1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 on behalf of ROGER COOK :

 :

v. : Docket No. WEVA 2021-0203 

 : 

ROCKWELL MINING, LLC :

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners

DECISION

BY: Rajkovich, Commissioner:

1

I.

Introduction

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

§ 801 et seq. (2018) (“Mine Act”). At issue is a Judge’s decision on April 2, 2021, granting the 

Secretary of Labor’s application for temporary reinstatement of a miner, Roger Cook. Roger 

Cook was suspended by the operator on January 21, 2021 and terminated on January 25, 2021. 

On February 1, 2021, Cook filed a discrimination complaint with the Department of Labor’s 

Mine Safety and Health Administration (“MSHA”) over his termination on January 25. Ex. S-1. 

On March 10, 2021, the Secretary filed an application for temporary reinstatement on 

behalf of Cook, pursuant to section 105(c)(2) of the Mine Act.2

 30 U.S.C. § 815(c)(2). The 

Secretary argued that Cook should be reinstated because his complaint was not frivolously 

1 Commissioner Rajkovich’s separate opinion is part of the majority on every issue 

presented on appeal. As discussed more fully on the following page, Chair Traynor and 

Commissioner Althen each write separately, concurring in part and dissenting in part with 

Commissioner Rajkovich’s opinion. 

2 Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 30 U.S.C. § 815(c)(2). 

April 23, 2021
2

brought.3 Rockwell Mining, LLC (“Rockwell”) opposed the Secretary’s application for 

temporary reinstatement, arguing that Cook’s complaint was frivolous.

On March 29, 2021, the Judge presided over a hearing in this matter. On April 2, 2021, 

the Judge issued a decision granting the Secretary’s application for temporary reinstatement and 

directing temporary reinstatement of the miner. 43 FMSHRC ___, slip op. at 1, No. WEVA 

2021-0203 (Apr. 2, 2021) (ALJ) (“ALJ Dec.”). The Judge applied the not frivolously brought 

standard to Cook’s claim that he had engaged in protected activity that had motivated the adverse 

actions at issue. 

On April 7, 2021, Rockwell filed a petition for review of the Judge’s temporary 

reinstatement decision. On appeal, the operator argues that the Judge erred in finding that the 

operator’s knowledge of Cook’s protected activity and temporal proximity between the protected 

activity and the adverse actions were sufficient to establish a non-frivolous issue of 

discriminatory motivation. In addition, the operator argues that the Judge erred in declining to 

consider and weigh the operator’s evidence regarding the operator’s absence of animus and 

Cook’s unprotected misconduct. The operator proposes a new “rule” which would require 

Judges to consider and analyze all evidence relating to a motivational nexus between a miner’s

protected activity and the adverse actions. Finally, the operator argues that prior to the hearing, 

the Judge erroneously excluded evidence of Cook’s unprotected misconduct, denying the 

operator due process. 

Upon review, a majority of Commissioners affirms the Judge’s decision, while a 

separate majority affirms language in Sec’y of Labor on behalf of Shaffer v. Marion Cty. Coal 

Co., 40 FMSHRC 39, 47 (Feb. 2018) as the law of the Commission. 

Commissioner Rajkovich finds error in the Judge’s decision to exclude evidence;

however, he finds such error harmless and forms a majority to affirm the Judge’s decision in 

result with Chair Traynor, and a majority to affirm language in Marion Cty. with Commissioner 

Althen. 

Chair Traynor concurs in result only with Commissioner Rajkovich. Commissioner 

Althen concurs in part and dissents in part with Commissioner Rajkovich. 

II.

Factual Background

Roger Cook was employed as a fire boss at the Eagle #3 Mine operated by Rockwell 

Mining in Wyoming County, West Virginia from March 2017 until his termination on January 

3 In her decision, the Judge considered whether there was a non-frivolous motivational 

nexus between Cook’s protected activity and two adverse actions - his suspension on January 21 

and his termination on January 25. 43 FMSHRC ___, slip op. at 4-5, No. WEVA 2021-0203 

(Apr. 2, 2021) (ALJ). Therefore, in reviewing the Judge’s decision, I will consider both adverse 

actions. 
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25, 2021. At the time of his termination on January 25, 2021, Cook was classified as a salary 

outby foreman. Prior to his suspension and termination in January 2021, Cook had expressed 

various safety related concerns to mine management. In August 2020, Cook had filed an 

accident report claiming to have suffered respiratory problems as a result of spraying gunite4

during his work during the prior February. Subsequently, in December 2020, a month prior to 

his termination, he voiced concerns about the manner of building certain stoppings in the mine. 

In January 2021, Cook expressed concern to management regarding an allegedly unsafe number 

of individuals on a man trip and informed management about a safety concern regarding a flat 

car. 

In addition, on January 20, 2021, while he was conducting an airway examination, Cook 

noticed that the ground check monitor circuit on the cathead plug for the P-70 pump had been 

bypassed. Cook discovered that someone had installed a jumper to override the ground check 

monitor circuit, a protective device. In response to this unsafe condition, Cook locked and 

tagged out the cathead and left a note in the area with the words “No monitor, had wire under 

cathead[.] Dusty Cook 1-20-21 11:04 AM Shame[,] Shame” on it. Ex. S-2. Later the same day, 

Cook informed MSHA Inspector John Stone that he had found that the cathead at issue was 

plugged in while the ground monitor circuit on the active pump was bypassed. Inspector Stone 

issued Order No. 9247364 for this condition. 

