**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

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| SECRETARY OF  LABOR,

  MINE SAFETY  AND HEALTH        

  ADMINISTRATION  (MSHA)

  on behalf  of JUAN SMITHERMAN

                        v.

 

WARRIOR MET  COAL MINING, LLC                                     | :

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Docket No. SE  2021-0153-D

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BEFORE:  Jordan, Chair; Althen and Rajkovich, Commissioners[1]

**DECISION**

 

BYTHE COMMISSION: 

 

            Thisproceeding arises from a discrimination complaint filed by the Secretary ofLabor on behalf of Juan Smitherman, pursuant to section 105(c) of the FederalMine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2018) (“Act” or “MineAct”).[2]The Secretary alleges Smitherman was terminated for raising a ventilation safetycomplaint, while Warrior Met Coal Mining, LLC (“Warrior Met”) claims the minerwas discharged for violating work rules. 

 

TheAdministrative Law Judge found that Smitherman had engaged in protectedactivity, that his subsequent termination was motivated by that protectedactivity, and that Warrior Met’s alleged business justification was pretextual.44 FMSHRC 72, 97-99 (Feb. 2022) (ALJ). The Judge issued a decision findingdiscrimination and assessing a civil penalty, and a subsequent order onadditional remedies. *Id.*; April 25, 2022 Order. On appeal, Warrior Metchallenges the Judge’s findings of protected activity and improper motivation,and claims the Judge failed to consider the operator’s affirmative defense. 

 

            Forthe reasons below, we affirm the Judge’s decision. We conclude that substantialevidence supports the Judge’s findings that Secretary established a prima faciecase and that Warrior Met’s affirmative defense was pretextual. 

 

**I.     **** **

** **

**Factual and Procedural Background**

** **

**A.   ****FactualBackground**

 

*a.**General Background and Early Incidents*

            At the time of the relevantevents, Juan Smitherman was a roof bolter on the Owl Shift (11:00 p.m. to 7:00 a.m.)at Warrior Met’s No. 4 Mine in Brookwood, Alabama. Section Foreman ZacharySalyers became Smitherman’s supervisor in January 2021. I:129.[3]

            Smitherman andSalyers had at least one safety-related dispute prior to the key events.  Inearly February 2021, they had a disagreement as to whether dust bags wererequired for roof bolters.[4]Smitherman refused to work without dust bags, and Salyers ultimately providedthem. Smitherman testified that Salyers pushed him to run the roof bolterwithout a dust bag, which Salyers contested. I:42-46, 130-33, 251-52; II:131. 

            Smitherman testifiedto three additional incidents. First, he related seeing Salyers walk pastminers cutting without a curtain. He asked Salyers about it and Salyers said hehad not noticed. Smitherman responded, “I know you saw them,” Salyers asked whySmitherman had “a problem with everything,” and it “got loud.” I:138-39. Smithermanalso recalled another incident where Salyers denied knowing that a curtain wasdown and a third incident where he accused Salyers of not properly dusting anentry. I:140-43. Salyers claims he and Smitherman had no safety-related disagreementsother than the dust bag issue. I:48; II:132.

*b.**February 28th Owl Shift – Fly Pad VentilationComplaint*

During theFebruary 28thOwl Shift, Smitherman decided to walk by the next faceand saw that no drop board or fly pads had been installed.[5] He hung adrop board then went to lunch. When he returned, the fly pads still had notbeen installed and the other roof bolters on the shift (Jonathan Banks andSteven Volts) had started bolting. Smitherman told Banks and Volts that theywere bolting without proper ventilation and needed to stop. They toldSmitherman they would find Salyers and see what he wanted them to do.[6] Banks andVolts informed Salyers of the issue, and he had the ventilation controls inplace within an hour. I:52-53, 144-49, 258. 

Smitherman andSalyers disagreed on the content of Banks and Volts’ conversation with Salyers.Salyers claimed they did not mention Smitherman. I:53; II:139. Smitherman was notpresent but testified that Banks and Volts recounted the conversation to him. Accordingto Smitherman, they told Salyers “what [Smitherman] had said,” that Smithermanrefused to bolt without proper ventilation, and that they would not continue tobolt because Smitherman would “tell on them.” I:150-51, 257. When interviewedby MSHA Supervisory Special Investigator Thomas O’Donnell, Volts stated that hedid not mention Smitherman, and Banks said he could not remember. II: 69.

