set forth below, the Secretary’s Motion is denied. 

I. BACKGROUND 

On August 20, 2019, I issued an Order Granting Temporary Economic Reinstatement 

(“Order”) ordering Lehigh Cement Company, LLC (“Respondent”) to economically reinstate 

James McGaughran in accordance with all terms set forth in the parties’ Joint Motion to Approve 

Settlement Regarding Temporary Reinstatement.I issued the Order in the temporary 

reinstatement proceeding, Docket No. PENN 2019-0144. Subsequently, I was assigned this 

discrimination proceeding—Docket No. PENN 2020-0015—which concerns the merits of 

McGaughran’s discrimination complaint. I set a hearing date of June 2-4, 2020 for the 

discrimination proceeding. Subsequently, I postponed the hearing until October 27-30, 2020 due 

to COVID-19. 

On May 11, 2020, Respondent filed a Motion for Tolling of Economic Temporary 

Reinstatement. On May 22, 2020, I issued the Order Tolling Temporary Reinstatement under the 

temporary reinstatement docket, Docket No. PENN 2019-0144. The Secretary filed a Petition for 

Discretionary Review of my Order Tolling Temporary Reinstatement, which the Commission 

granted on July 1, 2020. The matter is currently pending before the Commission.

II. DISCUSSION 

The Secretary’s Motion alleges that Respondent is not honoring the Order. Specifically, 

the Secretary alleges that Respondent failed to pay McGaughran the entire amount he is owed 

under Respondent’s Annual Incentive Plan (“Incentive Plan”). The Incentive Plan provides 

Respondent’s eligible employees with “an incentive compensation opportunity for improving

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JAMES MCGAUGHRAN, 

 Complainant, 

 

 v. 

LEHIGH CEMENT COMPANY, LLC, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. PENN 2020-0015-DM 

 

Mine: Nazareth Plant I 

Mine ID: 36-00190 

43 FMSHRC Page 457
operating performance within their areas of responsibility during the ‘plan year.’” Mot. to 

Enforce Order Ex. 1, at 1. The Secretary seeks an order requiring Respondent to pay 

McGaughran $12,000.00, which the Secretary claims represents the remainder of the Incentive 

Plan payment that Respondent has withheld from McGaughran.1 

Conversely, Respondent claims it is in full compliance with the Order. Respondent 

argues that payments under the Incentive Plan are a discretionary “bonus,” not a “benefit” that 

McGaughran is entitled to under the Order. Resp’t’s Opp’n to Mot. to Enforce Order, at 3-5. 

Although Respondent made a partial Incentive Plan payment to McGaughran, Respondent now 

maintains that the Order does not require Respondent to make any Incentive Plan payment to 

McGaughran. Id. at 6-7. For that reason, Respondent seeks an order requiring McGaughran to 

return the partial Incentive Plan payment to Respondent. 

Ultimately, I cannot resolve the issues raised by the Secretary’s Motion at the present 

time because the Motion is not properly before me and because I lack jurisdiction over the 

temporary reinstatement proceeding. The Secretary filed the instant Motion under the incorrect 

docket. The instant discrimination proceeding solely concerns the merits of McGaughran’s 

discrimination claim, not issues addressing compliance with the Order. Rather, the matter of 

enforcing compliance with the Order would be properly filed under Docket No. PENN 2019-

0144, the temporary reinstatement proceeding. 

However, this Court would lack jurisdiction to address the substance of the Secretary’s 

Motion even if it were filed under the temporary reinstatement docket. Per Commission Rule 

45(e), “[a] Judge’s order temporarily reinstating a miner is not a final decision within the 

meaning of [Section] 2700.69, and[,] except during appellate review of such order by the 

Commission or courts, the Judge shall retain jurisdiction over the temporary reinstatement 

proceeding.” 29 C.F.R. §2700.45(e)(4) (emphasis added); see also BR&D Enters., Inc., 

23 FMSHRC 386, 389 (Apr. 2001). During the Commission’s review of the Order, the Court 

does not retain jurisdiction over the temporary reinstatement proceeding.2

 29 C.F.R. 

§ 2700.45(e)(4). 

1 From 2016 through 2019, Respondent paid McGaughran an incentive payment that 

ranged from 15% to 17% of his annual salary. McGaughran Decl. ¶ 5. The Incentive Payment 

Respondent paid McGaughran in April 2020 represented approximately 7% of his annual salary. 

Id. ¶¶ 6, 7. 

2 Even if I had jurisdiction, I would find that payments under the Incentive Plan are not a 

“benefit” that McGaughran is entitled to under the Order. Payments under the Incentive Plan are 

solely at the discretion of Respondent to award. Further, Section VI.D of the Incentive Plan 

states that “incentive payments . . . shall not be deemed a part of a participant’s regular, recurring 

compensation for purposes of calculating payments or benefits from any Company benefit plan 

or severance program.” Mot. to Enforce Order Ex. 1, at 7. 

43 FMSHRC Page 458
Therefore, I deny the Secretary’s Motion to Enforce Order because the Motion is not 

properly before me and because I lack jurisdiction over the temporary reinstatement proceeding 

pending review by the Commission. 