The order stated in relevant part that “[t]he Old 6 Head Return P-70 pump . . . has been in 

operation without the ground check monitor circuit working. When checked it has been 

determined and evidence indicates a jumper has been installed to bridge/override this protective 

device.” Ex. S-3. This is consistent with testimony at the temporary reinstatement hearing that

“the pump had been . . . jumped out or overrode . . . the ground run had been defeated to allow 

this pump to run in an unsafe condition.” Tr. 82.

The operator alleges that Cook engaged in misconduct at the mine a few days prior to his 

January 20 conversation with the MSHA inspector. Specifically, the operator alleges that 

between January 15 and 16, 2021, Cook knew but did not inform management that the No. 6 

scoop at the mine had an unsafe condition – a malfunctioning panic bar. In addition, the operator 

alleges that despite knowing of the defective condition, Cook instructed another miner, Charles 

Quarles, to operate the scoop on January 15.5 However, Cook disputes that he knew about the 

unsafe condition claiming that “I did not know that the panic bar wasn’t working [during the 

relevant time period].” Tr. 57, 101.

On January 21, Cook was suspended. The suspension occurred a few days after Cook’s 

alleged misconduct between January 15-16, but the day after his conversation with the MSHA

inspector. On January 25, 2021, four days after his suspension, Cook was terminated from his 

employment at the mine. On February 1, Cook filed a discrimination complaint with MSHA 

4 Gunite is generally made of cement and is sprayed on pneumatically.

5

 The operator sought to introduce a written statement from Quarles to this effect. Resp’t 

Proposed Ex. 1. The Judge refused to allow testimony on the matter and did not accept the 

proffered note into evidence. 
4

over his termination. On March 10, the Secretary filed an application for temporary 

reinstatement on behalf of Cook. 

III.

The Judge’s Decision

On March 26, a few days prior to the March 29 hearing, the Judge issued an order which 

excluded evidence relating to the operator’s allegations of Cook’s unprotected misconduct. The 

operator alleged that on January 15-16, 2021, Cook knew that the No. 6 scoop at the mine had a 

malfunctioning panic bar but failed to inform management of the issue, and failed to prevent 

another miner, Quarles, from operating the defective scoop. The operator alleges that this 

unprotected misconduct was the sole basis for Cook’s suspension and termination. However, the

Judge ruled that the proposed evidence was beyond the scope of the temporary reinstatement 

proceeding because it concerned an affirmative defense and raised issues of credibility. The 

Judge repeated this ruling in her post-hearing decision.6

 ALJ Dec. at 3 n.2.

On March 29, the Judge presided over a hearing in this matter. On April 2, the Judge 

issued a decision granting the Secretary’s application for temporary reinstatement and directed 

that Cook be reinstated. 

In her decision, the Judge found that Cook had engaged in protected activity. 

Furthermore, the Judge ruled that there was a non-frivolous issue that Cook’s protected activity 

on January 20 had motivated the adverse actions – his suspension on January 21 and his 

termination on January 25.7 The Judge found that the extremely short period of time between 

the January 20 cathead incident and Cook’s suspension and termination on January 21 and 

January 25 respectively was sufficient to establish “a temporal nexus between the protected 

activity and the adverse action[s].” ALJ Dec. at 4-5. In addition, the Judge found that because 

management witnessed Cook’s discussion with Inspector Stone regarding the cathead on January 

20, there was “a non-frivolous issue that management was aware of the [cathead] incident and 

that [the operator] had knowledge of Cook’s protected activity.” Id. at 4.

Therefore, the Judge found that the Secretary had established the operator’s knowledge of 

Cook’s protected activity and temporal proximity between the protected activity and the adverse 

actions. On this basis, the Judge found a nexus between Cook’s protected activity and the 

adverse actions sufficient to warrant reinstatement under the non-frivolous standard. 

Consequently, the Judge granted the Secretary’s application for temporary reinstatement. 

6 The operator filed a Motion to Reconsider the Judge’s March 26 Order which the Judge 

also denied. ALJ Dec. at 3 n.2. 

 

7 Although the Judge briefly mentioned other instances of protected activity, she focused

on Cook’s protected activity on January 20, 2021. On that day, Cook engaged in protected 

activity when he informed an MSHA inspector why he had locked and tagged out the cathead on 

the P-70 pump. ALJ Dec. at 4-5.
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IV.

Legal Principles

Under section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 30 U.S.C. § 815(c)(2). The Commission has applied the substantial evidence 

standard to review a Judge’s temporary reinstatement order. Sec’y of Labor on behalf of 

Williamson v. Cam Mining, LLC, 31 FMSHRC 1085, 1088 (Oct. 2009). 

The Commission has repeatedly recognized that the “scope of a temporary reinstatement 

hearing is narrow, being limited to a determination by the Judge as to whether a miner’s 

discrimination complaint is frivolously brought.” See Sec’y of Labor on behalf of Price v. Jim 

Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990). At 

a temporary reinstatement hearing, the question is whether the complaint is frivolous, “not 

whether there [was] sufficient evidence of discrimination to justify permanent reinstatement.” 