*c.**March1st Owl Shift - Transfer Request*

Before the startof the March 1st Owl Shift, Smitherman told Salyers that he wanted to transferto a different section.[7]Smitherman did not explicitly**identify a reason for his request, andSalyers did not ask. I:153-54, 261-62; II:141, 172. Smitherman claimed he toldSalyers “I can’t be up there with them doing what they did the day before,” andassumed Salyers knew he meant the fly pad issue because there had not been anyother serious incidents the previous shift. I:154, 262-63. Salyers claimsSmitherman made no mention of “what happened the day before,” and that he hadno idea why Smitherman wanted to be moved. I:54, 96; II:142, 172.

Salyers raisedSmitherman’s transfer request with his supervisor, who directed Salyers to reassignSmitherman to the Lo-Trac. I:54-55; II:141-42. Salyers testified that Smithermanwas reassigned because the usual Lo-Trac operator was absent. II:143. Smithermanconceded that the usual operator was absent and that he had relevant experiencebut testified that running the   Lo-Trac is usually assigned to the servicecrew or a junior miner. Smitherman felt he had been reassigned because heslowed production when he stopped Banks and Volts from bolting but conceded hedid not know for certain. I:158-62, 268-69.

*d.**March 1st Owl Shift – Lo-Trac Work*

            Smitherman’s dutiesthat night included bringing up some pallets of block and a bundle of waterline and unloading supply cars. Smitherman claims Salyers also ordered him tobring up and load supplies for the roof bolter, though Salyers contests this. I:158,162, 174, 271, 278-79; II: 149-50, 153.

            According toSmitherman, he had a busy shift. He stocked the roof bolter, brought uppallets, unloaded supply cars, looked (unsuccessfully) for the water line, andbrought up a rock duster at the request of the maintenance foreman. I:162-63,174, 176, 280. He also testified to various complications such as gradingissues that made it difficult to maneuver the Lo-Trac and had to be addressed,slowing his assigned work. I:164-65, 302-03. Finally, Smitherman stated that therock duster tipped over and broke the pallet it was sitting on, so he had towrestle the rock duster onto the Lo-Trac, take it to a new pallet, then wrestleit off the Lo-Trac onto the pallet, at which point (around 6:00a.m.) he took arest break in the supply hole. I:167-68, 178. 

            Salyers foundSmitherman and asked after his progress during his 3:00 a.m. lunchbreak, andagain (as discussed further below) around 6:00 a.m. in the supply hole. Salyerstestified that he was not pleased with Smitherman’s progress at either point,though he only said so during the 6:00 a.m. interaction. I:60-66, 168, 271, 282;II:154-58. Smitherman concedes that during these interactions he did not tellSalyers of the difficulties he encountered. I:270-73; II:155. 

            Smitherman testifiedthat by the end of the shift he had finished bringing up the pallets anddelivered everything except the water line, which he could not find. I:174,182, 299, 305. Conversely, Salyers claims Smitherman completed none of hisassigned tasks because he had only brought up some of the pallets (to the wronglocation) and had not found the water pipes. I:60-63, II:154-56. 

*e.**March1st Owl Shift - Supply Hole Confrontation*

Salyers claimsthat, on March 2 at approximately 6:00 a.m., he found Smitherman in the supplyhole, slumped over with the machine off, his hardhat and glasses off, and hiscap light off. Salyers claims he shined a light in Smitherman’s eyes with noresponse, moved to within twenty feet and called Smitherman’s name, which “startled”him. Salyers concluded that Smitherman had been sleeping. II:155-57.  

Smitherman claimshe was not asleep and was only taking a break after wrestling with the rockduster. He explained that he turned off the Lo-Trac because the supply hole hadpoor circulation and the heat and exhaust fumes would have been unpleasant. Hedenied taking off his headlamp or turning off his light and made no mention ofbeing startled. I:167-68, 179-81. 

The outline ofthe ensuing conversation is uncontested: Salyers asked Smitherman what he wasdoing, and Smitherman said he was taking a break. Salyers asked Smitherman whyhe hadn’t finished more of his work and threatened to write him up (withoutspecifying the charge), and Smitherman told Salyers to “do what he had to do.” I:168;II:158.**However, the accounts vary as to specifics and tone. 

