MARCH 2003 

THERE WERE NO COMMISSION DECISIONS OR ORDERS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-04-2003 Virginia Slate Company 

03-06-2003 Sec. of Labor on behalf of Danny Foust v. 

Manalapan Mining Company 

03-13-2003 Jason C. Sheperd v. Black Hills Bentonite 

03-18-2003 Casey J. Mayberry v. Oxbow Mining, LLC. 

03-21-2003 Sec. of Labor on behalf of Andrew J. Garcia v. 

Colorado Lava, Inc. 

03-27-2003 Arnold J. Jistel v. Trinity Materials, Inc. 

03-28-2003 Baylor Mining, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

03-03-2003 Cactus Canyon Quarries of Texas, Inc. 

03-05-2003 Thomas P. Dye, II v. Mineral Recovery Specialists 

03-24-2003 Sec. of Labor on behalf of Raymond Roman v. 

Eagle Coal Company, Inc. 

i 

VA 1999-8-M Pg. 105 

KENT 2002-203-D Pg. 113 

WEST 2002-466-DM Pg. 129 

WEST 2002-561-D Pg. 136 

WEST 2001-14-DM Pg. 144 

CENT 2002-150-DM Pg. 153 

WEVA 2001-124-R Pg. 162 

CENT 2002-80-M Pg. 164 

WEST 2002-408-DM Pg. 170 

KENT 2000-125-D Pg. 173 

MARCH 2003 

Review was granted in the following cases during the month of March: 

Secretary of Labor, MSHA v. Lodestar Energy, Inc., Docket Nos. KENT 2002-184, 

KENT 2002-238. (Judge Melick, January 28, 2003) 

Secretary of Labor, MSHA v. Eastern Associated Coal Corporation, Docket No. 

WEVA 2002-46. (Judge Hodgdon, January 31, 2003) 

No cases were filed in which Review was denied during the month of March 

ii 

ADMINISTRATIVE LAW JUDGE DEQSIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001-2021 

March 4, 2003 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADJv.UNISTRATION (MSHA), 

Petitioner 

v. 

VIRGINIA SLATE COMPANY, 

Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. VA 1999-8-M 

A.C. No. 44-06803-05508 

Adco Land Corp. No. 1 

DECISION ON REMAND1 

Appearances: M. Yusuf M. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner; V. Cassel Adamson, Jr., Esq., Adamson 

and Adamson, Richmond, Virginia, for the Respondent. 

Before: Judge Weisberger 

This civil penalty case is before me based upon a decision of the Commission, 24 

FMSHRC 507 (2002), which vacated and remanded the unwarrantable failure determinations and 

penalty assessments set forth in my prior decision in this matter, 23 FMSHRC 867 (2001). 

I. Unwarrantable Failure Determinations 

A. Order No. 7711667 

In the order at issue, Virginia Slate was charged with failing to provide berms, bumperblocks, safety hooks, or similar impeding devices for the front-end loader that loaded the hopper 

of the crusher. In essence, in its decision vacating my determination that the violation was not a 

result of Virginia Slate's unwarrantable failure, the Commission instructed me to consider all the 

unwarrantable failure factors in conjunction with the specific facts of the violation. The 

Commission in this regard indicated that in addition to the length of time the front-end loader 

was used, there are additional factors that must be examined in determining whether conduct is 

aggravated, including the following: " ... the extent of the violative condition, whether the 

operator has been placed on notice that greater efforts are necessary for compliance, the 

1

The Decision on Remand issued on March 4, 2003, contained clerical errors. These errors were 

corrected in an order issued on March 28, 2003. The instant published Decision on Remand has 

eliminated the clerical errors and is in conformity with the order issued on March 28, 2003. 

105 
operator's efforts in abating the violative condition, whether the violation poses a high degree of 

danger, and the operator's knowledge of the existence of the violation". 24 FMSHRC at 512. 

Specifical.ly, in this regard, the Commission mandated that an analysis should be made of 

whether the violation posed a high degree of danger particularly in light of the finding I made 

that as a result of the violation there was a danger of a loader overturning. The Commission also 

required that" ... when discussing whether the operator had knowledge of the violation, the Judge 

should explain his finding through reference to specific record evidence." 24 FMSHRC, supra, 

at 5113. The Commission further provided that on remand it should also be determined the 

extent of the operator's knowledge of the violation specifically addressing the testimony of 

Adamson, Jr. (Tr. Vol. II, 155-71). Lastly, the Commission required that if it be found that 

Adamson, Jr. knew or had reason to know that impeding devises had not been provided around 

the front-end loader then I should consider whether or not Adamson, Jr. was a supervisor and, if 

he was, whether he violated the standard of care required of supervisory personnel by failing to 

stop a known violation. 24 FMSHRC supra at 513. 

According to the inspector, the violative condition herein presented a risk of the front-end 

loader falling onto the hopper. He explained that if the front-end loader would over-travel a 

disabling injury could result by virtue of the front-end loader overturning by running into the 

hopper. Also, the loader could go over either side of the hopper, fall down to the ground and 

collide against rocks located on the ground The inspector opined that such a accident was 

reasonably likely to occur in continued operations. 

The high degree of danger in using the front-end loader to dump at the hopper without a 

berm or stop-block or impeding device was also recognized by Adamson, Jr. who indicated, in 

essence, that he was uncomfortable using the front-end loader at the hopper because it has 

"tremendous power and breakout force", (Tr. Vol. II, 165); that the loader operator could knock 

down any berm that could be constructed; and that although he was satisfied that for a 

"momentary test" it would "be all right", he didn't want somebody sitting "on a machine for 

eight hours, driving up and dumping in, ... and make a mistake, the consequences". (Id.) (sic.) 

He indicated that it was possible for the operator to become injured. Also; Adamson, Jr. testified 

that when he gave the instruction to use the front-end loader for a few minutes, he told the 

operator to be "super careful ... ,be real cautious about this ... we don't want anybody hurt". (Tr. 

Vol. II, 166) 

However, the inference of the presence of a high degree of danger is mitigated by the fact 

that the Commission in it's decision, 24 FMSHRC supra, did not reverse my credibility finding, 

in the previous decision, 23 FMSHRC 867 (2001), accepting the testimony of Adamson, Jr. over 

Williams' testimony, and finding that from March, 1997 when operations commenced until June 

l, 1998, the excavator was normally used to load the hopper, and that on June l, the front-end 

loader was used to load the hopper for about ten minutes. In this connection I note that the 

inspector conceded on cross-examination that if an excavator feeds the hopper, blocks are not 

106 
necessary. Further, I accept Adamson's testimony, based upon his demeanor that I found 

trustworthy, that it was the intention of the operator to use the excavator to load the hopper once 

everything returned to normal. Based on my observations of Adamson's demeanor I accord more 

weight to his in-court sworn testimony, than to the uncorroborated hearsay testimony of the 

inspector that, "[tlheir [Virginia Slate's] intentions were to use the front-end loader, because the 

excavator was down in the pit area." (sic.) (Tr. Vol. II, 141) (Emphasis added.) Not much 

weight was accorded this statement as the inspector did not provide the basis for this conclusion, 

nor did he explain the source of this information. Further mitigating the level of the operator's 

negligence is the testimony of Adamson, Jr. that on two prior occasions" ... this had been -- this 

aspect of doing it", had been inspected and no fault was found by the previous inspectors. (Tr. 

Vol. II, 162) I accept this testimony inasmuch as it was not impeached or contradicted. 

c. Was Adamson Jr. a Supervisor 

According to the inspector he referred to Adamson ill as the foreman, and the latter told 

him that he was responsible for making examinations of the work areas. However, the Secretary 

did not call Adamson, ill to testify nor did the Secretary offer any explanations for its failure to 

do so. Regarding Adamson Jr., it appears, as president of the company, that he had some 

supervisory responsibilities. In this connection, I note that on cross-examination, he was asked, 

in essence, whether he was on the site two hours a day four days a week. He answered as 

follows: "but at different times, with no precise schedule." (Tr. Vol II, 167) Further, Adamson 

testified, in essence, that on June 1 the loader operator had asked his permission to use the frontend loader to feed the crusher instead of the excavator, and he reluctantly agreed and allowed it. 