ORDER 

The Secretary’s Motion to Enforce Order is DENIED. 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

M. del Pilar Castillo, Office of the Solicitor, U.S. Department of Labor, 170 S. Independence

Mall West, Suite 630E, Philadelphia, PA 19106, Castillo.M.Pilar@dol.gov

Margaret Lopez, Carin Burford, OGLETREE, DEAKINS, NASH, SMOAK & STEWART P.C., 

1909 K Street NW, Suite 1000, Washington, DC 20006, margaret.lopez@ogletree.com, 

carin.burford@ogletreedeakins.com

43 FMSHRC Page 459
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

July 25, 2020 

ORDER ON RESPONDENT’S MOTION TO COMPEL 

PRODUCTION OF DOCUMENTS 

Respondent, Yager Materials Corp., through Counsel, filed, on July 21, 2020, a Motion to 

Compel Production of Documents. (“Motion”). The Court held a conference call with the parties 

on July 23, 2020 to discuss the Motion. During that call the also Court issued its rulings on the 

subjects identified in the Motion. This Order memorializes the Court’s rulings. 

The Motion requested the following documents: Copies of the statement or memorandum 

of interview of any interview of Mr. Whitmore; Copies of the statements or memoranda of 

interviews of any management witness; Copies of all exhibits the Secretary intends to introduce 

at hearing on the Secretary’s Application for Temporary Reinstatement in this matter; Copies of 

any documents Mr. Fugate relied upon in preparing his Declaration. Motion at 2-3.

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 

43 FMSHRC Page 460
 The Secretary responded to the Motion via an email, objecting to it on the basis that it ran 

afoul of several of the Commission’s Procedural Rules, including claims that the response to the 

Motion would not be due until the day of the temporary reinstatement hearing or later and that 

discovery was not expressly contemplated for a hearing on a temporary reinstatement 

application. The full text of the Secretary’s email response is footnoted here.1 

1

 The Secretary’s Attorney stated in his email that he “request[ed] oral argument on this 

matter [asking that the Court] [p]lease permit [him] a brief, if unorthodox, rejoinder: As the 

parties are aware, by Rule, a response to the Respondent’s Motion is not due for eight days from 

service, which would be July 29, 2020, the day of the hearing. 29 C.F.R. 2700.10(d). Any 

discovery served under the Rules would not be due for 25 days from service. 29 C.F.R. 

2700.57(c). If we call what [Respondent’s Attorney] served on July 17, 2020 “Document 

Requests,” the responses from the Secretary would not be due until August 11, 2020. The Rules 

also clearly state that discovery must be completed at least 20 days before a hearing. 29 C.F.R. 

2700.56(e). We are within 20 days of hearing and were when the requests were served. Even [the 

Respondent’s attorney’s] arbitrary deadline of this Friday [July 24, 2020] (after he conceded his 

initial arbitrary deadline of tomorrow) has not passed for the Secretary’s responses. So, to have 

any discussion of what the Rules permit, we must ignore the plain language of the foregoing 

rules, and the deadline that the Respondent, itself, set. The Respondent and the Secretary agree 

on one thing: the Commission Rules do not expressly contemplate discovery commencing after a 

request for a hearing on an Application for Temporary Reinstatement: (d) Initiation of discovery. 

Discovery may be initiated after an answer to a notice of contest, an answer to a petition for 

assessment of penalty, or an answer to a complaint under section 105(c) or 111 of the Act has 

been filed. 30 U.S.C. 815(c) and 821. 29 C.F.R. 2700.56(d). Absent from this list is the request 

for a Temporary Reinstatement hearing. This absence is intentional in light of the unique scope 

of such a hearing and the speed at which it must be completed. If the rules contemplated 

discovery prior to a Temporary Reinstatement hearing, they would necessarily have set forth 

things like the scope of such discovery in light of the limited scope of the hearing, alternate time 

frames for service of requests and responses, and a blanket exemption from Rule 2700.56(e). 

Initial disclosures, rather than discovery, would be more appropriate given the tight deadlines 

between the request for a hearing and the hearing itself, but the Rules contain no such provisions. 

As I explained to [the Respondent’s Attorney]: he wants discovery, the complainant (I am sure) 

wants discovery, and the Secretary wants discovery. Why does the Respondent get discovery and 

not the Secretary or the Complainant? The time frame for a Temporary Reinstatement hearing 

does not allow the parties the opportunity to serve discovery and to lodge good-faith objections 

to such requests. As we have here, we are essentially preparing for the hearing at the same time 

we are having a discovery dispute. If all of the parties, as the Respondent argues, are allow[ed] to 

serve discovery, the week before the hearing will be filled with constant expedited discovery 

battles for which the Rules set forth no time frames. This current issue only came to a head 

because the Secretary’s counsel affirmatively stated that discovery was not permitted. Had the 

undersigned waited until this Friday to do so, the issue would not be before the Tribunal until 

three days before the hearing. Had the Secretary served discovery responses with objections, the 

same problem would have arisen. Finally, since the Rules set forth no limit on discovery for 

[a]Temporary Reinstatement proceeding, who is to decide the scope of what is permissible for 

such requests and how many requests can be served? There is simply no guidance available on 

 (continued...) 

43 FMSHRC Page 461
At the outset of the July 23, 2020 conference call with the parties to discuss the Motion, 

the Court informed that it considered the Secretary’s Counsel’s procedural objections to have 

been waived by virtue of his email response. 