According toSalyers, when Smitherman said he was taking a break, Salyers told Smitherman hehad already had his lunch break and asked why he hadn’t gotten anything done. Smithermanresponded, “I told you I didn’t want to work for you.” At that point, Salyerstold Smitherman the transfer hadn’t been his decision and he was going to writehim up. II:155-58.**

According toSmitherman, Salyers asked why he had not brought up all the supplies, and Smithermansaid he was “not done.” Salyers started yelling and threatened to writeSmitherman up. Smitherman claims Salyers’ surprise at his lack of progress was “nonsense”because Salyers had seen Smitherman working several times before lunch and hadassigned him additional tasks such as loading the roof bolter. BecauseSmitherman believed Salyers was just “messing with [him],” he told Salyers to “dowhat you got to do.” I:168-69, 282. Smitherman claims he tried to explaineverything that happened during the shift, but Salyers talked over him. I:300. 

Shortly after,Salyers informed his supervisor that Smitherman had been sleeping. The issuewas passed on to mine manager Chris Thielen, who asked HR manager SherrySterling and general mine foreman Jason Lee to meet with the miners involved. I:35-36;II:162, 188, 271. 

*f. **SubsequentInvestigation and Adverse Action*

Sterlingtestified that her normal disciplinary investigation process involves speakingwith witnesses, getting a written statement if the issue is sufficientlycomplex, and making credibility determinations. She does not normally take notesor issue reports. Disciplinary decisions are made by the mine manager (Thielen)with Sterling’s assistance. II:179-84, 224-25.

Sterling and Leeinterviewed Smitherman and Salyers after the end of the March 1st owl shift. Theymet with Smitherman first. Sterling claims Smitherman denied falling asleep butconceded that he had not completed his assigned work. Smitherman gave Sterlingthe names of two miners he claimed had seen him working shortly before 6:00 a.m.,expressed unhappiness with the safety culture at the mine, and (either duringthe interview or a later phone call) informed Sterling that people had beenbolting without proper ventilation. I:184, 187-89, 192, 208, 212; II:188, 193. Shedid not speak with Smitherman again until the union meeting. II:209.

Sterling and Leenext met with Salyers, who told them he had found Smitherman “slumped over withhis lights off . . . asleep, and that he didn’t complete [his] assignments.” II:189-90.They asked Salyers to give a written statement, which provided a similardescription but did not use the word “sleeping.” I:77. Sterling claims sheasked for a written statement from Salyers (but not Smitherman) because Salyers’allegation was “detailed” while Smitherman’s account was “simple”—he was notsleeping and did not complete his tasks. II:190, 224-25. Salyers had no furtherinvolvement other than a brief call with a union representative. I:98.

Smitherman was suspendedpending investigation. II:191-92. Sterling and Thielen then conducted variousinterviews. They spoke with the two miners Smitherman claimed had seen himworking: according to Sterling they said they had not seen Smitherman thatshift, while according to Thielen they said they saw someone running theLo-Trac and assumed it was Smitherman. Sterling and Thielen also asked Banksabout the fly pad incident, and asked others on the section what they thoughtof Salyers. II:18-19, 26, 193-97, 201-04, 274-76, 280.

Sterling andThielen also reviewed Smitherman’s personnel file and discovered that he hadbeen suspended in 2018 for sleeping (dozing near the end of an owl shift). I:122,127-28; II:197. The resulting disciplinary agreement stated that “any furtherviolations of work rules . . . will result in immediate discharge.” Gov. Ex.14.

On March 8,Smitherman was issued a 5-day suspension with intent to discharge. Gov. Ex. 4. Therelevant paperwork lists a violation of Work Rule 1 (wasting time, loitering,neglect of duties) and a violation of Work Rule 5 (sleeping on the premises).  

Thielen andSterling claimed that the loafing violation was uncontested because Smithermanconceded he had not completed his assigned tasks. II: 221, 242, 281. Specifically,Smitherman was disciplined for not working while tasks remained undone, i.e., takingan “unauthorized break.” I:192; II:230, 281. Sterling testified that minersshould not take a break before completing their assignments. However, she wasunable to point to a written policy on breaks and could not recall any priordiscipline for taking a rest break. II:227-32. Smitherman testified that he hadnever heard of an unauthorized break, never had to request permission for abreak, or heard of any miner previously being disciplined for an unauthorizedbreak. I:192-94.