However, any of his negligence as a supervisor, imputed to the company, is mitigated by the fact 

that the front-end loader was used for only 10 minutes on June 1. 

d. Obviousness of the Violation 

The violative condition was observed by the inspector. Also, in response to a leading 

question on direct examination, the inspector agreed that it was his understanding that a stopping 

block had been missing for at least a week. Although the inspector did not provide the source for 

this information, it is significant that this testimony was not impeached or contradicted by the 

operator. 

e. Abatement efforts 

As abatement of the violative condition, a stop block was provided at the hopper, and the 

violation was terminated on June 4, three days after the citation had been issued. 

f. Discussion 

107 
Weighting all the above factors, I find that the use of a front-end loader without a berm or 

stop block or any other impeding device at the dump hopper presented a high degree of danger; 

the danger was recognized by Adamson Jr.; the violative condition was obvious; and that it did 

not take a significantly long time to abate the violation. However, I find the existence of 

significant mitigating factors. In this connection I note that according to the inspector, the use of 

an excavator to load the hopper would not have violated the regulation cited; that from the time 

the operation at the subject site commenced until June 1, the front-end loader had been used for 

only 10 minutes; that it was not intended to use the front-end loader again once everything 

returned to normal at the hopper; and that no fault had been found by previous inspectors on two 

prior occasions. Within this context I find that the Secretary has failed to establish by a 

preponderance of the evidence that the operators negligence reached the level of aggravated 

conduct. Thus, I find that it has not been established that the violation herein was as a result of 

the operator's unwarrantable failure. 

B. Order No. 7711681 

a. Extent and Duration of Failure to Perform Adequate Pre-Shift 

Examinations 

Consistent with my initial decision 22 FMSHRC 378, 390, supra, I reiterate my finding 

that because the record establishes the existence of defects on mobile equipment e.g., inoperable 

horns and lack of seatbelts, that it was more probable than not that a pre-shift examination had 

not been performed. Thus the operator was in violation of 30 C.F.R. § 56.14100. Further, the 

Commission, in the instant remand, 24 FMSHRC supra, took cognizance of my acceptance of 

the testimony of Roy Lee Green, regarding the missing portion of a seatbelt on mobile 

equipment, and that he had driven the truck for three weeks without a seatbelt. 

Adamson testified that the pre-shift reports of the truck indicated that it was satisfactory. 

However the reports themselves constitute the best evidence of their contents. Since they were 

not proffered in evidence by the operator, I place more weight on the testimony of Green. I find 

Green's testimony that he had driven the truck for three weeks without a seatbelt to be credible, 

based upon observation of his demeanor. Thus based on this credible testimony, I conclude that 

it is more probable than not that the operator had failed to perform pre-shift examination of 

mobile equipment for at least three weeks. 

b. Knowledge that the Operator was not Adequately Carrying out 

Examinations 

Adamson testified that he had told Terry to check the truck before it was put into service; 

that a couple of days later he asked Green, who was driving it how it was and he (Green) said it 

was ok; that Adams' son drove it and said it was ok; and that the pre-shift reports of the truck 

indicated that it was satisfactory. Thus, it is reasonable to conclude that Adamson himself 

neither knew nor reasonable should have known that inspections had not been performed 

108 
adequately on the mobile equipment. However, it is significant to note that the inspector's 

testimony that Roy Terry, the foreman, informed him that after the truck was delivered three 

weeks prior to June 2, he (Terry) did not check it for safety defects. This testimony was not 

rebutted or impeached by the operator. Hence, the knowledge of Terry, a foreman, is imputed to 

the operator. Accordingly, I find that the operator did have knowledge that it was not adequately 

carrying out the required pre-shift examinations related to mobile equipment. 

c. Obviousness Posed by the Underlyine Violations 

Green was the only person who testified and had personal knowledge of the lack of a 

seatbelt in the truck. Green indicated that in the three weeks that he drove the truck it did not 

have a seatbelt. Also, importantly, he testified that he had reported the lack of a seatbelt to Terry, 

and the latter did not do anything about it. This testimony has not been rebutted or impeached by 

the operator. I find it indicative of the fact that it was obvious that a pre-shift examination of the 

mobile equipment had not been performed in a satisfactory manner. Green and Hom, the only 

persons to testify who had personal knowledge of the condition, both noted that the seatbelt had 

just one side. I thus conclude that it can be found that it was more probable than not that it was 

obvious that proper pre-shift examinations had not been performed, and that the defective 

seatbelt was obvious. 

Within this context I find that the level of the operator's negligence reached the level of 

aggravated conduct. Hence I find that the Secretary has established that the violation herein was 

as a result of the operator's unwarrantable failure. 

II Penalties 

A. Order No. 7711661 

1. Gravity 

Since the violative condition could have resulted in an injury to a miner, I find that the 

level of gravity was relatively high. 

2. History of Violations 

I have reviewed the history of violations, (Gx. 33) which is a two year history of 

violations, and indicates a total number of 33 violations but only nine of which were S&S. There 

is an absence of guidelines or framework provided by the Secretary to evaluate this history of 

violations i.e., no evidence was presented as to how this history of violations compared to other 

two year periods at-this operation, or two year periods of history of violations at comparable 

operations of comparable size. Hence, I conclude that the history of violations has a neutral 

affect on the analysis of the penalty to be imposed. 

109 
3. Good Faith Abatement 

I reiterate my earlier findings that violative condition was abated in a timely fashion. 20 

FMSHRC supra, at 70. 

4. The Operator's Size 

I take cognizance of the Commission's finding, which becomes the law of the case, that 

based upon the production tons or hours of the operation, Virginia Slate is a small operator. 24 

FMSHRC supra, at 516. Thus this is a factor mitigating the amount of the penalty. 

5. Ability to Continue in Business 

There is an absence of evidence that the proposed penalty would effect Virginia Slate's 

ability to continue in business. I take cognizance of the Commission's finding, which becomes 

the law of the case, that in such an event, it is assumed that no such adverse affect would occur 

(Id.). 

6. Negligence 

I reiterate my initial finding, for the reasons stated therein, 20 FMSHRC supra, at 870, 

that the level of Virginia's negligence was moderate. 

7. Discussion 

I note that the Secretary, in it's Petition, requested a penalty of $700.00 for this violation. 

However, in evaluating the above statutory criteria, especially taking into account that the 

Secretary had characterized the Operator's negligence as high, whereas in contrast, I found the 

level of negligence was only moderate, and considering the mitigating factors of the small size of 

the operation and the good faith abatement, I find that a penalty $300.00 is appropriate. 

B. Citation No. 7711663 

The 1 lO(i) factors relating to history of violation, size, and the effect of the penalty on the 

operator's ability to continue business, are set forth relating to Order No. 7711661, infra, are 

common to all the citations at issue and are incorporated herein by reference. 

1. Good Faith Abatement 

I find that violative condition was abated in a timely fashion. 

2. Gravity 

110 
I find that although an injury of a reasonably serious nature was not reasonably likely to 

have occurred, should an injury have occurred it could have been permanently disabling. I thus 

find that the level of gravity was moderately high. 

3. Negligence 

According to the inspector, Terry and two other crusher operators told him that the 

crusher, and apparently the pulleys, had been in operation in an unguarded condition for two 

weeks prior to his inspection. The Secretary did not call Terry to testify, nor did the Secretary 

indicate why Terry was not called. Hence, an inference might be drawn that Terry's testimony 

would not have been helpful to the Secretary's case. Further, the only crusher operator to testify, 

Leroy Williams, indicated that there was no guard at the tail pulley "at the time leading up to the 

inspection" (Tr. Vol. 1, 148), but he did not testify that it had been run without a guard. There is 

no evidence that a guard was not in place prior to the time the crusher and the operation of the 

entire plant including the belts at issue had been shut down approximately two weeks prior to 

June 2. I reiterate my initial findings, 20 FMSHRC supra, at 381-382. Specifically, I find, based 

on my observations of Adamson's demeanor, that his testimony was credible. I, accordingly, 

give more weight to Adamson's in-court testimony than Hom's hearsay testimony, that from 

May 10, 1998, through June 1, 1998, the plant was not in operation and no belts were in 

operation, because the conveyor was being worked on. I also reiterate my initial finding, 20 

FMSHRC supra, at 383, that based on Adamson's testimony that I find credible, the guard at 

issue had been removed to clean the area. For these reasons, I find that the level of negligence of 

the operator to have been only moderate. 