The Court’s rulings on the Motion were also informed by the Commission’s procedural 

rules on the subject of Temporary reinstatement Proceedings at 29 CFR 2700.45. It is noted that 

subsection (d) of that section provides that “[t]he scope of a hearing on an application for 

temporary reinstatement is limited to a determination as to whether the miner's complaint was 

frivolously brought. The burden of proof shall be upon the Secretary to establish that the 

complaint was not frivolously brought. In support of his application for temporary 

reinstatement, the Secretary may limit his presentation to the testimony of the 

complainant. 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.” Id. (emphasis added). In that regard, the Court 

notes that there is no reference to the MSHA investigator’s declaration. Rather, the focus is upon 

the testimony of the complainant and that the Secretary’s presentation can rely solely upon that.2

1. The Respondent’s request for copies of the statement or memorandum of interview

of any interview of Mr. Whitmore

Apart from the Court’s ruling that the Secretary had waived issues regarding the due date

for a response to the motion, the Court informed the parties that it did not view the Respondent’s 

request for copies of the statement or memorandum of interview of any interview of Mr. 

Whitmore to be properly denominated as “discovery,” at least in the classic sense of that term. 

The Court explained its reasoning for this determination, noting that all the Respondent had, and 

all that the Court had as well, was the Complainant’s signed, but unfairly uninformative May 18, 

2020, “Discrimination Report.” That document contained a typed “Summary of Discriminatory 

Action,” which stated in its entirety the following: 

I was suspended on April 23, 2020, then discharged on April 29, 2020, from my 

job as the Maintenance Manager at Riverside Stone underground and surface 

mines because of numerous protected safety activities that I engaged in. 

Discrimination Report, May 18, 2020. 

1

 (...continued) 

what the permissible scope of discovery is in light of the ‘not frivolously brought’ standard. It is 

inconsistent that a party would be burdened with a broader scope of discovery than its burden of 

proof at an expedited hearing. The Rules contain no guidance on these issues because discovery 

was not completed, and was specifically excluded, for Temporary Reinstatement hearings.” July 

21, 2020 email from the Secretary to the Court. 

2

 As explained infra with regard to the Respondent’s request for copies of the statement 

or memorandum of interview of any interview of Mr. Whitmore, the Court considered the 

Respondent’s discovery request to actually be a request for a complete statement of the 

Complaint from the Complainant Whitmore. 

43 FMSHRC Page 462
The “Discrimination Complaint” document itself was no more enlightening. At its 

heart, it informed of the Complainant’s name, rate of pay, job title and the address of the 

Respondent’s mine and the names of four individuals employed by the Respondent alleged to be 

responsible for the discriminatory action.3 Discrimination Complaint, May 19, 2020. 

Importantly, the Discrimination Complaint added nothing, that is to say it provided no 

additional information whatsoever regarding any particulars about the alleged protective activity. 

It was only through the vehicle of the Secretary’s “Declaration of Freddie Fugate,” 

identified as a “senior special investigator” employed by MSHA, that some particulars about the 

nature of the Complainant’s discrimination complaint were first revealed. Of course, Mr. Fugate 

has no more first-hand knowledge about the Complainant’s allegations than the Court. 

Accordingly, the Fugate Declaration serves as a mere conduit, recounting the allegations 

made by the Complainant and nothing more than that. Thus, the Court does not consider it farfetched to analogize the Fugate Declaration as akin to an individual relating a story over a fence 

to a neighbor. And it is that serious shortcoming that formed the basis of the Court’s problem 

with the inadequacy of the declaration. The story may be an accurate retelling, or it may not, but 

for purposes of defending a discrimination complaint under due process, a respondent has a right 

to more. The Respondent is entitled to the Complainant’s first-hand accounting of the basis for 

his discrimination complaint. Fundamental fairness demands this. See, e.g., Sec. v. Cumberland 

Coal Resources, 32 FMSHRC 442 (May 2010), wherein the Commission stated that the 

“concepts of fundamental fairness [ ] require that every litigant receive adequate notice of 

charges made against it.” Id. at 449. 

Accordingly, during the conference call, the Court ordered that copies of the statement or 

memorandum of interview of any interview of Mr. Whitmore be provided. 

2. Copies of the statements or memoranda of interviews of any management witness 

The Court ruled during the conference call that this request was denied. The basis for that 

ruling was that such statements, if they exist, are not necessary in the context of the Secretary’s 

burden in an application for temporary reinstatement. If the Secretary did intend to introduce 

such documents, the Court’s order for the parties’ prehearing exchange would cover those.4

 As 

an aside, the Court opined that it would be highly unusual for any management witness to have 

made a statement without receiving a copy of it. 

 

3

 Four individuals are named in Complaint itself as those responsible for the 

discriminatory action: Bryan Ory, Rick Voyles, Tammy Wimsatt, and Lisa Weldman, but there 

is no information tying those individuals to Whitmore’s Discrimination Report. 

4

 The Court had previously ordered that the parties conduct their prehearing exchange by 

Friday, July 24, 2020. The parties submitted those exchanges pursuant to that order. 

43 FMSHRC Page 463
3. Copies of all exhibits the Secretary intends to introduce at hearing on the 

Secretary’s Application for Temporary Reinstatement in this matter 

This request, as alluded to above, was covered by the Court’s prehearing exchange order. 