920 F.2d at 744. 

In a temporary reinstatement proceeding, the Judge should “evaluat[e] the evidence of the 

Secretary’s . . . case and determin[e] whether the miner’s complaint . . . ‘appear[ed] to have 

merit.’” Williamson, 31 FMSHRC at 1089. During a temporary reinstatement proceeding, the 

Secretary need not prove a prima facie case of discrimination but must simply prove a nonfrivolous issue of discriminatory motivation. However, it is useful to review the elements of a 

discrimination claim in order to assess whether the evidence at the temporary reinstatement stage 

meets the non-frivolous test. Id. at 1088. In order to establish a prima facie case of 

discrimination under section 105(c) of the Act, a complaining miner bears the burden of 

establishing (1) that he engaged in protected activity and (2) that the adverse action complained 

of was motivated in any part by that activity (i.e., that a motivational nexus existed between the 

protected activity and the adverse action). 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).8

The Commission has recognized that discriminatory motive may be shown by indirect 

evidence establishing a motivational nexus between the miner’s protected activities and the 

adverse actions. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510 (Nov. 1981) (citing NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965)). 

The Commission in Chacon stated that discriminatory motive can be established by 

8 In a decision issued on April 14, 2021 the United States Court of Appeals for the Ninth 

Circuit rejected the Pasula-Robinette test for violations of section 105(c). Thomas v. 

CalPortland Co., No. 20-70541 ___ F.3d ____, 2021 WL 1396753 (9th Cir. April 14, 2021). 

Here, neither party challenged the Pasula-Robinette test before the Administrative Law Judge, 

and it is not before the Commission in this decision. It should also be noted that this mine is not 

domiciled within the Ninth Circuit jurisdiction.
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circumstantial evidence of: (1) knowledge of the protected activity, (2) hostility or animus 

towards the protected activity, (3) coincidence in time between the protected activity and the 

adverse action, and (4) disparate treatment of the complainant. Id. at 2510-12. The Commission 

has held that the Secretary may establish a non-frivolous motivational nexus simply through the 

operator’s knowledge of protected activity and temporal proximity between the protected activity 

and the adverse action. Sec’y of Labor on behalf of Stahl v. A&K Earth Movers Inc., 22 

FMSHRC 323, 325-26 (Mar. 2000). 

Commission Rule 45(d) addresses procedures for temporary reinstatement hearings, 

stating that “the Secretary may limit his presentation to the testimony of the complainant. The 

respondent [operator] 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.” 29 C.F.R. § 2700.45(d). 

In contrast to a discrimination proceeding where the Judge must resolve conflicting 

evidence, the Commission has held that the Judge should not make credibility determinations 

during a temporary reinstatement proceeding. Sec’y of Labor on behalf of Billings v. Proppant 

Specialists, LLC, 33 FMSHRC 2383, 2385 (Oct. 2011). In Williamson, 31 FMSHRC at 1089, 

the Commission determined that the Judge made “credibility determinations in evaluating the 

Secretary’s prima facie case, which he clearly should not have done at [the temporary 

reinstatement stage].” And in A&K Earth Movers, 22 FMSHRC at 325-26, the Commission 

determined that during a temporary reinstatement proceeding, the Judge is not obligated to 

resolve testimonial conflicts regarding knowledge even if the operator claims that it has no 

knowledge of protected activity. In addition, the Judge should not weigh the operator’s evidence 

against the Secretary’s evidence when determining whether to grant temporary reinstatement. In 

Williamson, 31 FMSHRC at 1091, the Commission held that the Judge erroneously increased 

the Secretary’s burden in a temporary reinstatement proceeding by “weigh[ing] the operator’s 

rebuttal or affirmative defense evidence against the Secretary’s evidence of a prima facie case.” 

V.

Operator’s Petition for Review

On April 7, 2021, the operator filed a petition for review of the Judge’s temporary 

reinstatement decision. On April 13, 2021, the Secretary responded to the operator’s petition.9

In its assignments of error, the operator’s petition sets forth three alleged errors by the 

Judge. First, the operator alleges that the Judge erred in refusing to consider and weigh each 

element of nexus between the protected activity and adverse actions in determining whether the 

Secretary had met his burden of proof. The four nexus factors consist of the operator’s 

9 On April 15, 2021, the operator filed an unopposed motion with the Judge to substitute 

economic reinstatement for Cook’s actual physical reinstatement, pursuant to an agreement with 

the Secretary and Cook for such economic reinstatement. The Judge issued an order granting 

this motion on April 16, 2021. 
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knowledge of Cook’s protected activity, temporal proximity between the protected activity and 

the adverse actions, the operator’s hostility/animus towards Cook’s protected activity, and any 

disparate treatment of Cook.10

Second, the operator alleges that the Judge erred in excluding evidence of Cook’s 

unprotected misconduct. The operator alleges that between January 15-16, 2021, Cook knew but 

did not inform management that the No. 6 scoop at the mine had an unsafe condition – a 

malfunctioning panic bar, and that despite knowing of the defective condition, Cook instructed 

another miner, Charles Quarles, to operate the scoop on January 15. Resp’t Proposed Ex. 1. As 

previously noted, exhibits related to this alleged event were excluded by the Judge prior to the 

hearing. Tr. 127-28; ALJ Dec. at 3 n.2.

Third, the operator alleges that it was denied due process by the Judge’s improper 

exclusion of evidence.