Sterling andThielen found the sleeping violation based on Salyers’ account and Smitherman’sprevious suspension for sleeping. II:284-86. Sterling explained that she choseto believe Salyers’ version of events because she found Smitherman to beuntruthful, based on the two miners’ failure to confirm that they had seenSmitherman working. II:243-44, 249-50. 

Thielen,Sterling, and Smitherman met with union representatives on March 15, 2021, afterwhich Thielen upheld his decision to discharge Smitherman. II:210-11.

**B.   ****Judge’sDecision and Arguments on Appeal**

The Judgeanalyzed this matter under the Commission’s traditional *Pasula-Robinette*test,in which a miner establishes a prima facie case of discrimination by showingthat he engaged in protected activity and was subject to an adverse action atleast partially motivated by that protected activity, while operators maydefend affirmatively by proving that the adverse action was also motivated bythe miner’s unprotected activity and would have been taken for the unprotectedactivity alone.[8]*E.g.*,***Sec’y of Labor on behalf of Riordanv. Knox Creek Coal Corp.*, 38 FMSHRC 1914, 1919, 1923 (Aug.2016). Neither party challenges the application of this**test. Op. Br. at21; Sec’y Br. at 3 n.1.  

The Judge foundthat Smitherman engaged in protected activity primarily by raising the fly pad safetycomplaint during the February 28th owl shift. 44 FMSHRC at 97. Although thecomplaint was conveyed by other miners, the Judge found that Salyers made the “logicalconnection” to Smitherman given their history of safety disputes, the fact thatSmitherman was working with the other roof bolters, and the coincidence in timebetween the complaint and Smitherman’s transfer request. *Id.* at 73, 81, 98.The Judge also found a causal nexus between the complaint and Smitherman’stermination, noting Salyers’ knowledge of the complaint, the proximity in timebetween the “core events,” and indicators of hostility. *Id.* at 98.

The Judgerejected Warrior Met’s alleged business justification–that Smitherman wasterminated for violating work rules—as pretextual. Procedurally, the Judge foundthe operator’s investigation was cursory, superficial and biased. *Id.* at99. Substantively, he found that the allegations were ambiguous and notsupported by the record. *Id.* at 84, 87, 91, 93, 97.

The Judge founda section 105(c) violation, assessed a $20,000 civil penalty, and orderedbackpay for the period between Smitherman’s suspension and his temporaryreinstatement and reimbursement of Smitherman’s 401(k) early withdrawal fees. *Id.*at 100; April 25, 2022 Order. 

            On appeal, WarriorMet challenges the Judge’s findings of protected activity, causal nexus, andpretext.[9]The operator claims Smitherman never made a safety complaint to Salyers aboutthe fly pads (either directly or indirectly), challenges the Judge’s findings asto knowledge and animus, and claims that the disciplinary investigation had areasonable basis for concluding that Smitherman was sleeping and loafing. 

**II.  **** **

** **

**Disposition**

** **

The Judge found that Smithermanengaged in protected activity, that the protected activity motivated histermination, and that Warrior Met’s business justification was pretextual. AJudge’s factual findings in the context of a discrimination proceeding arereviewed under the substantial evidence standard. *E.g.*, *Sec’y ofLabor on behalf of Knotts v. Tanglewood Energy, Inc.*, 19 FMSHRC 822, 837(May 1997). “Substantial evidence” means “such relevant evidence as areasonable mind might accept as adequate to support [the judge’s] conclusion.” *Rochester& Pittsburgh Coal Co.*, 11 FMSHRC 2159, 2163 (November 1989)(quoting *Consolidated Edison Co. v. NLRB*, 305 U.S. 197, 229(1938)). As discussed below, substantial evidence in the record supports hisfindings of protected activity, improper motivation and pretext. Accordingly,we affirm the Judge’s conclusion that discrimination occurred. 

 

**A.   ****Substantial evidence supports the Judge’sfinding of protected activity.**

TheJudge found that Smitherman engaged in protected activity by raising theFebruary 28th fly pad complaint.[10]44 FMSHRC at 97. As a preliminary matter, the ventilation issue reached Salyersindirectly, through Banks and Volts. I:150, 260-61. The Commission has founddiscrimination where an operator mistakenly believed a miner had engaged inprotected activity. *Moses v. Whitley Development Corp.*, 4 FMSHRC 1475,1480 (Aug. 1982). Applying the same framework, protected activity here turns onwhether Salyers *believed***Smitherman was involved in raising thecomplaint.