4. Copies of any documents Mr. Fugate relied upon in preparing his Declaration. 

As the Court ruled that Mr. Fugate’s declaration could not serve as a substitute for copies 

of the statement or memorandum of interview of any interview of Mr. Whitmore, this request 

was denied. The Court considered that such other documents, if they exist, would more 

appropriately be the subject for possible discovery in a full hearing on the merits in the 

complainant’s discrimination complaint, but not in the context of a temporary reinstatement 

application. It is noted that such a request could run afoul of attorney-client or deliberative 

process claims. 

Accordingly, having ruled on the four aspects of the Respondent’s Motion, this matter 

has been disposed of and will now proceed to the hearing on the application for temporary 

reinstatement set to commence on Wednesday, July 29, 2020 at 9:00 a.m. EDT. 

SO ORDERED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Thomas J. Motzny, 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, P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com 

Wes Addington, Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858 

wes@aclc.org 

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

awolfson@fisherphillips.com

43 FMSHRC Page 464
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577/FAX 303-844-5268 

September 9, 2021 

 

ORDER GRANTING THE SECRETARY’S MOTION FOR LEAVE TO FILE FIRST 

AMENDED COMPLAINT 

This proceeding was brought by the Secretary of Labor on behalf of Miguel Pugmire 

against Nevada Gold Mines (“NGM”) pursuant to section 105(c)(2) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801, et seq. (“Mine Act”) and 29 C.F.R.§ 2700.40 et seq. 

On August 19, 2021, the Secretary filed a Motion for Leave to File First Amended Complaint 

(“Mot.”). Respondent filed an opposition to the Secretary’s motion (“Opp.”). For reasons that 

follow, I GRANT the Secretary’s motion. 

The complaint in this matter, as originally filed, contended that Pugmire, an underground 

mine engineer, was summarily terminated from his position after removing four active headings 

from service due to low airflow readings on his monthly secondary air ventilation survey.1

 The 

Secretary asserts that, during discovery, Respondent produced a document showing that Pugmire 

engaged in additional protected activity. As a result, the Secretary now seeks leave to amend the 

complaint to include the additional protected activity. Specifically, the Secretary asks that the 

complaint be amended to allege that “around early August 2020, Mr. Pugmire also raised various 

concerns about the Mine’s ventilation at a meeting attended by Benjamin Gunn, the manager 

who eventually terminated Mr. Pugmire’s employment.” Mot. 3. The Secretary avers that the 

1

 The complaint, as originally filed, alleged that Pugmire removed four active headings 

from service on September 2, 2020. The following day, September 3, 2020, Pugmire requested 

time off due to a family emergency. The complaint further alleged that the request was initially 

approved and Pugmire did not attend work that day, but that NGM later repealed approval and 

labeled Pugmire’s absence as “unexcused.” On September 9, 2020, NGM suspended Pugmire 

and ultimately terminated his employment on September 11, 2020. Among other defenses in its 

answer to the original complaint, Respondent states that Pugmire failed to take all the required 

steps when he first discovered the insufficient airflow such as barricading the affected areas to 

keep miners out. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on 

 behalf of MIGUEL PUGMIRE, 

 Complainant, 

 v. 

NEVADA GOLD MINES, LLC, 

 Respondent 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2021-0148-DM 

MSHA CASE NO: WE-MD-2021-03 

Mine: Turquoise Ridge 

Mine ID: 26-02286 

43 FMSHRC Page 465
proposed amendment “will not significantly affect the scope of the case or unduly prejudice 

Respondent.” Mot. 3. 

NGM, in its opposition, argues that the motion should be denied because the alleged 

additional protected activity was known to the Secretary at the time the discrimination complaint 

was originally filed and, further, that the claims made in the motion are “duplicative” and the 

motion to amend is “futile.” Opp. 1-2, 5-6. 

The Commission's procedural rules do not address amendments to pleadings. 

Nevertheless, the Commission, using the Federal Rules of Civil Procedure as guidance, has taken 

the view that leave to amend discrimination complaints should be “freely granted” in the interest 

of justice. Sec’y of Labor obo Hannah et al. v. Consolidation Coal Co., 20 FMSHRC 1293, 1303 

n. 10 (Dec. 1998); Fed. R. Civ. P. 15); Cyprus Empire Corp., 12 FMSHRC 911,916 (May 1990);

see also Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (9th Circuit

stating that the policy of granting leave to amend should be “applied with extreme liberality.”).

This is especially true when such amendments “do not prejudice a party in preparing its

defenses.” Brannon v. Panther Mining, LLC, 31 FMSHRC 1277, 1279 (Sept. 2009) (ALJ).

Here, the Secretary seeks to amend the complaint to include the additional alleged 

protected activity of Pugmire raising ventilation concerns at an August 2020 meeting attended by 

the individual who ultimately terminated him. I find that the proposed amendment does not 

amount to a new count of discrimination, i.e., it does not allege a new reason for the termination, 

but it provides potentially important context for the complaint by alleging that Pugmire raised 

substantially similar concerns in August. By amending the complaint, the Secretary properly 

seeks to conform the pleadings with evidence that will be adduced at hearing. See Faith Coal 

Co., 19 FMSHRC 1357, 1361-62 (Aug. 1997). 