A. Knowledge and Temporal Proximity 

As stated above, in a temporary reinstatement proceeding, the four elements to be 

considered in determining whether a complaint is non-frivolous are whether the operator had 

knowledge of the protected activity, whether there was a close temporal proximity between the 

protected activity and the adverse action, whether the operator had animus towards the protected 

activity, and whether the complainant suffered disparate treatment. In this case, the operator 

does not dispute that it had knowledge of Cook’s protected activity, i.e., Cook’s discussion of the 

cathead with the MSHA inspector in January 2021. In addition, the operator does not dispute 

that protected activity took place on January 20, and that Cook was suspended and terminated in 

the following days – on January 21 and January 25. 

Rockwell argues that its knowledge of the protected activity and temporal proximity 

between the protected activity and adverse actions are insufficient generally and especially in 

this case to show a motivational nexus. Regarding the specific facts presented here, the operator 

argues that its knowledge of the protected activity and temporal proximity between the protected 

activity and adverse actions are nullified by an absence of any evidence of animus towards 

Cook’s protected activity. 

However, under Commission precedent addressing temporary reinstatement, knowledge 

of protected activity and temporal proximity can be sufficient by themselves to establish a nexus 

between the protected activity and the adverse action. A&K Earth Movers, 22 FMSHRC at 325-

26. In addition, the Commission has “never held that hostility is a prerequisite to a finding that a 

10 During its discussion of this alleged error, the operator argues that its knowledge of 

Cook’s protected activity and temporal proximity between his protected activity and the adverse 

actions are insufficient to establish a non-frivolous motivational nexus, and that the Judge failed 

to consider and weigh its evidence regarding the absence of animus and Cook’s unprotected 

misconduct. Moreover, the operator proposes a rule which would require a Judge to consider all 

evidence regarding the operator’s motivation and the miner’s unprotected misconduct before 

granting temporary reinstatement. 
8

complaint is not frivolous. Rather, such evidence is but one of several circumstantial indicia of 

discriminatory intent that may be offered to show that a complaint is not frivolous.”11 Id. at 323 

n.2. Therefore, it is clear that knowledge and temporal proximity are sufficient to establish a 

non-frivolous claim of motivational nexus which is not automatically nullified by an absence of 

evidence of operator animus towards the protected activity. 

I decline to overturn our caselaw holding that knowledge and temporal proximity can be 

sufficient by themselves, in the absence of any other evidence of animus, to support a nonfrivolous motivational nexus. Therefore, I reject the operator’s argument that its knowledge of 

Cook’s protected activity and temporal proximity between Cook’s protected activity and the 

adverse actions were insufficient to demonstrate a non-frivolous claim. I conclude that the Judge 

properly found that the complaint was not frivolously brought, given the record evidence of 

operator knowledge and temporal proximity.

B. Credibility Determinations 

In a temporary reinstatement proceeding the Judge may evaluate the Secretary’s evidence 

of a motivational nexus between the protected activity and the adverse action. Williamson, 31 

FMSHRC at 1089. However, the operator goes further, arguing that the Judge must resolve 

conflicts in the evidence (i.e. make credibility determinations) during temporary reinstatement 

proceedings. 

In Williamson, 31 FMSHRC at 1089-90, and A&K Earth Movers, 22 FMSHRC at 325-

26, the Commission ruled that the Judge should not resolve conflicts in the testimonial evidence 

(i.e., make credibility determinations) during a temporary reinstatement proceeding. I decline to 

overturn our caselaw prohibiting credibility determinations in a temporary reinstatement 

proceeding. 

C. Weighing the Operator’s Evidence

In its Petition for Review, the operator proposes that the Commission enact a rule 

whereby the Judge “is required to either consider and analyze each element [regarding the 

motivational nexus] set forth in Chacon . . . as well as whether there was independent 

misconduct by the Complainant to determine whether the case is frivolous or articulate why the 

ALJ decided against considering a specific element.” Pet. for Rev. at 9. This rule would require 

the Judge to analyze (i.e., weigh) the operator’s evidence regarding the motivational nexus and 

Cook’s unprotected misconduct against the Secretary’s evidence demonstrating knowledge and 

temporal proximity. 

Commission caselaw prohibits the Judge from weighing the operator’s evidence against 

the Secretary’s evidence in a temporary reinstatement proceeding. In Williamson, 31 FMSHRC 

11 The operator analogizes this case to a Judge’s determination in Sec’y of Labor on 

behalf of Fletcher v. Frontier Kemper Constructors, Inc., 34 FMSHRC 2189 (Aug. 2012) (ALJ). 

An Administrative Law Judge’s decision is not binding on the Commission. 29 C.F.R. 

§ 2700.69(d).
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at 1091, the Commission held that “evidence that Williamson was discharged for unprotected 

activity relates to the operator’s rebuttal or affirmative defense” and that the Judge erroneously 

increased the Secretary’s burden in a temporary reinstatement proceeding by “weigh[ing] the 

operator’s rebuttal or affirmative defense evidence against the Secretary’s evidence of a prima 

facie case.” 

I emphasize that the operator’s proposed rule requires the Judge to weigh the operator’s 

evidence as would be appropriate to a final decision on the merits. I decline to overturn our 

caselaw prohibiting the Judge from weighing the operator’s evidence in a temporary 

reinstatement proceeding. Consequently, I conclude that the Judge did not err in declining to 

weigh the operator’s evidence during the temporary reinstatement proceeding. 