Within the context of the above evaluation, and considering the fact that the Secretary's 

Petition requesting a penalty of $500.00 was based on, inter alia. a finding that the operator's 

negligence was high, whereas I have found that Secretary has failed to establish that the level of 

negligence was more than moderate, I find that a penalty of $300.00 is appropriate. 

C. Citation No. 7711665 

As set forth above, for the reasons explained above, I find that the size of the operator's 

operation is small, and its history of violations has a neutral effect on the setting of the penalty. I 

reiterate the finding that I made in the initial decision, 22 FMSHRC supra, at 384, for the reasons 

set forth therein, that the level of gravity was relatively high. I also reiterate my earlier finding 

therein that the level of negligence was no more than moderate, and I reiterate the other findings 

that I made in the second decision, 23 FMSHRC supra, pertaining to abatement and effect of a 

penalty on the operator's ability to continue in business, as neither of these findings have been 

reversed or remanded. I find that a penalty of $300.00 is appropriate for this violation. 

D. Order No. 7711667 

On remand, the Commission ordered me to fully consider the size of the operator's 

111 
operation, and its history of violations. These factors have been set forth above, and are 

incorporated herein by reference, i.e., that the size of the operation was small and the history of 

violations has a neutral effect on the penalty. I therefore reiterate the finding of a penalty of 

$200.00 that was previously set forth in prior decisions, 23 FMSHRC supra, at 870 and 22 

FMSHRC supra, at 385. 

E. Order No. 7711681 

In this remand, pursuant to the Commission's directive, I adopt and reiterate the findings 

and rationale set forth in the initial decision, 22 FMSHRC supra, at 390, that the gravity of the 

violation was high. The criteria of the size of the operation, history of violations, and effect of a 

penalty on the ability to remain in business are the same as set forth above relating to Order No. 

7711661, infra, and are adopted herein. I reiterate my finding previously made that the violative 

condition was abated in a timely fashion, 23 FMSHRC supra, at 87, as it was not reversed or 

remanded by the Commission. I also reiterate the finding made above, l(B)(c), infra, that the 

level of negligence reached the level of aggravated conduct, i.e., high negligence. Weighing all 

the above factors set forth in l lO(i) of the Act, I finding that a penalty of $750.00 is appropriate. 

ORDER 

It is Ordered, pursuant to the Commission's remand, 24 FMSHRC, supra, that Virginia 

Slate pay a total penalty of $1,850.00 for the violative conditions cited in the following 

Order/Citation Numbers: 7711661, 7711663, 7711665, 7711667, and 7711681. 

Administrative 

~e~ Law Judge 

Distribution List: 

M.Yusuf M. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Blvd., 22"d Floor West, Arlington, VA 22209-3939 

V. Cassel Adamson, Jr., Esq., Adamson and Adamson, Corzet House, 100 Main Street, 

Richmond, VA 23219 

lsc 

112 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, Suite 9500 

Washington, D.C. 20001 

March 6, 2003 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of DANNY FOUST, 

Complainant 

V. 

MANALAPAN MINING COMP ANY, 

Respondent 

Docket No. KENT 2002-203-D 

BARB CD 2001-15 

Preparation Plant 

Mine ID 15-12602 

DECISION 

Appearances: Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Complainant, 

Before: 

Susan C. Lawson, Esq., Lawson & Lawson, P.S.C, Harlan, Kentucky, 

For Respondent. 

Judge Zielinski 

This ca~e is before me on a complaint of discrimination filed by the Secretary of Labor on 

behalf of Danny Foust under Section 105( c )(2) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(c)(2) ("the Act"). The Secretary alleges that Manalapan Mining Company 

("Manalapan") discriminated against Foust by terminating his employment on May 31, 2001, as a 

result of his complaints about safety. A hearing was held in Harlan, Kentucky. Following 

receipt of the hearing transcript, the parties submitted briefs. For the reasons set forth below, I 

find that Respondent did not discriminate against Foust and dismiss the complaint. 

Findings of Fact 

Manalapan has produced coal in and near Harlan County, Kentucky for many years. 

After closing a facility at Brookside, Kentucky in 1997, it operated two facilities, the Highsplint 

Division and RB Coal, both consisting of underground mines, preparation plants and load-out 

facilities. Over the years, reductions in the market price of coal and decreasing quality of 

mineable coal have resulted in constriction of Manalapan' s operations. The Highsplint operation 

effectively closed on September 14, 2002. Tr. II 88-89; ex. R-11. 1 

The transcript of the hearing consists of two volumes. The transcript of the first 

two days is referred to as "Tr." The separately numbered transcript for the third day is referred to 

113 
Danny Foust had been employed at a coal preparation plant owned by Great Western 

Coal, and was laid off when that operation shut down in 1995. In 1997, he began working for 

Manalapan, operating a bulldozer loading coal in the mines at Highsplint. Later, he worked on 

the crusher. When a vacancy occurred in a foreman's position at the Highsplint preparation 

plant, Foust, who had indicated an interest in such a position and was certified as a foreman and 

electrician, was selected for the job. Duane Bennett, Manalapan's chief executive officer, had 

heard reports that Foust was a hard worker and wanted to give him a chance at the position. 

Foust became the preparation plant foreman on the day shift in July of 2000. The foreman of the 

day shift was also in charge of the second shift, which had its own foreman. As a certified 

electrician, Foust was responsible for performing monthly electrical inspections and signing the 

"electrical book." Foust received an increase in pay and later became a salaried worker, earning 

$700 a week. In addition he became eligible for higher bi-yearly bonuses and Bennett agreed to 

make half of the payments for a new truck that Foust purchased. 

The preparation plant was a critical component of Manalapan's mining operation. All of 

the coal produced by the mines had to be processed through the plant to remove rock, clay and 

other impurities. Coal had been mined at Highsplint for almost 100 years and the quality of that 

remaining had declined considerably. Manalapan' s most recent reject rate was as high as 50-

60%, i.e., less than half of the raw product produced by the mines was marketable coal. The 

preparation plant, often referred to as a "washer," used water and chemicals to separate the 

marketable "clean coal" from the waste, or "sludge." Raw coal was crushed and combined with 

water and a chemical, "magnatite," which "floated" the useable coal from the sludge suspension. 

The clean coal was then dried, passed through screens where it was sorted by size, and 

transported by belts to stockpiles in the load-out area. Much of the water used in the process was 

recirculated. It was routed to a large tank called a "thickener" where a chemical, "Nalco", a 

cationic, was added to help cause the clay and other suspended impurities to settle. The sludge 

was moved to the tank's center by rotating "rakes," and was then pumped to a large 

impoundment area. Water that was not reused was discharged into a ditch that fed down into a 

series of settlement ponds. There was also a creek that flowed near the plant, roughly parallel to 

the ditch. Foust and other foremen were periodically directed to add Nalco to the water in the 

ditch and the creek. Trucks forded the creek making it muddy, and the Nalco settled the mud as 

the water flowed down into a large settlement pond and eventually into an adjoining river. 

The Highsplint plant was an old facility, part of which had been re-built in conjunction 

with the installation of the present washer in 1987. It was designed to be operated by four men. 

Tr. II 33. Portions of the old plant were inactive, and some machinery had been removed. As 

recently as 1997, the plant had operated with three shifts, two running production, and the third 

performing maintenance. By the time Foust became foreman, the plant was operated on only two 

shifts. The primary responsibility of the day shift was to process coal. However, repairs often 

had to be made when equipment failures forced curtailment of plant operations. The primary 

responsibility of the evening shift was to perform repairs and maintenance that could not be done 

while the plant was operating. However, the second shift typically processed coal for several 

as ''Tr. II." 

114 
hours before shutting the plant down, especially if the first shift had experienced significant 

down time. The respective foremen or members of their crews made daily notes of production 

and repair/maintenance tasks in a book. Ex. C-4. The first shift listed repair or maintenance 

tasks to be performed on the second shift, and the second shift checked the listed items as they 

were completed. If an item was not able to be addressed by the second shift, the first shift might 

do it, or it would be listed again the following day. 

The preparation plant was a highly complex processing facility. There were numerous 

conveyor belts, vibrators and screens, motors, pumps, pipes and other devices, all of which 

experienced significant wear and tear in handling the abrasive coal and waste products. 

Continued efficient operation of the plant required substantial ongoing maintenance and cleanup. After Foust assumed his foreman position in July of 2000, the preparation plant was 

experiencing frequent breakdowns, coal spills, leaking pipes, and other problems, all of which 

impacted adversely on the production of marketable coal. The inability of the plant to process 

coal had caused the raw coal stockpile to grow to excessive proportions, almost ten times what it 

should have been, which threatened to force curtailment of mining activities. Tr. 507-08. 