Administrative pleadings are to be broadly construed and easily amended if adequate 

notice is provided and there is no prejudice to the opposing party. Respondent seemingly argues 

that the Secretary should be barred from amending the complaint to include information that was 

known at the time, but not included in the complaint as originally filed. I disagree. The Secretary 

only learned of the details of the meeting after Respondent provided its responses to written 

discovery. Moreover, I find that the motion provides ample notice of the proposed amendment. 

As the Secretary correctly points out, although written discovery has commenced, “there is 

currently no deadline set for written discovery, depositions have not been scheduled, and there is 

currently no hearing date.” Mot. 6. Further, to avoid additional discovery and possibly resolve 

this matter without the need for a hearing, the parties recently agreed to participate in mediation 

43 FMSHRC Page 466
facilitated by court appointed settlement counsel. Given the early stage of this proceeding, I find 

that Respondent has adequate notice of the proposed amendment.2

While Respondent does not allege that it will suffer prejudice, it asserts that the motion 

should nevertheless be denied because the claims made in the Secretary’s motion are 

“duplicative” and, in turn, “futile.” I disagree. Even if the concerns raised during the August 

2020 meeting are substantially like those raised when Pugmire removed the headings from 

service, the events took place on two separate occasions. Again, as mentioned above, I find that 

the proposed amendment provides potentially important context for the claim. As a result, I find 

that the two alleged protected activities are not duplicative and, in turn, that the proposed 

amendment is not futile for purposes of this discrimination complaint. 

For the reasons set forth above, the Secretary’s Motion for Leave to File First Amended 

Complaint is GRANTED.

3

 

 /s/ Richard W. Manning 

 Richard W. Manning 

Administrative Law Judge 

 Until further notice, case issuances of the Federal Mine Safety and Health Review 

Commission (FMSHRC), including notices, decisions, and orders, will be sent only through 

electronic mail. This includes notices, decisions, and orders described in 29 CFR 2700.4(b)(1), 

2700.24(f)(1), 2700.45(e)(3), 2700.54, and 2700.66(a). Further, FMSHRC will not be monitoring 

incoming physical mail or facsimile described in Procedural Rule 2700.5(c)(2). If possible, all 

filings should be e-filed as described in 29 CFR 2700(c)(1). 

2

 In Brannon v. Panther Mining, LLC, 31 FMSHRC 1277, 1279 (Sept. 2009) (ALJ) 

Former Commission Judge Barbour granted a motion to amend a discrimination complaint to 

include additional protected activity even though the proceeding was much further along, i.e., a 

hearing date had been set and depositions had already occurred. In granting the motion he stated 

that “the company may feel compelled to amend its answer, conduct additional discovery, amend 

its pending motion and supplement its brief in support of the motion, the expenses inherent in 

such activities are the necessary consequences of litigation, costs the company (and any litigant) 

must be prepared to bear.” Id. 

3

 By granting the motion, the court is not passing judgement on whether the additional 

allegations amount to protected activity. Complainant bears the burden of proof and must present 

credible evidence on this point at hearing. 

43 FMSHRC Page 467
Distribution: 

Laura E. Beverage, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

(lbeverage@jacksonkelly.com) 

Natasha Magness, Office of the Solicitor, U.S. Department of Labor, 300 Fifth Ave., Suite 1120, 

Seattle, WA 98104 (magness.natasha.a@dol.gov) 

Miguel Pugmire (miguelpugmire@gmail.com) 

43 FMSHRC Page 468
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

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

September 24, 2021 

ORDER DENYING RESPONDENT’S 

MOTION TO DISSOLVE TEMPORARY ECONOMIC REINSTATEMENT 

 

 Pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine 

Act” or “Act”), 30 U.S.C. §801, et. seq., and 29 C.F.R. §2700.45, the Secretary of Labor 

(“Secretary”) on September 27, 2017, filed an Application for Temporary Reinstatement of 

miner Darcy White (“Darcy” or “Complainant”) to her former position with Respondent Prairie 

State Generating Co., (“Prairie State” or “Respondent”) at the Lively Grove Mine pending final 

hearing and disposition of the case. 

PROCEDURAL HISTORY AND PARTY CONTENTIONS 

 On June 30, 2021, the Respondent filed a timely request for hearing, as well as a Motion 

to Dismiss Application for Temporary Reinstatement for Failure to Join Required Party or to 

Join Required Party. In its motion, Respondent stated that Complainant was employed by 

Custom Staffing, a staffing agency through which Respondent sourced temporary contract 

workers, as needed. Accordingly, Respondent argued that Custom Staffing was a required party 

under Fed.R.Civ.P. 19(b), because Custom Staffing was necessary to effect a remedy. 

 The Secretary opposed Respondent’s motion. The Secretary argued that preliminary 

investigation revealed no evidence that Custom Staffing engaged in any discriminatory conduct, 

and that the complete relief sought required only Prairie State as Respondent. 

 The undersigned deferred ruling on Respondent’s motion prior to hearing, which 

convened via Zoom videoconference on July 20, 2021. After the hearing opened, the parties 

requested to meet in breakout rooms to engage in settlement discussions. Following several 

attempts, the parties reached agreement on material terms of settlement. On July 27, 2021, the 

parties filed a Joint Motion to Approve Economic Reinstatement. On July 29, 2021, this 

administrative tribunal approved the Joint Motion and ordered that within 30 days the Secretary 

SECRETARY OF LABOR, U.S. 