D. Exclusion of Evidence

As noted, the operator sought to submit evidence regarding alleged unprotected 

misconduct by Cook. However, on March 26, a few days prior to the hearing, the Judge issued 

an order excluding such evidence. 

It is clear that evidence of unprotected misconduct would relate to the adverse actions by 

providing alternative legitimate reasons for Cook’s suspension and termination. It is also clear 

that if a Judge could not consider all evidence relating to the adverse action(s), the operator 

would lack a meaningful right to “present testimony and documentary evidence in support of its 

position that the complaint was frivolously brought.” 29 C.F.R. § 2700.45(d). 

In a prior case, two Commissioners addressed this issue, finding that a temporary 

reinstatement hearing must be a full evidentiary process, and during such a proceeding a Judge 

should consider any evidence which is both relevant to the adverse action and does not require 

any credibility or value determinations. Marion Cty., 40 FMSHRC at 47 (separate opinion of 

Acting Chair Althen and Commissioner Young). The Commissioners stated: 

[A]ll evidence relating to the adverse employment action is 

relevant in a temporary reinstatement proceeding -- even that 

which seems directed to an affirmative defense or rebuttal of the 

miner’s claim. While we agree that the Judge should not make 

credibility and value determinations of the operator’s rebuttal or 

affirmative defense, if the totality of the evidence or testimony 

admits of only one conclusion, there is no conflict to resolve. 

Id.12

Under this approach – hereinafter referred to as the Marion approach – the Judge can 

only consider evidence which does not require any credibility or value determinations. 

Therefore, this approach is consistent with the limited nature of a temporary reinstatement 

12 Commissioner Althen, as set forth in his separate opinion, joins Commissioner 

Rajkovich to affirm this holding as the law of the Commission.
10

proceeding. The Marion approach also gives operators a meaningful opportunity to provide 

undisputed evidence (i.e., evidence which does not require any credibility or value 

determinations) that the complaint was frivolously brought. Therefore, it is consistent with the 

purpose of Commission Rule 45 which seeks to provide operators with a meaningful opportunity 

to present their arguments at a temporary reinstatement hearing. I hold that the Judge can 

consider evidence regarding allegations of a miner’s unprotected misconduct to determine if the 

miner has a viable case. Such evidence may not serve as a basis for denial of reinstatement if it 

requires resolution of an actual credibility determination.

Scenarios exist where there is no conflicting evidence regarding the miner’s unprotected 

misconduct, i.e., a scenario where the Judge is not presented with any credibility or value 

determinations regarding the alleged misconduct. For example, a document, which both parties 

agree is genuine, may show that the operator’s decision to fire the miner was made in response to 

the miner’s unprotected misconduct and prior to any identified protected activity. Under these 

circumstances, the Judge would not need to make any credibility or value determinations 

regarding this document. And although the document would technically relate to an affirmative 

defense, it would strongly support a contention that there was no motivational nexus between the 

protected activity and the adverse action at issue. In this scenario I would find that the Judge 

cannot only consider the uncontroverted evidence regarding the miner’s misconduct but is 

required to consider such evidence when making his temporary reinstatement determination.13

On appeal, the operator asserts that Cook engaged in unprotected misconduct. The 

operator contends that Cook failed to inform management of the malfunctioning panic bar on the 

No. 6 scoop and failed to prevent, in fact knowingly permitted, another employee, Quarles, from 

operating the scoop despite knowing of the defective condition. Therefore, Cook’s alleged 

misconduct is predicated on his knowledge of the malfunctioning panic bar. In support, the 

operator desired to offer the testimony of its mine superintendent and a note from the equipment 

operator, miner Charles Quarles, confirming Cook’s knowledge of the defect and authorization 

for its use in the defective condition.

In contrast to the operator’s allegations, Cook disputed that he knew about the unsafe 

condition on the scoop. Cook testified that “I did not know that the panic bar wasn’t working” 

during the relevant time period. Tr. 57. In order to resolve the conflicting evidence, the Judge 

would have had to make credibility determinations, which the Judge cannot do. Marion Cty., 40 

FMSHRC at 44, 47 (all four Commissioners, in their separate opinions, agreed that the Judge 

cannot make credibility determinations during a temporary reinstatement proceeding).

Given the statutory and constitutional importance of an operator’s right to a full hearing, 

the Judge erred in excluding evidence of Cook’s alleged misconduct. I believe that the proper 

approach for the Judge would have been to allow evidence of Cook’s misconduct during the 

hearing. Then, in her post-hearing decision, the Judge could have determined whether the 

13 I note that there may be other factual scenarios which similarly do not involve any 

credibility or value determinations. However, it is not necessary to consider such hypothetical 

scenarios for the purpose of this proceeding.
11

evidence required her to make any credibility or value determinations, as set forth in Marion 

Cty., at 47. 