Bennett was increasingly concerned about the lack of production from the plant and the 

resulting inability to ship sufficient quantities of coal to maintain the economic viability of the 

Highsplint operation. In an effort to ascertain the causes of the problems at the plant, Bennett 

assigned Earl L. Goins, a foreman at the RB Coal preparation plant, to make an assessment of the 

Highsplint operation. Beginning in April 2001, Goins visited the facility during the day shift, 

two or three times a week for several hours. Tr. 551-53. He did not have extensive di~cussions 

with Foust about the operation, but did advise him of the purpose of his visits. Based upon his 

observations over a period of two weeks, he compiled a list of 12-14 problems that he felt needed 

to be addressed. He could not recall the specific items on the list, but described them as leaking 

pipes that needed to be repaired or replaced, damaged or worn chutes that caused substantial 

spillage, and similar items. Tr. 513-16. While he had concerns about Foust's ability to "boss" 

or manage the plant, he did not include any personnel issues on the list. Id. At least some of the 

second shift miners reacted with hostility to Goins' presence. He described "childish" things, 

e.g., a crude drawing of a man in a noose labeled with his name. 

As Goins related his findings at the hearing, the plant was in a state of chaos. There were 

a "huge" number of leaking pipes and large amounts of coal spillage. In his words, the plant 

"just wasn't being took care of." Tr. 509-10. His concerns about Foust's management 

capabilities were based upon what he viewed as a lackadaisical attitude by the men under his 

supervision. "If something broke, the men weren't getting there to fix it." Tr. 511. He described 

an incident where a failure of a bearing required that a belt be shut down. Foust went to the 

problem and worked on it - but only one other man came to help, after approximately 15 minutes. 

Goins then went to .look for the other men and found them just loafing or "piddling around." 

Tr. 548-49. Larry Ellis, the Highsplint surface foreman, made similar observations. Tr. 569. 

115 
In an effort to remedy the production problems, it was determined to try switching the 

personnel on the respective shifts. This move effectively demoted Foust, because the foreman of 

the first shift was also responsible for the second shift. Goins and Bennett testified that the 

switch was tried just to see if things would improve, and because they didn't want to do anything 

drastic to the men, i.e., discharge them. Tr. 533; Tr. II 83. There was some improvement in the 

first shift's production following the switch, and considerable improvement in the response to 

breakdowns. Tr. 544. However, the plant continued to experience too much down time to meet 

production goals. Tr. II 136. 

Foust, who was a certified electrician, had inspected the plant's electrical system 

monthly, and through April 2001, had signed off on the electrical book. As Foust explained the 

purpose of the book, both MSHA and the State of Kentucky required that electrical equipment 

and circuits be inspected monthly and that the results of the inspections be noted in a book.2 He 

would list any deficiencies and the date that repairs were made. Tr. 288-89. In late May 2001, 

about a week before the end of the month, Foust decided that he would no longer sign the 

electrical book, i.e., make the monthly certification that the electrical circuits of the plant met 

applicable standards.

3 Tr. 31-32; Tr. II 82. He did not want to be responsible for the electrical 

circuits, and feared that he might go to jail if someone got hurt. Tr. 210-11. 

Foust's primary concern was overloaded circuit breakers located near the thickener. 

Tr. 211. The circuits for pumping sludge to the impoundment had become overloaded because a 

larger motor, and then a second motor, were added. Tr. 468-70. In order to keep the circuits 

closed and the pumps running, the doors to the breakers were left open and a fan was used to 

blow cool air to the breakers. He testified that this posed a serious threat of electrocution 

because a miner in the area might inadvertently contact one of the conductors carrying 480 volts. 

A miner might also be struck by pieces of the equipment in the event of a catastrophic failure. 

The condition was noted by a Kentucky State mine inspector, who threatened to shut the plant 

down. However, it was allowed to operate on the condition that the breaker boxes be closed and 

locked, with only a qualified electridan being in possession of the keys. Tr. 470-78. 

Larry Shakelford, the Highsplint operation's shop foreman and chief electrician, had 

overseen the addition of the pump and had ordered new circuit breakers to handle the increased 

load. The breakers, which cost about $35,000, required about six weeks for delivery. Tr. 468-

72, 603. Six new boxes were delivered to the plant shortly after the Kentucky inspection, and 

were promptly installed by Shakelford. As far as Ellis was concerned, the problem with the 

breakers was Shakelford's, and he was "talked to" about that. 

2 See, e.g., 30 C.F.R. §§ 77.800-1 and 77.800-2, requiring that written records be 

kept of monthly testing and examination of circuit breakers. 

3 Foust decided to cease signing the electrical book rather than make notations of 

the problems, because he felt that "they would never be fixed and they would shut us down." 

Tr. 290. 

116 
On May 30, 2001, the second shift commenced work at 3:00 p.m. and the plant was not 

operating. There were several major problems that needed to be addressed, and the crew worked 

overtime until about 2:00 a.m., on May 31, 2001. When the day shift arrived and powered-up the 

plant, it ran for a few minutes, but had to be shut down because of major damage to the clean 

coal conveyor belt. A strip, approximately a foot wide, had torn and become entangled in the 

structure, extending the tear to approximately 300 feet. Goins, Ellis and Gary Smith, then the 

first shift foreman, felt that the belt had been deliberately cut and tied off so that it would rip 

when the conveyor was powered-up. Tr. 522-23. Other individuals believed that the belt could 

have been damaged in the normal operation of the plant, e.g., by a piece of metal falling from the 

structure or mixed in with the raw coal. Tr. 83-85, 104-05. Bennett viewed this breakdown as 

the "last straw," since he was paying the second shift men considerable overtime but couldn't get 

any production. Tr II. 85, 130-32. Bennett decided to discharge Foust and the miners on the 

second shift. Goins had advised him that he didn't think Foust could control the men, and 

Bennett felt that Foust and the second shift were largely responsible for the plant's problems. Tr. 

II 84-86, 107, 133. Ellis came back to him and asked to be able to move one of the men, Tommy 

Napier, to the first shift, which was short-handed, and he agreed. Tr. Il 133. Foust and Derek 

Hensley were laid-off on May 31, 2001. Ex. C-19A. The other second shift miner, Robert 

Gross, worked two additional days. 

The plant was shut down while a piece of belt from another conveyor owned by 

Manalapan was secured and spliced in. Operations resumed, but the plant continued to be 

plagued with breakdowns. More extensive maintenance work was normally performed at the 

beginning of July, when miners were on vacation. Bennett had hoped to be able to operate the 

plant until the July break, but was forced to alter that plan. A few days after the plant resumed 

operations, about June 11, 2001, when returning from an inspection of the impoundment, Bennett 

and John Ph_illips, Manalapan's engineer, observed that the rakes in the thickener tank were not 

turning. The inability to pump sludge from the thickener dictated that the plant be shut down. 

There was a build-up of sludge on the bottom of the thickener, and attempts to rotate the rakes 

resulted in failure of the drive gears. The sludge pumps also failed. The water in the tank was 

dipped out and the built-up sludge, which had become quite dense, was removed with a small 

front-end loader. An old coat, a gear wrapped in a piece of brattice cloth, and a piece of metal 

railing were discovered in the tank. The gear had migrated to the center of the tank and blocked 

the opening to the sludge pumps. It appeared that the gear, and perhaps the other items, had been 

deliberately placed in the tank. 

Bennett determined to shut the plant down for extensive repairs. He had not realized that 

it was in as bad a shape as it was. Even though parts needed for the normal summer shut down 

repairs had not been ordered, Manalapan commenced a major repair effort. As described by 

Phillips, pipes, chutes and beams were replaced. Feeders were out of level because the springs 

were broken and had not been replaced, which caused the metal to deform. Chute liners, which 

should be replaced as they wear out, had not been replaced, causing the chute itself to wear 

through. He estimated that the conditions were the result of many months of neglected 

maintenance. Tr. II 65, 73. R.T. Welding & Fabrication, a contractor that had done extensive 

117 
work at the plant in the past, was retained to perform some of the repairs. From June through 

October, R.T. Welding performed repairs costing over $68,326.75. Tr. II 51-52; ex. R-10. The 

plant was operational after a couple of weeks, but repairs and maintenance continued through the 

summer as ordered parts arrived. By September, the plant was running efficiently with a crew of 

four men. The raw coaJ stockpile was virtually eliminated, and the plant eventually needed to 

operate only three days a week to process the coal produced by the mines. As noted previously, 

the Highsplint operation, including the preparation plant, was closed for the foreseeable future, as 

of September 14, 2002. 