DEPARTMENT OF LABOR on behalf of 

DARCY WHITE, 

 Complainant, 

 v. 

PRAIRIE STATE GENERATING CO., 

 Respondent. 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. LAKE 2021-0158 

MSHA Case No. VINC-CD-2021-03 

Mine: Lively Grove Mine 

Mine ID: 11-03193 

43 FMSHRC Page 469
either complete his investigation and make a determination on the complaint, or provide a 

detailed explanation why he could not do so. 

On August 25, 2021, the Secretary filed a motion stating that the Secretary would not be 

able to complete his investigation within 30 days of the undersigned’s Order due to new 

developments in the case. Specifically, the Complainant filed an Addendum on August 18, 

2021, naming Custom Staffing as an additional Respondent in her discrimination complaint. 

On August 31, 2021, the Respondent filed a Motion to Dissolve Order Granting Joint 

Motion to Approve Temporary Economic Reinstatement Motion and Agreement. In this motion, 

Respondent argued by analogy to the Commission’s decision in Long Branch Energy, 34 

FMSHRC 1984 (Aug. 2021), that this tribunal should adopt a test that would balance the 

Secretary’s need to proceed beyond the deadline with the prejudice the operator would face to 

determine that the Temporary Economic Reinstatement should be dissolved for failure to 

complete the investigation of this expedited matter within the statutory 90-day period referenced 

in section 105(c)(3), or the additional 30-day period encouraged by the undersigned. 

With respect to the first step of Respondent’s proposed test—the Secretary’s burden of 

establishing adequate cause—Respondent argues that the Secretary has failed to establish 

adequate cause for not completing its investigation into the merits of Complainant’s case. 

Specifically, Respondent argues that Complainant is late in filing any Addendum and that any 

additional investigation into an additional respondent should not impact the completion of the 

Secretary’s investigation of Prairie State. Furthermore, Respondent argues that the Secretary and 

Complainant “disclaimed that Custom Staffing was a proper respondent when that issue was 

pending before the Court.” Resp. Mot. at ¶25. Respondent also alleges that the Complainant’s 

Addendum amounts to a “willful delay” and is the result of “bad faith.” Resp. Mot. at ¶26, 27. 

With respect to the second step of Respondent’s proposed test—the operator’s burden of 

showing actual prejudice arising from the delay—Respondent argues (1) that the continuation of 

its requirement to pay Complainant is “manifestly prejudicial,” and (2) that because the 

Secretary has provided no end date for the investigation, he has unduly delayed the matter such 

that it constitutes prejudice against Respondent. 

In a brief footnote, Respondent suggested in the alternative that if the undersigned was 

disinclined to dissolve the Order Granting Temporary Economic Reinstatement, it should toll 

the Order during the period of investigation. 

On September 7, 2021, prior to the Secretary or Complainant submitting their responses 

to the Respondent’s motion, the undersigned convened a conference call, wherein the 

undersigned noted certain strengths in Respondent’s motion and asked why it should not be 

granted. 

On September 13, 2021, the Secretary filed its Opposition to Respondent’s Motion for 

Dissolution, wherein it argued that Respondent “asks for a severe and extraordinary remedy 

without citing any case law in support of its request.” Sec’y Resp. at ¶7. The Secretary argued 

that the only grounds recognized by the Commission to dissolve a Temporary Reinstatement are 

if the Secretary’s involvement in the case ends, and it can be tolled only if there is no longer 

43 FMSHRC Page 470
work at the mine for the Complainant. Neither of these circumstances apply to the instant case, 

so therefore it may not be tolled or dissolved. 

 The Secretary further argues that the Respondent’s proposed test based on Long Branch 

Energy, 34 FMSHRC 1984, is inappropriate because civil penalty cases are different from 

Temporary Reinstatement cases in crucial ways. Congress made clear its intention that 

employers should bear the greater burden of risk in a Temporary Reinstatement proceeding. As 

a result, the Commission has never applied Long Branch to a Temporary Reinstatement case. 

 The Secretary also argued that even if this tribunal were to adopt Respondent’s proposed 

balancing test, Respondent has not shown either undue delay or actual prejudice. Contrary to the 

Respondent’s assertions, the Secretary states that there was no “bad faith” in the instant case. 

Complainant was not represented by counsel when she filed her initial complaint, and it is 

entirely reasonable that she would amend her complaint after retaining and consulting with 

counsel. Furthermore, the Secretary’s earlier position opposing Custom Staffing as a necessary 

party only stated that it was not necessary to effectuate the desired remedy. However, the issue 

presented by Complainant’s Addendum is that Custom Staffing was part of the discrimination 

alleged. The Secretary contends that Respondent improperly conflates these two issues in order 

to arrive at its conclusion of undue delay. 

 The Secretary further argues that Respondent has not made any showing of actual 

prejudice. The requirement to pay a miner under Temporary Reinstatement is not prejudice; it 

“is the nature of temporary reinstatement.” Sec’y Resp. at ¶13. Citing the Commission’s 

decision in Secretary ex rel. Hale v. 4-A Coal Co., Inc., the Secretary argues that the 

Respondent’s reliance on inconvenience or cost is misplaced, because prejudice means a 

“deprivation of a meaningful opportunity to defend against the claim.” 8 FMSHRC 905, 908 

(June 1986). The Secretary argues that the inconvenience that Respondent relies on is entirely 

speculative because it rests on what may occur if the investigation proceeds indefinitely. 