However, as stated above, it appears to me that the conflicting evidence regarding Cook’s 

misconduct would have required the Judge to make credibility determinations. I find that even if 

the Judge had allowed such evidence of misconduct during the hearing, she would have been 

prohibited from considering it in her post-hearing decision. Therefore, because the evidentiary 

exclusion would not have affected the Judge’s post-hearing decision, I conclude that the Judge’s 

evidentiary exclusion constituted harmless error.14

E. Due Process

Lastly, the operator argues that the Judge denied it due process by characterizing the 

operator’s evidence as an affirmative defense or as an effort to dispute credibility and by 

excluding the operator’s evidence. In this regard, the operator’s due process argument does not 

find fault with any specific Commission procedure but focuses on evidence the Judge declined to 

consider. As stated above, the Judge cannot make credibility determinations in a temporary 

reinstatement proceeding. Therefore, it is unnecessary to further consider the operator’s due 

process argument.

VI.

Conclusion

For the reasons stated above, I affirm the Judge’s decision.

___________________________________

Marco M. Rajkovich, Jr., Commissioner

14 I am troubled by the Judge’s order excluding evidence of Cook’s unprotected 

misconduct. I note that such evidentiary exclusions may deny the operator an opportunity to 

introduce relevant evidence on its behalf during a temporary reinstatement proceeding. 
12

Commissioner Althen, concurring in part and dissenting in part: 1

Commissioner Rajkovich does an excellent job of covering the breadth of precedents 

bearing upon the adjudication of temporary reinstatement proceedings, and I concur with his 

holdings regarding such proceedings and the correctness and affirmance of the opinions of 

Acting Chairman Althen and Commissioner Young in Sec’y of Labor on behalf of Shaffer v. The 

Marion Cty. Coal Co., 40 FMSHRC 39, 47 (Feb. 2018). To ensure our Judges do not miss the 

crucial rulings of law, I explicitly concur with Commissioner Rajkovich that: 

1. A temporary reinstatement hearing is an expedited hearing but is a full hearing.

2. Respondents in temporary reinstatement proceedings are entitled to a full hearing of 

issues related to the allegation of discrimination, including grounds for an affirmative 

defense and whether animus motivated any adverse action. The Judge then reviews 

evidence on such matters and all other evidence under the non-frivolous standard of 

proof set forth in section 105(c)(2) of the Mine Act. 30 U.S.C. § 815(c)(2).

3. A “non-frivolous” case is a claim that is “viable.” Thus, the Secretary must prove by 

a preponderance only that the claim of discrimination or interference may succeed.

4. If versions of events diverge without dispositive proof of either parties’ version 

(including affirmative defenses), the outcome at the reinstatement stage may not rest 

upon a choice between credibility or the differing versions of events. However, the 

Judge need not accept testimony if it is demonstrably false, patently incredible, or 

obviously erroneous because such evidence fails to qualify as “substantial evidence” 

upon which a reasonable person might rely.

To restate these principles briefly, the Judge may not decide genuine disputes of fact or 

credibility arising at a reinstatement hearing. However, the dispute must be genuine. If the 

evidence demonstrates that one party’s version of the “dispute” lacks any credibility, the Judge 

need not abandon commonsense and ignore established facts. Judges are not required to accept 

testimony demonstrated positively to be false. Suppose a picture properly introduced into 

evidence indisputably shows a witness present at a specific scene and such presence is confirmed 

by witnesses. In that case, the Judge need not accept the witness’ protestation that he/she was 

not present. 

1 This opinion does not express any opinion regarding the merits of the complaint or 

defense. It treats only the rights of the respondent to a fair hearing. Presumably, MSHA is 

conducting its investigation into the claims of both parties. Indeed, because the complaint was 

filed on February 1, 2021, MSHA should have made its determination whether to proceed with a 

case by now or should make such determination within a few days of the issuance of this 

decision. 30 U.S.C. § 815(c)(3).
13

A respondent also may introduce evidence going to the absence of a demonstration of 

animus. If the evidence shows the absence of a viable claim, it means the claim is frivolous.2

Commissioner Rajkovich correctly describes the failure of the Judge below to conduct a 

full hearing by excluding evidence offered by the respondent to prove it terminated the 

complainant as a result of a gross safety violation. Such evidence was relevant to the 

respondent’s claim of no showing of animus and that unprotected activity supported the 

termination. The evidence was relevant and admissible. The failure to hear this evidence was an 

error. 

Turning to the disposition, however, I find myself compelled to disagree with affirming 

the reinstatement notwithstanding the clear denial of statutory and constitutional rights. 

Commissioner Rajkovich recognizes the error but finds the error harmless.

I disagree that the denial of fundamental statutory and constitutional rights may be swept 

aside as a harmless error. Such a finding repeats and reinforces the error by the Judge. Worse, it 

may encourage other Judges to shorten hearings on temporary reinstatement, believing that the 

deprivation of statutory and constitutional rights will be “harmless.”

This expedited review is not a suitable place for an extended discourse on harmless error. 

Rather than engaging in a lengthy discussion of harmless error following Chapman v. California, 

386 U.S. 18 (1967) and its numerous progeny, I simply state I find underlying considerations 

militate in favor of remand.3

 

First, applying developed concepts of harmless error, I cannot find the error harmless in 

this case. The Judge’s action is more than a “trial error.” Denial of the respondent’s rights to 

present its case interfered with the substantial rights of the respondent, and the absence of 

2 I do not understand the failure to discuss the excellent ALJ decision in Sec’y of Labor 

on behalf of Fletcher v. Frontier-Kemper Constructors, Inc., 34 FMSHRC 2189 (Aug. 2012)

(ALJ). I do not believe Commissioners have any greater knowledge or understanding of the 

Mine Act than Commission ALJs. Commission ALJ decisions are worthy of consideration even 

if not precedential. In the Fletcher case, there was a temporal connection between the 

complainant talking to an MSHA inspector and the termination of his employment. Nonetheless 

the evidence did not provide an element of animus to the employer’s action. The Judge denied 

temporary reinstatement finding that there was no evidence of animus or disparate treatment. Id. 

at 2219-20.