On June 11, 2001, Foust filed a complaint of discrimination with MSHA, alleging that he 

had been laid-off "due to complaining about unsafe work conditions at the Prep Plant." Ex. C12. The following day, MSHA initiated an inspection of the Highsplint preparation plant. 

Inspections continued to early September. A total of 102 citations were issued for various 

alleged violations. Ex. C-1. 

Conclusions of Law - Further Findings of Fact 

A complainant alleging discrimination under the Act typically establishes a prima facie 

case by presenting evidence sufficient to support a conclusion that he engaged in protected 

activity and suffered adverse action motivated in any part by that activity. See Driessen v. 

Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec'y of La.boron behalf of Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec'y of La.boron 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 way motivated by protected activity. See Robinette, 3 FMSHRC at 818, 

n. 20. If the operator cannot rebut the primafacie case in this manner, it nevertheless may 

defend affirmatively by proving that it was also motivated by the miner's unprotected activity 

and would have taken the adverse action for the unprotected activity alone. Id. at 817-18; 

Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 

642-43 (4th Cir. 1987) (applying Pasula-Robinette test). 

While the operator must bear the burden of persuasion on its affirmative defense, the 

ultimate burden of persuasion remains with the complainant. Pasula, 2 FMSHRC at 2800; 

Schulte v. Lizza, 6 FMSHRC 8, 16 (Jan. 1984). 

Prima Facie Case - Protected Activity 

The Secretary asserts that Foust engaged in protected activity in three ways: his "refusal" 

to sign the electrical book, which is alleged to be the "primary" reason for his discharge; his 

raising of concern about putting Nalco into the creek; and his complaints to Ellis about various 

hazardous conditions at the plant. A complaint made to an operator or its agent of "an alleged 

danger or safety or health violation" is specifically described as protected activity in section 

105(c)(l) of the Act, 30 U.S.C. ~ 815(c)(l). I find that Foust engaged in protected activity when 

118 
he stated that he would no longer sign the electrical book because of the overloaded circuit 

breakers. However, I find that he did not make other complaints about dangers or health or 

safety violations, and that his expression of concern about the use of Nalco was not protected 

activity. 

Approximately one or two weeks prior to May 31, 2001, Foust determined that he would 

no longer sign the electrical book because he did not believe that the electrical circuits met 

applicable standards. His action was prompted by the overloaded circuit breakers near the 

thickener. Tr. 211; ex. R-6 at 34-36. At the hearing, he emphasized the dangers the overloaded 

breakers posed to miners, including the risk of electrocution. Id. When questioned about why 

the breakers were not treated as imminent dangers, however, he responded that the men "never 

[were] around the boxes." Tr. 404. Gary Smith, who became first shift foreman and was then 

Foust's supervisor, recalled him saying that he would no longer sign the electrical book. Tr. 628. 

Foust testified that he told Ellis he would no longer sign the electrical book. Tr. 210, 436-37. 

Ellis did not recall Foust stating that he would not sign the book. Tr. 584-85. I find that Foust 

told both Smith and Ellis that he would no longer sign the electrical book because he believed 

that the overloaded circuit breakers did not comply with safety standards. Foust, therefore, 

engaged in activity protected under the Act. 

I also find that Foust raised concerns about the use of the cationic "Nalco," in the creek. 

He did not refuse to put it in the creek, but sometimes just didn't do it. Tr. 314. His concerns 

were the chemical's toxicity to aquatic life and the effect it might have if it got into the water 

supply of people that lived downstream, and were largely based upon his mistaken belief that the 

creek ran directly into the adjoining river.4 Tr. 216-20, 291. There is no contention that the 

chemical could not be used safely by him and other miners at Manalapan.5 He did not express 

any concern over use of Nalco in the plant's thickener or its placement into the ditch carrying 

water discharged from the plant to a series of settlement ponds. Tr. 216-18, 291, 421. Neither 

Foust nor the Secretary contend that the use of Nalco posed a danger to miners or violated the 

Act or any of the Secretary's health or safety standards promulgated pursuant thereto. Foust' s 

concerns about the environmental impact of that particular use of the chemical were admirable. 

However, his expression of those concerns was not activity protected by the Act. 

4 Manalapan introduced a geological survey of the mine property depicting 

elevations and the layout of the plant and settlement ponds. Ex. R-8. The survey, along with the 

testimony of Ellis and Phillips, its engineer, establish that the creek flowed into a large settlement 

pond, "Pond SG-1," not into the river, and that Manalapan's use of Nalco was consistent with all 

regulatory requirements. Tr. 573-74; Tr. II 56, 75. 

5 The label on the product cautioned that it: "May cause irritation with prolonged 

contact," and advised that the product should not be allowed to "get in eyes, on skin, on 

clothing." Ex. C-20. Foust testified that he read and followed the label's advice and simply 

didn't get it on himself. Tr. 314. 

119 
The Secretary argues that Foust also complained about a number of hazardous conditions 

described by himself and other witnesses. Foust, for example, testified that there were numerous 

electrical hazards, "guards were rotted off," the "catwalk was rotted out," and the "basement was 

full" of coal spills. Tr. 220-21. The Secretary asserts that Foust complained to Ellis about these 

various conditions. However, Foust's testimony about the alleged complaints was very general, 

Jacking as to times, dates and precisely what he complained about, other than lack of manpower. 

Tr. 213-14, 220, 400-01, 434-35. Foust's credibility regarding this issue is highly suspect. I find 

that he did not make complaints about these various alleged safety hazards. 

As a foreman who was designated to conduct daily workplace inspections, Foust had the 

responsibility to report hazardous conditions.6 He acknowledged his responsibility to conduct 

preshift inspections, and his duty to report any hazardous conditions that he found. He testified 

that he did, in fact, note in the preshift reports anything that needed to be fixed, and 

acknowledged that it was his responsibility to correct hazardous conditions, including those 

involving the electrical system. Tr. 401-05, 442; ex. R-6 at 23, 25-26, 40-41, 50-51. Yet, an 

examination of the preshift reports that he authored fails to disclose any significant problems, the 

only notations being that floors needed to be cleaned. Virtually none of the various unsafe 

conditions described by Foust or other witnesses were listed in Foust's preshift reports. Ex. C-3. 

To explain this inconsistency, he testified that his preshift inspections were quite limited. 

"Preshift is just checking the floors and the tunnel checking for methane. It's just a preshift, real 

fast inspection."7 Tr. 403-04. Though he acknowledged that his preshift examination included 

6 30 C.F.R. § 77.1713, requires that the plant be examined at least once during each 

working shift and that a written record be kept of each such investigation "together with a report 

of the nature and location of any hazardous condition found." 

7 Considerable evidence was introduced regarding another reason offered by Foust 

to explain why he did not correct the various safety hazards he described. He testified that 

substantial restrictions had been imposed on his ability to obtain parts and supplies, i.e., that 

every part or supply item that he wanted had to be approved by Ellis or David Patterson, the 

superintendent. Tr. 216. His testimony was marginally supported by Randy Kelly, who worked 

in the parts warehouse until he was laid-off by Bennett on February 16, 2001. He testified that 

the pre-approval policy "seemed" to apply only to Foust, not to the other day shift foremen, but 

didn't know whether Gary Smith, then the second shift foreman, was subject to the same 

restrictions. Tr. 342-43, 355, 364-65. Kelly also explained that the warehouse maintained over 

$1 million worth of parts and supplies, and that restrictions had been placed on the availability of 

some items, especially more expensive items like circuit breakers, because of a theft and 

concerns about waste and cost control. Tr. 347-48. He agreed that Foust got some of the things 

he requested, but not others. 