 

TheJudge discredited Salyers’ claim that he was unaware of Smitherman’s involvementin the ventilation complaint.[11]Noting the two men’s history of friction and Salyer’s awareness that Smithermanwas on the section with Banks and Volts that shift, the Judge concluded thatSalyers “made the logical connection between Smitherman and his fellow bolters’complaints.” 44 FMSHRC at 73. In other words, the Judge inferred that Salyersbelieved Smitherman was involved in raising the ventilation issue becauseSalyers was aware Smitherman had both the propensity and clear opportunity todo so. 

 

Elementsof a prima facie case may be sustained by reasonable inferences drawn from therecord. *Con-Ag Inc. v. Sec’y of Labor*, 897 F.3d 693, 700 (6th Cir.2018). Such inferences are permissible provided they are inherently reasonableand there is a logical and rational connection between the evidentiary factsand the ultimate fact inferred. *Mid-Continent Res., Inc.*, 6 FMSHRC 1132,1138 (May 1984). 

 

Here,the record clearly establishes the underlying evidentiary facts. Salyersconceded that he and Smitherman had at least one prior disagreement regardingdust bags, and the Judge reasonably credited Smitherman’s testimony regardingthree additional incidents between the two men.[12] I:42-48; 44FMSHRC at 80. Salyers also testified that he assigned Smitherman to assistBanks and Volts as the third “bolt man” on the February 28th owl shift. II:133.In sum, the record clearly shows that three roof bolters were working togetheron a shift, two of them raised a safety issue with their supervisor, the third roofbolter had a history of raising safety issues, and the supervisor was aware of allthis. Given these evidentiary facts, it was reasonable for the Judge to infer Salyers’belief in Smitherman’s involvement.

 

Therecord establishes that Salyers believed Smitherman had the predisposition and clearopportunity to be involved in the February 28th fly pad complaint. Based onthose underlying evidentiary facts, the Judge reasonably inferred Salyers’ beliefthat Smitherman was involved. Accordingly, we affirm the finding of protectedactivity. 

 

B.    Substantial evidence supports a causal connectionbetween the complaint and Smitherman’s termination.

The Commissionlooks to four indicia to establish whether an adverse action was motivated byprotected activity: (1) knowledge of the protected activity, (2) hostilitytoward the protected activity, (3) coincidence in time between the protectedactivity and the adverse action, and (4) disparate treatment of thecomplainant. *E.g.*,***Riordan*, 38FMSHRC at 1919, 1923. 

Here, the Judgefound a causal connection between Smitherman’s discharge and his fly padcomplaint based on knowledge of the protected activity, coincidence in time,and hostility. 44 FMSHRC at 98. As discussed above, substantial evidencesupports the Judge’s conclusion that Salyers knew Smitherman was involved in thecomplaint. The coincidence in time—between one day and two weeks—is also wellwithin the bounds of Commission precedent.[13]Finally, the record clearly indicates that at least some degree of safety-relatedhostility existed: Salyers and Smitherman’s prior disagreement regarding dustbags is uncontested, and the Judge reasonably credited Smitherman’s account ofother safety-related disputes, including a ventilation-related confrontationthat “got loud.” *See supra*pp. 8, 8 n.12; I:138-40.

The Judge also pointsto two other potential indicators of hostility: Smitherman’s reassignment fromroof bolter to Lo-Trac operator, and the confrontation in the supply hole.   44FMSHRC at 98; I:160-61, 168-69.

The recordclearly establishes sufficient evidence to support findings on knowledge,coincidence in time, and a degree of hostility. The Commission has recognizedthat a coincidence in time between protected activity and an adverse action mayalone be sufficient to establish discriminatory intent. *E.g.*,*Pendleyv. Fed. Mine Safety & Health Review Comm’n*, 601 F.3d 417, 427-28 (6thCir. 2010). Accordingly, substantial evidence supports the Judge’s finding ofimproper motivation. 