Though stated in terms of animus, the Judge could have alternatively stated that the 

respondent demonstrated a proper motive for termination. Under either wording, the 

complainant’s claim was not viable – that is, was frivolous

3 In Chapman, the Court referred to “small errors or defects that have little, if any, 

likelihood of having changed the result of the trial.” 386 U.S. at 21-22. These are categorized as 

“trial errors.” The error here certainly was not “harmless beyond a reasonable doubt” as 

described in Chapman. 386 U.S. at 24.
14

evidence and testimony may have substantially interfered with the potential outcome of the 

hearing. Such error is not harmless.

Second, the “non-frivolous” standard of proof for reinstatement is as low a standard of 

“proof” as may be stated. Further, reinstatement deprives a person of its property and the right to 

manage its workforce. For that reason, Congress necessarily gave operators the right to a 

hearing. The hearing must be full and robust; it must not be illusory.

If the operator is not allowed to introduce evidence of the absence of animus or a lawful 

basis for its action, the right to a hearing becomes merely a nod at due process rather than 

meaningful enforcement of constitutional rights. The only way to provide a measure of due 

process is to afford respondents full and fair hearings. By requiring Judges to hold proper 

hearings, the Commission assures full rights to respondents. If every error is “harmless,” there 

is little incentive to accord respondents their full rights.4

Third, we should consider the error in this case in the context of the alleged actions of the 

claimant. Judges must not be legal automatons aware only of the law and unaware of the 

allegations. Respondent alleges that the complainant, a foreman and mine examiner, knowingly 

ordered or permitted an hourly employee to operate a scoop with an inoperable safety device. 

MSHA issued a citation for the operation of the defective equipment asserting an S&S violation 

and a likelihood of a fatality. For a foreman to knowingly authorize or order a miner to use a 

scoop with a defective safety device would be serious, potentially criminal, misconduct. Section 

110(c) of the Mine Act, 30 U.S.C. § 820(c). Certainly, MSHA must be investigating that 

possibility thoroughly. 

Again, I do not express any opinion regarding the claims made by the complainant or 

respondent. However, it is relevant that this case involves more than an allegation that an hourly 

employee cursed at a supervisor, had an unexcused absence, or violated a work rule. Of course, 

due process and statutory rights apply to all cases. However, reinstatement of a mine inspector 

who allegedly authorized a miner to use unsafe equipment requires an especially vigorous review 

of the evidence.

4 Just as this opinion offers no opinion on the outcome of this discrimination claim, it also 

offers no criticism of the respected Administrative Law Judge who presided at the hearing. The 

low standard of review may incentivize cutting through “red tape” to reach a decision that may 

seem inevitable. That incentive likely extends to all Judges and to the Commissioners.
15

In summary based upon the foregoing, I concur that the Judge erred in excluding 

evidence proffered by the respondent. I would not find such error harmless, and I would remand 

for the full hearing to which the respondent was entitled.5

___________________________________

William I. Althen, Commissioner

5 Chair Traynor’s opinion warrants only a footnote. Respondent’s Petition for Review 

challenged the exclusion of evidence relevant to its affirmative defense and the failure of the 

Judge to accept evidence that would fully undermine the complainant’s trial claim. We granted 

that Petition and reviewed those issues. Those were the issues before us for decision. We have 

held the Judge erred and that the evidence was admissible. That is the holding in this case and 

the law of the Commission.
16

Chair Traynor, concurring in result only:

I join Commissioner Rajkovich’s decision affirming the Judge’s application of the “not 

frivolously brought” standard to temporarily reinstate the miner claimant’s employment pending 

full litigation of the merits of his claim. I wish I could join his opinion and would have, but for 

his decision to join Commissioner Althen’s foray into dicta addressing issues Commissioner 

Rajkovich and I did not reach and do not need to reach in order to affirm the decision below.

In their opinions, my colleagues attempt in vain to make big changes to the not 

frivolously brought standard – changes that are not necessary to resolution of this case. See 

Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1472 (9th Cir.1995) (explaining that statements 

not necessary to the decision are dicta and thus are not binding precedent). Specifically, they 

seek in this case to resolve a split in one of our earlier cases.

In Secretary of Labor on behalf of Shaffer v. Marion Cty. Coal Co., 40 FMSHRC 39 

(Feb. 2018) (“Marion”), the Commission issued a 2-2 decision that unanimously held that during 

a temporary reinstatement hearing a Judge is not to make credibility determinations. 

Commissioners Jordan and Cohen issued a decision noting that evidence relating to whether the 

complainant was discharged for unprotected activity relates to the operator’s rebuttal or 

affirmative defenses and thus is not appropriate to be considered in the temporary reinstatement 

decision. Id. at 44. Acting Chair Althen and Young concluded that evidence that may relate to 

the operator’s defense is relevant in a temporary reinstatement decision, but if that evidence 

creates a conflict or requires a credibility determination, the Judge is not to resolve it at the 

temporary reinstatement stage.1 Id. at 47.