Several other witnesses; including Frank Sargent, the warehouse manager, and David 

Patterson, the surface superintendent, testified that there were no special restrictions applicable 

only to Foust and described a common sense structure to the expenditure of funds for parts and 

materials. Requests for expensive items, e.g. those costing $500-$1,000 or more, typically had to 

120 
checking for all hazards, including electrical hazards, he testified that he only examined the 

electrical system during the monthly electrical examinations. Id. He explained that he had been 

a foreman for only a short time and that he wasn't familiar with the regulations.8 Id. Despite his 

explanation, Foust acknowledged that the purpose of the preshift inspection was to prevent the 

men on his shift from being exposed to such hazards, and that there was never an unsafe 

condition that he couldn't fix before the men started working. Tr. 402-05, 444-45. 

The record is the same with respect to various electrical problems claimed by the 

Secretary to have existed. Foust testified that he performed a thorough inspection of the 

electrical system each month, checking all the switches, breakers, and everything electrical. 

Tr. 288-89. If anything was wrong he would write it down and then enter the date when it was 

fixed. When he signed the book, he certified that "everything was right" in the electrical system. 

Tr. 209-10. Despite the claims of numerous electrical hazards, Foust signed off on the electrical 

book through April, 2001, certifying that there was nothing wrong with the electrical system.9 

Foust typically described his complaints to Ellis as lack of resources, i.e., "not enough 

men and not enough time to ... get all the stuff done" and not "enough men to run that big of a 

washer." Tr. 213, 434-35; ex. R-6 at 26-27. Moreover, when asked why he was fired, he stated 

it was because of his complaints about the use of Nalco in the creek and his refusal to sign the 

be authorized by management. Commonly used parts and supplies that were in stock, were 

obtainable upon request. Tr. 562-63. Sargent explained that managers initiated a request for 

parts or supplies by filling out a "Warehouse/Purchase Request" form. Respondent's exhibit 5 

consists of a sampling of eight such forms initiated by or on behalf of Foust during February -

April 2001. All of the requests bear notations that the requested items were purchased from a 

supplier. Tr. 667-68. 

The weight of the evidence rebuts Foust's claim, and I find that his access to parts and 

materials was no more restricted than other managers. It would seem that if the availability of 

such items was as restricted as Foust claims, there would be ample supporting evidence in the 

form of purchase requests that bore no indication that the items had been ordered. No such 

documentation was submitted. 

8 Another troubling claim of ignorance by Foust occurred when he was questioned 

as to why he didn't report the alleged safety violations to MSHA. He answered that he didn't 

complain to MSHA because he would have been fired. When asked why he didn't submit 

anonymous complaints (See 30 C.F.R. §§ 43.1-43.8), he stated that he was unaware of his right 

to make anonymous complaints, though he acknowledged receiving training that included the 

subject of miners' rights under the Act. Tr. 378-79. 

9 As noted, infra, MSHA had conducted inspections in the plant during January to 

March, 2001, and served a number of citations on Foust. Foust was responsible for correcting 

those conditions, and they presumably were corrected. 

121 
electrical book. He did not include the alleged complaints about other safety hazards. Tr. 210, 

288, 408; ex. R-6 at 65-68. Ellis testified that Foust had not made any "safety complaints" to 

him. Tr. 569. Smith testified that Foust talked to him about general things, but did not recall 

him making safety complaints. Tr. 624-25. 

I find that, with the exception of the use of Nalco in the creek and the overloaded circuit 

breakers, Foust did not complain about the various other conditions described by him and other 

witnesses. He made "general complaints" about limited resources, primarily what he viewed as 

inadequate time/men to do the job of running the washer. Foust' s general complaints to Ellis 

were not - were not intended to be - and were not taken as - complaints about dangers to miners 

or safety or health violations. When he made them, he was not exercising rights under the Act, 

and was not intending to do so. Rather, he was addressing why he was unable to remedy the 

frequent interruptions in the plant's production. 

Adverse Action 

Foust clearly suffered adverse action. While the May 31, 2001, notice advised him that 

he was "laid off," Bennett intended to discharge him. His departure from Manalapan has been 

treated as a discharge. In any event, a lay-off or discharge would constitute adverse action for 

purposes of his present claim. 

Motivation 

The principle issue as to Foust' s prima facie case is whether the adverse action was 

motivated in any part by his protected activity. In Sec'y on behalf of Baier v. Durango Gravel, 

21 FMSHRC 953, 957 (Sept. 1999), the Commission acknowledged: 

the difficulty in establishing a motivational nexus between protected activity and 

the adverse action that is the subject of the complaint. "Direct evidence of 

[unlawful] motivation is rarely encountered; more typically, the only available 

evidence is indirect. ... 'Intent is subjective and in many cases the discrimination 

can be proven only by the use of circumstantial evidence."' [citing Chacon]. In 

Chacon, we listed some of the circumstantial indicia of discriminatory intent, 

including (1) knowledge of the protected activity; (2) hostility or animus towards 

the protected activity; and (3) coincidence in time between the protected activity 

and the adverse action. Id. We also have held that an "operator's knowledge of 

the miner's protected activity is probably the single most important aspect of a 

circumstantial case" and that "knowledge ... can be proved by circumstantial 

evidence and reasonable inferences." Id. 

122 
As explained below, while Foust was discharged within a week or two of informing Ellis 

that he would no longer sign the electrical book, I find that Bennett made the decision to 

discharge Foust entirely on his own and that he had no knowledge of Foust's protected activity. 

His decision was solely a product of his frustration with the plant's poor production, which he 

largely attributed to Foust's inability to manage effectively. 

Bennett was Respondent's chief witness at the hearing. He impressed me as a candid 

individual, whose overriding concern was profitable operation of the Highsplint facility. He 

testified, without contradiction, that he generally supported his workers, gave them bonuses 

when times were relatively good and was reluctant to take adverse actions, such as discharges. 

He also impressed me as a man who believed strongly in "company loyalty," and who would 

take a dim view of his employees invoking outside forces, such as MSHA, in the operations of 

the facility. In a telling response to a question about whether Foust was called back to work after 

being laid-off, Bennett stated: "No, he filed against me," i.e., Foust had filed a complaint of 

discrimination with MSHA. Tr. II 88. Bennett's expressed hostility toward Foust's posttermination exercise of his right, suggests that he harbored hostility toward miners' exercise of 

rights under the Act. However, there is no evidence of pre-termination hostility or animus 

toward Foust because of any of his claimed complaints. Ellis responded to his "complaints" 

quite benignly, replying "just do [your] job the best [you] could." Tr. 213-14. Foust testified 

that Ellis was not hostile towards him, made no derogatory comments about him, and that he 

liked Ellis. Tr. 389-90, 401. 

Bennett made the decision to discharge Foust without consulting Ellis or anyone else. 

Tr. II 130-33; Tr. 571. Smith handed Foust his lay-off slip and didn't know why the decision had 

been made. Tr. 637-39. Bennett's decision to terminate Foust was the culmination of his 

increasing frustration with the inability of the plant to process sufficient coal. His concerns had 

prompted him to have Goins evaluate the operation. Tr. II 80. Goins eventually reported that, 

while Foust was a hard worker, he was not capable of managing the men. Tr. II 82; Tr. 514-16. 

As Bennett explained: "I was tired of excuses and I'd get reports, every day I get a report and I'd 

look at those reports. It would be the same old thing over and over." Tr. II at 80. Adding to his 

frustration was the fact that production problems persisted despite substantial amounts of 

overtime being worked by second shift miners. Tr. II 85, 130-31. His frustrations had nearly 

reached the breaking point prior to the May 31 incident. Tr. II 84, 130-33. That incident caused 

him to react by ordering the discharge of Foust and the second shift. The plant had been 

operating poorly, the second shift had worked significant overtime the night before, and the plant 

was non-functional at the start of the first shift. Tr. II 130-31. 

Bennett had no knowledge of Foust's protected activity, i.e., his decision to no longer 

sign the electrical book. While he had frequent interaction with Ellis, and clearly was aware of 

Foust's complaints about lack of resources, he regarded them as excuses for Foust's inability to 

remedy the frequent breakdowns that interfered with the plant's production. 