Furthermore, he argues that the decision to choose temporary economic reinstatement in lieu of 

actual reinstatement was the Respondent’s, and it cannot claim prejudice due to its agreement to 

forgo the value of Complainant’s labor. 

 On September 13, 2021, the Complainant, through counsel, similarly submitted a 

Response to Respondent’s Motion, which incorporated the arguments made by the Secretary. 

Additionally, Complainant’s counsel cavils that the September 7, 2021 conference call was 

inappropriate because it was essentially an off-the-record surprise oral argument that may 

inform the undersigned’s decision prior to Complainant or the Secretary having submitted 

written responses. 

 The Complainant’s counsel strenuously objected to Respondent’s accusations of “willful 

delay” and “bad faith” in filing the “eleventh-hour” Addendum to White’s discrimination 

complaint. He explained that the timing of the filing of the addendum was due to the heavy 

caseload that Complainant’s counsel is currently handling, as well as research on the “cat’s 

paw” theory of liability. 

 On September 20, 2021, the Respondent filed a Reply to the Complainant’s and 

Secretary’s Responses, wherein it argued that the Secretary did not establish or show adequate 

43 FMSHRC Page 471
cause for the delay. Respondent questioned the timing of the Secretary’s inclusion of Custom 

Staffing, and ultimately why adding this party impacts the conclusion of the investigation of 

Prairie State. 

DISPOSITION 

 While the undersigned is sympathetic to Respondent’s frustration with the Secretary’s 

continued inability to conclude its investigation within the timeframe stated in the Act, the 

Motion to Dissolve or Toll the Temporary Economic Reinstatement must be denied. 

 Congress viewed the discrimination provision of the Mine Act as having a central place 

in ensuring the health and safety of miners. In the Senate Report accompanying the 1977 Mine 

Act, the Committee stated this sentiment clearly: 

If our national mine safety and health program is to be truly effective, miners will have 

to play an active part in the enforcement of the Act. The Committee is cognizant that if 

miners are to be encouraged to be active in matters of safety and health, they must be 

protected against any possible discrimination which they might suffer as a result of their 

participation. 

S. Rep. No. 95-181 at 34 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623-

624 (1978). Indeed, it was for this reason that Congress explained that the scope of protected 

activities should be “broadly” interpreted and that the Section be “construed expansively.” Id. 

However, Congress understood that a right with a delayed remedy would be hollow, so it 

included a provision for temporary reinstatement of the miner. (“The Committee feels that this 

temporary reinstatement is an essential protection for complaining miners who may not be in the 

financial position to suffer even a short period of unemployment or reduced income pending the 

resolution of the discrimination complaint.” Id. at 35.) Though Congress included short 

timeframes for the investigation and complaint, it was abundantly clear that no miner should 

suffer as a result of delay, stating, “[i]t should be emphasized, however, that these time frames 

are not intended to be jurisdictional. The failure to meet any of them should not result in the 

dismissal of the discrimination proceedings; the complainant should not be prejudiced because 

of the failure of the Government to meet its time obligations.” Id. at 36 (emphasis added). Based 

on the Act and congressional intent, neither a judge nor the Commission can lightly dissolve or 

toll a temporary reinstatement. 

 While the law gives the Secretary a great deal of flexibility in meeting its deadlines, it 

does not allow for an investigation to proceed indefinitely. By its very nature, a temporary 

reinstatement was intended to be temporary, and evidence of undue delay by the Secretary, 

along with actual prejudice to the Respondent, may be grounds for a court to take extraordinary 

action. Such an inquiry must closely examine the facts of the case to determine if extraordinary 

action in warranted. In this case at this time, even accepting Respondent’s proposed Long 

Branch test, which balances the Secretary’s need to proceed against the prejudice faced by the 

Respondent, a dissolution or tolling of the Order Granting Temporary Economic Reinstatement 

is not yet warranted. 

43 FMSHRC Page 472
 The Secretary justified its need for additional time in this case by informing this tribunal 

that on August 18, 2021, Complainant filed an Addendum to her discrimination complaint 

naming Custom Staffing as an additional Respondent to her complaint. Sec’y Response to TR 

Order at ¶5. Complainant had not received legal advice when she filed her initial complaint and 

did not understand the legal distinctions between Prairie State and Custom Staffing. Sec’y 

Opposition to Resp. Motion at ¶3. The Secretary has confirmed that within a week of receiving 

this Addendum, it began requesting documents and interviews from Custom Staffing and is 

diligently investigating the allegations. Id. at ¶6. 

 The Secretary should have concluded his investigation into this expedited case in a more 

timely manner, but the employment relationship in this case is more complicated than in most 

instances. This has led to disagreements over whether the Complainant’s employment was 

actually terminated because she remained employed for Custom Staffing, even after being 

removed from the Prairie State assignment. Resp. Mot. To Dismiss at ¶3-11. There were 

disagreements on whether a remedy could be effectuated by Prairie State alone, because the 

contract between Prairie State and Custom Staffing appeared to be silent on whether Prairie 

State could recall someone for a temporary work assignment. Resp. Reply to Sec’y Opposition. 