**C.   ****Substantial evidence supports the Judge’sfinding of pretext for the affirmative defense.**

Warrior Met couldhave established an affirmative defense by showing that Smitherman’s terminationwas also motivated by a belief that Smitherman had engaged in unprotectedactivity, and that he would have been terminated for that unprotected activityalone. *E.g.*,*Knox Creek*, 38 FMSHRC at 1919; *Pendley*, 601F.3d at 426. Warrior Met claims Smitherman was legitimately discharged forviolating work rules against sleeping and loafing. Smitherman’s 2018last-chance agreement clearly required his discharge in the event of a workrule violation. I:287; Gov. Ex. P14. Accordingly, the question is whether thealleged work rule violations credibly factored into Warrior Met’s motivation,or whether the proffered business justification was pretextual. *See Chacon*,3 FMSHRC at 2516.

 

Substantialevidence supports the Judge’s finding of pretext.[14] Two elementsof the record particularly support this finding. First, as the Judge notes, thereis a lack of clarity regarding the loafing charge. 44 FMSHRC at 93, 99, 99n.23. The Commission has found pretext where a rule is applied “in a mannerdeliberately calculated to render compliance difficult or impossible.” *Sec’yon behalf of Price v. Jim Walter Res., Inc.*, 12 FMSHRC 1521, 1534 (Aug. 1990).Here, Smitherman was allegedly discharged for taking an “unauthorized break”before completing his tasks. I:192; II:277, 281, 287. However, the record showsthis concept of an “unauthorized break” was not clearly or consistently applied.Sterling testified that employees should seek permission before taking a “breather,”but that restroom and water breaks were permitted. She could not explain why onlysome breaks were permitted, conceded there was no written policy on breaks, andcould not recall discharging any miner for taking a break. II:227-32. Smithermanhad never previously heard of an unauthorized break or heard of other minersbeing discharged for taking a break. I:192-94. Without a policy or history ofenforcement, Smitherman had no guidance as to what constituted an “unauthorizedbreak.” 

Second, aconflict between Sterling and Thielen’s testimony seriously erodes thelegitimacy of the sleeping charge. Sterling testified that she chose to believeSalyers’ account (Smitherman was sleeping) over Smitherman’s (he was not) becauseSmitherman was untruthful on a related matter: he claimed two other miners sawhim working shortly before Salyers found him in the supply hole, but they deniedit when interviewed by Sterling and Thielen. II:243-51. Effectively, Sterling’sconclusion that Smitherman violated Work Rule 5 depends on the two miners’statement that they *did not see Smitherman**that shift*, because itconvinced her to credit Salyers’ version of events.[15]

According toThielen, however, the miners claimed they saw someone operating the  Lo-Trac *andassumed it was Smitherman*. II:275-76, 280, 295. Based on Thielen’stestimony, Sterling loses her justification for crediting Salyers’ sleepingallegation. As HR manager and mine manager, Sterling and Thielen were the twopeople responsible for deciding whether Smitherman had violated work rules. Yettheir testimony regarding a *key justification* for finding the violationof Work Rule 5 is incompatible. This inconsistency supports the finding ofpretext. 

TheJudge took issue with other aspects of Warrior Met’s investigatory process. Whilethese additional factors do not necessarily establish pretext, neither do theycontradict a finding of pretext.[16]

Ultimately, as discussedabove, two key elements clearly establish pretext: the vagueness of the“unauthorized break” charge, and the inconsistencies in critical testimonyregarding Sterling’s justification for concluding that Smitherman was sleeping.The record contains sufficient evidence to support the Judge’s finding ofpretext. Accordingly, the Judge’s rejection of Warrior Met’s affirmativedefense is affirmed.

**III.         **** **

** **

**Conclusion**

Forthe reasons stated above, substantial evidence supports the Judge’s finding of discrimination.Accordingly, we affirm the Judge’s decision. 

 

 

 

/s/ Mary Lu Jordan

                                                                                    MaryLu Jordan, Chair

 

 

 

 

/s/ William I. Althen

William I. Althen,Commissioner

 

 

 

 

/s/ Marco M. Rajkovich,Jr.

Marco M. Rajkovich, Jr.,Commissioner

 

 

 

Distribution:

 

Brock Phillips

Maynard Cooper& Gale, P.C.