I decline to draw an inference that Ellis informed Bennett of Foust's protected activity, 

because there are a number of possible reasons why Ellis would not have viewed Foust' s action 

123 
as an event meriting Bennett's attention. Foust did not testify to the exact words that he used to 

inform Ellis of his decision. Judging from his demeanor at the hearing, it is unlikely that he did 

so in an aggressive or hostile manner, and there is no claim that Ellis reacted with hostility 

toward Foust. Ellis may not have understood Foust's communication as a "refusal" to sign the 

book, or he may have considered the problem to be a temporary one that would soon be resolved 

by Shakelford's installation of the upgraded breakers. The fact that Manalapan was subsequently 

cited for failing to have examinations of the electrical circuits certified for the month of May, 

suggests that Ellis placed little significance on Foust's action. He neglected to assure that the 

examination and certification were done, despite the ready availability of other qualified 

individuals, including Shakelford and Rodney Tipton, a foreman at the R&B plant. Even if the 

new breakers could not have been installed by the end of the month, the certification could have 

been done with a notation of the problem of the overloaded breakers, along with the fact that new 

breakers were on order. Inspectors were not likely to fail to discover such an obvious problem, 

and it likely would have been better to note it, than ignore it. Inspectors from the State of 

Kentucky were aware of the problem, and had not shut the plant down. 

There is no direct evidence of unlawful motivation and there is not enough circumstantial 

evidence to justify a conclusion that Bennett's discharge of Foust was motivated, in any part, by 

Foust's protected activity. Bennett had no knowledge of Foust's protected activity, the "most 

important" element of a circumstantial case. There was no animus or hostility toward Foust 

because of his protected activity. Only a limited coincidence in time, one to two weeks, between 

Foust's protected activity and the adverse action suggests a relationship between the two. I find 

that Bennett's decision to discharge Foust was not motivated, in any part, by Foust's protected 

activity. Therefore, Complainant failed to establish a prima facie case of discrimination. 

I reach this conclusion based upon all of the evidence and my evaluation of the credibility 

of the witnesses, chiefly Bennett and Foust. Bennett testified in an open and forthright manner, 

and was consistent and convincing in his description of the economic problems and frustrations 

that resulted from the inability of the preparation plant to operate efficiently. His openness was 

apparent even when it was not to his advantage, e.g., when he expressed his hostility to the fact 

that Foust had exercised his right to file a complaint of discrimination under the Act. 10 I found 

highly credible his testimony that his decision to discharge Foust and the second shift miners was 

motivated by his building frustration with the operation, which was focused on Foust, who had 

been reported to be a poor manager. 

10 Seizing on Bennett's statement at the hearing, the Secretary has argued that 

Manalapan's failure to call Foust back to work was retaliation for his filing of the discrimination 

complaint. While Bennett expressed hostility to Foust' s exercise of his right to file a complaint 

of discrimination, I do not find that he discriminated against Foust by not recalling him. Bennett 

had intended that Foust be discharged, not laid-off, and he had no intention of re-employing him. 

Manalapan's operations were becoming smaller, Ellis explained that they didn't need another 

foreman, and Bennett felt that putting a former supervisor back to work in a non-supervisory 

position would have posed problems. 

124 
As noted above, I believe that Foust inflated his claims that numerous unsafe conditions 

existed at the plant and the nature of his "complaints" to Ellis. His overall demeanor was highly 

deferential, and appeared consistent with that of someone who might not be an effective 

supervisor. I have no doubt that he was a hard worker, both prior to and after becoming a 

foreman. However, as foreman, his primary responsibility was making sure that his men worked 

hard, something that, at least as far as Bennett was informed, he did not do effectively. 

I have also considered the many arguments advanced by the Secretary, but find them 

insufficient to satisfy Complainant's burden. The Secretary makes much of the fact that 

Respondent terminated only two of the four second shift miners, Foust and Hensley. She asserts 

that, while Napier's move to the day shift was explained, Respondent offered no explanation as 

to why Gross was not also discharged on May 31, 2001. She argues that Manalapan "forgot to 

fabricate a reason for Gross' continued employment after the layoff, further establishing that the 

stated reasons for the 'layoff' were pretextual." Sec'y's Br. 93. However, this "theory" was not 

developed at the hearing. Neither the Secretary, nor the Respondent, probed Gross' status after 

the layoffs. The "hours worked" reports for the time period in question, exhibit R-3, establish 

that Gross worked only two more days. Gross testified that he left the plant voluntarily a couple 

of days after the lay-offs. Respondent may well have been aware of Gross' impending departure 

and may simply have allowed him to work until the date he had chosen to leave, an explanation 

at least as probable as the Secretary's. 

The Secretary argues that the hiring of additional miners after the lay-offs exposes 

Manalapan's explanation as pretext. However, the decision to discharge the second shift was not 

made as a permanent move to reduce labor costs, it was made because Bennett was not satisfied 

with the performance of Foust and the men working the second shift. The hiring of additional 

miners shortly after the lay-offs is consistent with Respondent's explanation of the reasons for 

the decision to discharge Foust. Some additional labor was also required for the significant 

repair effort necessitated by the failure of the thickener, and the need to make other major repairs. 

The Secretary also argues that Ellis' and others conclusion that the clean coal belt had 

been deliberately cut was an attempt to build a pretextual reason for Foust's discharge that "fell 

apart" when the "witnesses didn't have the heart to accuse Foust" of doing it. Sec'y's Br. 90. 

However, as Ellis stated, no one ever accused Foust of cutting the belt and he did not have any 

idea who might have done it. Tr. 572. 589. Bennett never cited a suspicion or belief that Foust 

had damaged the belt as a reason for his decision. 

The Secretary argues that the citations issued during MSHA's inspection of the plant after 

Foust' s departure confirmed the existence of numerous safety violations at the time Foust 

allegedly made his complaints to Ellis. Complainant's exhibit 1 consists of copies of citations 

issued at the preparation plant from May 31 to September 6, 2001. However, it is far from 

certain that most bf the conditions cited existed for that length of time. MSHA had a somewhat 

constant presence at the plant, and had conducted recent inspections. A number of citations had 

125 
been served on Foust in January, February and March, 2001. 11 Ex. R-4. While many of the 

citations issued in the summer of 2001, were similar to those issued earlier, they were cited as 

new violations. There were a number of "accumulation" violations, an ongoing problem at the 

plant. Many of the guarding and electrical violations appear to have been within Foust's ability 

to correct, even with limited resources. In some instances, guards had simply not been replaced. 

In others, guards were extended to cover small openings, which may have been of recent origin. 

Respondent's Affirmative Defense 

Even if Bennett had been aware of Foust' s decision not to sign the electrical book, and 

that knowledge somehow played a part in his decision to discharge him, I find that he would 

have taken the same action based solely upon Foust's unprotected activity, i.e., Bennett's 

perception that Foust was an ineffective manager, largely responsible for failing to remedy the 

frequent breakdowns that plagued the plant. 

In Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-

17 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983), the Commission 

explained the proper criteria for analyzing an operator's business justification affirmative 

defense: 

Commission judges must often analyze the merits of an operator's alleged 

business justification for the challenged adverse action. In appropriate cases, they 

may conclude that the justification is so weak, so implausible, or so out of line 

with normal practice that it was mere pretext seized upon to cloak discriminatory 

motive. 

The Commission and its judges have neither the statutory charter nor the 

specialized expertise to sit as a super grievance or arbitration board meting out 

industrial equity. Once it appears that a proffered business justification is not 

plainly incredible or implausible, a finding of pretext is inappropriate. We and 

our judges should not substitute for the operators' s business judgment our views 

on "good" business practice or on whether a particular adverse action was "just" 

or "wise." The proper focus, pursuant to Pasula, is on whether a credible 

justification figured into motivation and, if it did, whether it would have led to the 

adverse action apart from the miner's protected activities. If a proffered 

justification survives pretext analysis ... , then a limited examination of its 

substantiality becomes appropriate. The question, however, is not whether such a 

justification comports with a judge's or our sense of fairness or enlightened 

business practice. Rather, the narrow statutory question is whether the reason was 

11 It was Ellis who appeared to be most concerned about those violations. Foust 

testified that Ellis was "on him" to make sure that the violations were abated, which they 

presumably were. Tr. 388-89. 

126 
enough to have legitimately moved that operator to have disciplined the miner. 

(citations omitted). 

The Commission further explained its analysis in Haro v. Magma Copper Co, 

4 FMSHRC 1935, 1938 (Nov. 1982): 

[T]he reference in Chacon to a "limited" and "restrained" examination of an 

operator's business justification defense does not mean that such defenses should 

be examined superficially or be approved automatically once offered. Rather, we 

intended that a judge, in carefully analyzing such defenses, should not substitute 

his business judgment or sense of "industrial justice" for that of the operator. As 

we recently explained, "Our function is not to pass on the wisdom or fairness of 

such asserted business justifications, but rather only to determine whether they 

are credible and, if so, whether they would have motivated the particular operator 

as claimed." (citations omitted). 