These are not issues that arise in most discrimination cases. And while Respondent is free to 

structure its business and employment relationships in whatever manner it chooses, its 

complaint about delay is less convincing when a complicated employment relationship takes 

longer to investigate. 

 With regards to question of prejudice, Respondent argues that it is prejudiced in two 

ways. The first is that it must continue to pay Complainant during the course of the 

investigation, and the second is “the potentially infinite delay proposed by the Secretary.” Resp. 

Motion to Dissolve TR at ¶21, 28. Both of these reasons fail to demonstrate actual prejudice. In 

considering whether a delay by the Secretary in making a discrimination determination has 

resulted in prejudice such that a dismissal may be appropriate, the Commission has held that the 

Respondent must show that “such delay prejudicially deprives a respondent of a meaningful 

opportunity to defend the claim.” Sec’y ex rel. Hale v. 4-A Coal Co. Inc., 8 FMSHRC 905, 908 

(June 1986). 

The first reason that Respondent invokes to establish prejudice is true in every temporary 

reinstatement case and cannot constitute actual prejudice. As the Commission recently stated: 

Under the Mine Act, if a mine operator has a duty to reinstate a miner, the operator must 

continue to fulfill that obligation during the period prior to a reinstatement hearing. 

Temporary reinstatement is an essential protection for miners, and Congress intended 

employers to bear the proportionately greater burden of risk in temporary reinstatement 

proceedings. 

Sec’y of Labor obo James McGoughran v. Lehigh Cement Co., LLC, 42 FMSHRC 467, 471 

(July 2020). Insofar as Respondent is arguing that it is prejudiced because it is paying 

Complainant while not receiving any labor in return, this too cannot constitute prejudice 

43 FMSHRC Page 473
because Respondent chose temporary economic reinstatement in lieu of temporary 

reinstatement.1 

The second reason that Respondent advances to establish prejudice must also fail as it is 

too speculative at this time. The Secretary’s inability to provide at present a date for the end of 

its investigation is not proof that it will proceed indefinitely. Indeed, if the Secretary’s 

investigation drags on for too long without good reason, and the Respondent can show actual 

prejudice at that time, the undersigned will consider a renewal of this Motion with updated facts 

and arguments However, that moment has not yet arrived.

The Respondent further suggests that the undersigned toll the Temporary Economic 

Reinstatement pending completion of the investigation. This option is simply not permissible 

under existing Commission caselaw, although the undersigned is sympathetic to this alternative. 

In a recent decision, the Commission held that a judge abused her discretion when she tolled a 

temporary reinstatement due to technical difficulties that led to delays in the hearing. Lehigh 

Cement, 42 FMSHRC 467. In reversing the judge, the Commission succinctly outlined the 

parameters of when a judge should toll temporary reinstatement: 

The Commission has recognized that the occurrence of certain events may toll an 

operator's temporary reinstatement obligation. The types of “events” which may justify 

tolling are those which would affect the availability of relevant work at the mine for the 

miner at issue, such as a layoff due to business contraction. See Sec'y of Labor on behalf 

of Gatlin v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1054-56 (Oct. 2009) (finding 

the Judge erred in failing to consider “changes that occur at the mine” and explaining 

that the operator must show that work was unavailable for the discriminatee); Sec'y of 

Labor on behalf of Anderson v. A&G Coal Corp., 39 FMSHRC 315, 319-20 (Feb. 2017) 

(finding tolling inappropriate where the miner may not have properly been included in 

the layoff). The purpose of temporary reinstatement is to provide the miner with an 

income through a return to work until the complaint is resolved. North Fork, 33 

FMSHRC at 592. The obligation to temporarily reinstate may logically be tolled when 

work at the mine is no longer available for the relevant miner. 

Id. at 470. The Commission explicitly rejected respondent’s arguments that tolling was justified 

by factors other than availability of work at the mine, and also rejected the Judge’s justification 

for tolling due to economic harm to the operator and unjust enrichment of the miner. Id. at n. 4, 

5. 

WHEREFORE, the Respondent’s Motion to Dissolve Order Granting Joint Motion to 

Approve Temporary Economic Reinstatement Motion and Agreement is DENIED, WITHOUT 

PREJUDICE. 

1

 The Respondent is free to move for temporary economic reinstatement in lieu of 

economic reinstatement. See Sec’y of Labor obo Dustin Rodriguez v. C.R. Meyer and Sons Co., 

35 FMSHRC 811, 813-814 (April 2013) (“The economic cost it bears ... can be mitigated by 

making use of [the miner’s] services.”) 

43 FMSHRC Page 474
 It is FURTHER ORDERED that the Secretary shall provide to the undersigned a 

detailed status update on the investigation and when it is expected to be completed every 21 

days until a determination has been made or a new motion filed by Respondent Prairie State. 

/s/ Thomas McCarthy 

Thomas McCarthy 

Administrative Law Judge 

Distribution: (Email) 

Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn 

Street, Rm. 844, Chicago, IL 60604; dunne.suzanne@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 Wolfson, Esq., Fisher Phillips LLP, Six PPG Place, Suite #830, Pittsburgh, PA 15222; 

awolfson@fisherphillips.com 

43 FMSHRC Page 475