1901 SixthAvenue North

1700 Regions /Harbert Plaza

Birmingham, AL35203

bphillips@maynardcooper.com

 

T. Hill Pickens

United MineWorkers of America

18354 QuanticoGateway Drive, Suite 200

Triangle, VA22172

hpickens@umwa.org

 

Juan Smitherman

924 Aster Place

Helena,AL 35022

juansmitherman@bellsouth.net

 

SusannahM. Maltz, Esq.

Office of theSolicitor

U.S. Departmentof Labor

201 12th St.South, Suite 401

Arlington, VA22202-5450

maltz.susannah.m@dol.gov

 

EmilyToler-Scott, Esq.

Office of theSolicitor

U.S. Departmentof Labor

201 12th St.South, Suite 401

Arlington, VA22202-5450

Scott.Emily.T@dol.gov

 

AprilNelson, Esq.

AssociateSolicitor

Office of theSolicitor

U.S. Departmentof Labor

Division ofMine Safety and Health

201 12th StreetSouth, Suite 401

Arlington, VA22202

Nelson.April@dol.gov

 

AdministrativeLaw Judge William B. Moran

Federal MineSafety & Health Review Commission

1331Pennsylvania Ave. N.W., Suite 520N

Washington, DC20004-1710

wmoran@fmshrc.gov

 

ChiefAdministrative Law Judge Glynn Voisin

Federal MineSafety & Health Review Commission

1331Pennsylvania Ave. N.W., Suite 520N

Washington, DC20004-1710

GVoisin@fmshrc.gov

----

[1] Commissioner Timothy J. Baker has recused himselffrom this matter. 

 

[2] Section 105(c)(1) of the Act provides in relevantpart:

 

No person shall discharge or in any mannerdiscriminate against or cause to be discharged or cause discrimination against. . . any miner . . . because such miner . . . has filed or made a complaintunder or related to this Act, including a complaint notifying the operator . .. of an alleged danger or safety or health violation in a coal or other mine .. . . 

 

30 U.S.C. § 815(c)(1). Section105(c)(2) provides that the Secretary shall file a complaint with the Commissionon behalf of a miner if she determines that section 105(c)(1) has been violated.

[3] Transcript volumes one and two are cited as “I:--”and “II:--,” respectively.

 

[4] Smithermandescribed dust bags as akin to a vacuum cleaner bag for the roof bolter’s dustfilter. I:131-32.

 

[5] Fly pads aretemporary curtains that direct air while allowing people and equipment to passthrough, akin to the plastic sheeting in industrial freezers. Fly pads are hungfrom a drop board, which is a long piece of wood mounted to the ceiling. I:49-51,145.

[6] Smitherman also looked for Salyers to discuss the flypad issue but did not find him. I:150. Smitherman never directly mentioned thefly pad issue to Salyers. I:260.

 

[7] Smitherman had asked his shift foreman for a transfera few days earlier. I:155-56. 

[8]*Sec’y ofLabor on behalf of Pasula v. Consolidation Coal Co.*, 2 FMSHRC 2786 (Oct.1980), *rev’d on other grounds*, 663 F.2d 1211 (3d Cir. 1981); *Sec’yof Labor on behalf of Robinette v. United Castle Coal Co.*, 3 FMSHRC 803(Apr. 1981). The Ninth Circuit has since rejected *Pasula-Robinette* infavor of a “but-for” standard. *Thomas v. CalPortland Co*., 993 F.3d 1204(9th Cir. 2021). *Thomas*is not binding here, as Warrior Met’s No. 4 Mineis not located in the Ninth Circuit. Nevertheless, the Judge noted that hewould find discrimination under either standard. 44 FMSHRC at 97. 

[9] Warrior Met also briefly challenges aspects of theJudge’s order regarding remedies in a footnote of its petition fordiscretionary review, without substantive discussion in either the petition orsubsequent briefing. PDR at 32 n.10. Eachissue raised in a petition must be “supported by detailed citations to therecord . . . and by statutes, regulations, or principal authorities reliedupon.” 30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(d). We find that WarriorMet’s remedies arguments have been abandoned and decline to address them. *See**RNS Services, Inc.*, 18 FMSHRC 523, 526 n.6 (Apr. 1996), *aff’d*,**115 F.3d 182 (3d Cir. 1997); *Asarco Mining Co.*,**15 FMSHRC1303, 1304 n.3 (July 1993).