In the case at hand, the majority attempts to cement the Althen/Young opinion into law, 

even though it is entirely unnecessary to the decision Commissioner Rajkovich and I reach to 

affirm the Judge in this case. Commissioner Rajkovich and I have produced a holding; their 

efforts produce only dicta. The current Black’s Law Dictionary observes that “obiter dictum” is 

Latin for “something said in passing” and refers to:

a judicial comment made while delivering a judicial opinion, but one 

that is unnecessary to the decision in the case and therefore not 

precedential (although it may be considered persuasive). — Often 

shortened to dictum or, less commonly, obiter. 

Dictum, Black’s Law Dictionary (11th ed. 2019). The same dictionary defines “judicial dictum” 

as:

1 Acting Chair Althen and Commissioner Young’s separate evidentiary rule is impossible 

to apply in a temporary reinstatement proceeding. Evidence that may allegedly demonstrate that 

the miner either did not engage in protected activity or that the operator was motivated by nonprotected activity creates a conflict in the evidence and therefore cannot be considered. They 

seem to simultaneously require the Judge to admit the evidence, but to exclude it from her 

consideration as to whether the case has been frivolously brought. 
17

An opinion by a court on a question that is directly involved, briefed, 

and argued by counsel, and even passed on by the court, but that is 

not essential to the decision and therefore not binding even if it may 

later be accorded some weight.

Id. Dicta is not law. United States v. Pasquantino, 336 F.3d 321, 329 (4th Cir.2003) (en banc) 

(stating that dicta “cannot serve as a source of binding authority in American jurisprudence.”) 

My colleagues both find error with the Judge’s exclusion of evidence proffered in support 

of the operator’s affirmative defense. But one - Commissioner Rajkovich - correctly decides 

such error is harmless because the Judge would not have been permitted to resolve credibility 

issues raised by the excluded evidence.2 Slip Op. at 11. Accordingly, and because I also vote to 

affirm, the decision of the Judge is affirmed without need to consider or resolve the issue on 

which the Commission split 2-2 in Marion, i.e., whether a Judge can consider an operator’s 

rebuttal or affirmative defense when applying the not frivolously brought standard to a claim for 

temporary reinstatement. 

Not only are my colleagues’ dicta not binding, their musings on the admissibility of 

evidence offered to prematurely substantiate an operator’s affirmative defense or rebuttal case 

are unpersuasive.3 I do not understand why they wish to require our Judges to conduct 

temporary reinstatement hearings in such a cumbersome manner, requiring the introduction of 

evidence that cannot be considered in the decision. Why would we require our Judges to 

unnecessarily prolong temporary reinstatement hearings in order to receive potentially extensive 

evidence as to the operator’s affirmative defenses or rebuttal case, only to exclude the evidence 

from consideration? Only once the case proceeds to a decision on the merits will the claimant or 

Secretary of Labor have had a full opportunity to conduct discovery and develop their evidence.4

And our Judges would then need to once again take evidence as to the operator’s rebuttal and 

affirmative defenses. Judges should only take evidence germane to the decision at hand. In this 

case, at this stage, that is limited to evidence going to whether the discrimination claim – looking 

at preliminary evidence only as to each element necessary to establish the claimant’s prima facie 

case – is frivolously brought.

Commission Judges should continue to exclude from their decision-making in temporary 

reinstatement proceedings any evidence offered solely to support an operator’s affirmative 

2

 The Judge determined that the evidence proffered by the operator would require a 

credibility determination and thus it was beyond the scope of the temporary reinstatement 

hearing. ALJ Dec. at 3 n.2; Unpublished Order dated Mar. 26, 2021.

3 I do not find it necessary to rebut Commissioner Althen’s contention that our precedents 

precluding premature consideration of affirmative defenses and rebuttal cases at this stage 

violates any legally cognizable operator’s “right to manage its workforce.” Slip Op. at 14.

4 Commission Rule 45 provides that a hearing on a petition for temporary reinstatement 

must occur very quickly after a petition requesting such relief is filed and without opportunity for 

either the claimant or operator to take discovery.
18

defense or rebuttal. Evidence that may not be considered in a temporary reinstatement decision 

should not be permitted to burden the docket and prolong proceedings. My colleagues’ nonbinding preference notwithstanding, we continue to prohibit not only untimely credibility 

determinations, but also any premature weighing of evidence offered in support of an operator's 

affirmative defense against or rebuttal to the claimant’s prima facie discrimination claim.

I join Commissioner Rajkovich to affirm the decision below.

___________________________________

Arthur R. Traynor, III, Chair
19

Distribution (by e-mail):

Christopher D. Pence, Esq.

Hardy Pence, PLLC 

10 Hale Street, 4th Floor

PO Box 2548

Charleston, WV 25329-2548

cpence@hardypence.com

LaShanta Harris, Esq.

U.S. Department of Labor

201 12th Street South, Suite 401,

Arlington, VA, 22202-5450

Harris.LaShanta@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

Administrative Law Judge Priscilla Rae

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

prae@fmshrc.gov

Melanie Garris

Office of Civil Penalty Compliance

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202-5452

Garris.Melanie@DOL.GOV