 

[10] TheSecretary claims the earlier dust bag dispute and Smitherman’s transfer requestindependently constitute protected activity. Sec’y Resp. at 18-19. TheCommission has held that protected activity is not limited to the four cornersof the initial**complaint, noting the Secretary’s authority to addressissues uncovered during the investigation. *Sec’y on behalf of Dixon v.Pontiki Coal Corp.*, 19 FMSHRC 1009, 1016-18 (June 1997). Here,however, the prior dispute and transfer request were not mentioned in eitherthe initial complaint *or* MSHA’s post-investigatory findings. Regardless,we affirm the Judge’s finding that the “core charge” of the ventilationcomplaint is sufficient to establish protected activity. 44 FMSHRC at 97-98, 98n.20.  

[11]The Judge generally did not find Salyers credible, noting inconsistencies inhis testimony and a “reluctance to answer straightforward questions.” 44 FMSHRCat 75. Judges’ credibility determinations are entitled to great weight and areonly overturned for compelling reasons. *E.g.*, *KenAmerican Res., Inc.*,42 FMSHRC 1, 3-6 (Jan. 2020) *aff’d*, 33 F.4th 884, 891-92 (6th Cir. 2022).

[12] The Judge noted that Smitherman described theincidents “in detail and with particularity.” 44 FMSHRC at 80. While Smithermandid not provide dates or locations for these additional incidents, he didrecall the relevant conversations in moderate detail. I:138-41. 

[13] The fly pad complaint occurred on the February 28thowl shift, the reassignment and supply hole confrontation occurred during theMarch 1 owl shift, and the decision to terminate was made on March 8. TheCommission regularly finds a coincidence in time when the protected activityand adverse action are separated by a longer period, even a few *months*apart. *E.g.**, Pero v. CyprusPlateau Mining Corp.*, 22 FMSHRC 1361, 1365 (Dec. 2000); *Riordan*, 38FMSHRC at 1924.

 

[14] Warrior Metclaims the Judge failed to analyze its affirmative defense. Op. Br. at 27-28. TheJudge calls Warrior Met’s argument a “rebuttal” but his analysis is consistentwith an affirmative defense. *See*44 FMSHRC at 99. 

 

[15] The Judgeappears to have fundamentally disagreed with Sterling’s credibility-basedapproach, instead focusing on whether there was sufficient evidence to supportSalyers’ claims. II:216-17, 243-51; 44 FMSHRC at 91, 94-95. An investigation isnot pretextual simply because a Judge disagrees with the investigatoryapproach. *See Chacon*, 3 FMSHRC at 2517. Insofar as the Judge foundpretext because he would have required Salyers to prove hisallegations rather than deciding the issue based on credibility, the Judgeerred by imposing his own judgment as to the appropriate burden of proof. However,as discussed *supra*, there is reason to believe this *particular*credibility determination was pretextual.

 

[16]TheJudge took issue with the operator’s investigation, finding it cursory andsuperficial. 44 FMSHRC at 99. Certainly, the quality of anoperator’s investigation may be considered in a pretext analysis. In this case,the record suggests that the operator followed its normal processes, and it isunclear the degree to which the cursory nature of *this*investigationsupports a finding of pretext. *Cf.**Con-Ag*, 897 F.3d at 704. TheJudge also found evidence of bias in Sterling’s search of Smitherman’spersonnel file. 44 FMSHRC at 91, 93, 99, 99 n.22. It is not improper for aninvestigator to check the file of someone under disciplinary investigation. Finally,in taking issue with Warrior Met’s conclusion that Smitherman was loafingand/or sleeping, the Judge implied Warrior Met had the burden of showingthat unprotected activity *in fact occurred*, and Warrior Met failed to doso. 44 FMSHRC at 84, 87. In the affirmative defense context, the Commissionlooks to the operator’s actual belief at the time rather than the ultimatetruth of the alleged unprotected activity. *Pendley*, 601F.3d at 426; *Chacon*, 3 FMSHRC at 2517; *Smith v. Chrysler Corp.*, 155 F.3d 799, 806 (6th Cir.1998). We find that the Judge’s additional considerations constituteharmless error at worst. *See*Fed. R. Civ. P. 61. Ultimately, given thepreponderance of evidence as discussed above, none of these issues call intoquestion the decision in this case.