Respondent, through Bennett, advanced a credible business justification for discharging 

Foust. Bennett was extremely concerned about the frequent breakdowns that interfered with the 

plant's production of marketable coal. The raw coal stockpile had grown to excessive 

proportions and threatened to negatively impact the other mining operations. This occurred 

while Foust was foreman in charge of the first shift, essentially in charge of the plant. Bennett's 

concerns caused him to assign one of his trusted managers, Goins, to conduct an evaluation of 

the operation of the plant. Goins reported that there were a lot of problems with what appeared 

to be deferred maintenance items, and that Foust did not appear to have control of his men. 

Bennett switched the first and second shifts, hoping to avoid more drastic action. All of this 

occurred prior to Foust's protected activity, which is alleged to be the "primary" reason for his 

discharge. Things did not improve significantly. Bennett's frustrations built to the point that the 

incident of May 31, 2001, prompted him to discharge Foust. 

As noted above, I have found that Bennett was not motivated, in any part, by Foust's 

protected activity, of which he had no knowledge. Even if it could be said that Foust's discharge 

was based in some part on his protected activity, I find that Bennett would have taken the adverse 

action against Foust based solely upon legitimate business reasons. 12 

To some extent, Foust may have been unfairly blamed for the plant's problems. As 

Bennett stated, he hadn't realized that the plant was in as bad a shape as it was. Tr. II 124. With 

the accumulation of deferred, or poorly performed, maintenance, breakdowns were frequent and 

production was impaired. While Foust had significant responsibility for maintenance, his 

12 I would reach the same conclusion with respect to Foust's expression of concern 

over the use of Nalco in the creek, if that action were deemed to be protected activity. 

127 
protests about limited resources may have had some legitimacy. 13 On the other hand, if Foust 

had been a more effective manager, maintenance tasks might have been better performed. It is 

not the function of this Administrative Law Judge to resolve the ultimate fairness of whether 

Foust should have born the brunt of Bennett's dissatisfaction with the plant's poor operation. 

I am convinced that it was reasonable for Bennett to have concluded that Foust bore enough 

responsibility for the problems that he should be discharged, for that reason alone. 

ORDER 

For the reasons stated above, I find that Bennett's decision to discharge Foust was not 

motivated in any part by Foust's protected activity. Alternatively, I find that, had Bennett been 

aware of Foust's protected activity, he would have made the same decision based solely upon 

legitimate business considerations. Accordingly, the Complaint of Discrimination is hereby 

DISMISSED. 

Distribution: 

Donna E. Sonner, Esq. Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones 

Rd., Suite B-201, Nashville, TN 37215 (Certified Mail) 

Susan C. Lawson, Esq., Lawson & Lawson, PSC, P.O. Box 837, Harlan, KY 40831 (Certified 

Mail) 

Danny Foust, P.O. Box 311, Cawood, KY 40815 (Certified Mail) 

/mh 

13 Although the Secretary's argument that Manalapan had decided not to spend 

money on the plant fails to recognize that it maintained over $1,000,000 in parts and supplies and 

had spent over $75,000 for work by R.T. Welding during the year 2000. 

128 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

JASON C. SHEPERD, 

Complainant 

v. 

BLACK Ifil.LS BENTONITE, 

Respondent 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

March 13, 2003 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2002-466-DM 

RMMD02-13 

Mine l.D. 48-00243 

Casper Plant 

DECISION GRANTING RESPONDENT'S MOTION TO DISMISS 

ORDER OF DISMISSAL 

Before: Judge Manning 

This proceeding was brought by Jason C. Sheperd against Black Hills Bentonite ("Black 

Hills") under section 105(c) 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. Mr. Sheperd alleges, in part, that on August 

9, 2000, he sustained a serious injury to his neck "while throwing 100 pound bags of bentonite" 

in Respondent's Casper, Wyoming, plant. He contends that Black Hills showed no concern for 

his injury and continued to require him to perform hard physical labor, which exacerbated his 

injury. In its answer, Black Hills denies Mr. Sheperd's allegations and maintains that he has not 

stated a claim that can be remedied under section 105(c)(3) of the Mine Act. 

After taking Mr. Sheperd's deposition, Black Hills filed a motion to dismiss this case. 

Mr. Sheperd opposes the motion. Because I find that Mr. Shepherd has not stated a claim that 

can be granted relief under section 105( c) of the Mine Act, I grant the motion to dismiss. The 

facts described below are facts that are not in dispute or are facts provided by Mr. Sheperd. 

I. BACKGROUND 

In March 2000, Mr. Sheperd, who is now 33 years old, began working at the Casper Plant 

as a loader operator/laborer. He believed that eventually he would become a plant operator. This 

plant mills bentonite clay for use in kitty litter and other products. At some point in time, 

Shepherd suffered a back injury while moving a conveyor belt. On August 9, 2000, Sheperd was 

throwing heavy bags onto the bed of a truck when he strained his neck. His neck hurt so much 

later that day, that h~ could not move it. The plant operator recommended that he see a doctor. 

A doctor diagnosed the injury as a strained muscle in his neck. The doctor prescribed several 

medications and gave Sheperd a letter stating that he could return to work as long as he was 

assigned "light duty" tasks. 

129 
Mr. Sheperd alleges that when he returned to work, he gave the light duty letter to the 

plant operator who handed it to the plant superintendent, Andy MilJs. Mills "read it and laughed 

as he handed it back to me and said 'if you can't throw bags then you need to go home.'" 

(Sheperd's Discrimination Complaint). Sheperd apparently left for the day, but returned to work 

the following day because he needed to support his two children. During his deposition, Sheperd 

stated that Black Hills did not provide sick leave and he had not earned any vacation leave. 

(Depo. 93-94). When Sheperd returned to work, Mills told him to go throw bags even though he 

knew of Sheperd's work restrictions, knew that he was in pain, and knew that he was taking 

strong medication for the pain. Sheperd states that most of his work at the plant involved lifting 

100 pound bags of bentonite. He also operated loaders and forklifts. In addition, Sheperd 

worked in the warehouse part of the time. He states that he performed these assigned tasks on 

succeeding days even though he was in severe pain and on prescription medications that cause 

drowsiness and alter one's judgment. Sheperd states that he was given light duty work on some 

days. (Id. at 23-24). He did not ask anyone from management if he could be put on temporary 

total disability through the Wyoming workers' compensation program because he did not know 

that it was available. (Id. at 96-97). As discussed below, he started collecting workers' 

compensation after his back surgery. 

Mr. Sheperd further states that he visited David Iszler, a doctor of chiropractic, on August 

11, 2000, because his pain was increasing. Dr. Iszler gave Sheperd a light duty letter which 

Black Hills also ignored. Sheperd alleges that because he continued to perform strenuous work 

at the plant, the pain increased in his neck and lower back and his headaches intensified. His 

arms and legs also became numb. His legs gave out at the plant several times causing him to fall 

to the ground. The plant safety manager helped him up on one occasion. When Sheperd asked 

the safety manager for light duty work, he was told that only Mr. Mills could assign such work. 

Sheperd maintains that when another employee was injured at work as a result of falling from a 

truck, he was assigned light duty work 

On August 13, 2000, Dr. Iszler issued a letter stating that Sheperd should be restricted 

from lifting more than ten pounds. Sheperd was still required to lift 100 pound bags and perform 

his other duties. Sheperd believed that he would be fired if he refused to do the assigned work. 

His supervisors told him that he had to lift the bags of bentonite because there was no other work 

available to him. (Depo. at 35-36). On some occasions, however, he was given tasks that did not 

involve heavy lifting but required him to be hunched over all day. Id. at 37. Sheperd stated that 

he stayed at work most days because he needed the money. Sheperd stated that other injured 

employees had been given light duty work at the Casper Plant, which consisted of sweeping and 

vacuuming. Sheperd believes that other employees who had been injured on the job were treated 

better that he was treated in spite of the four restricted duty notes he obtained from doctors. 

One of the light duty letters from Dr. Iszler, dated October 19, 2000, stated "Jason 

Sheperd has been instructed to refrain from any heavy lifting until further notice." (Depo. Ex. 1, 

p. 22). After that letter was given to Black Hills, Sheperd was transferred to Respondent's HT 

130 
Plant because the company did not want him doing any more heavy lifting. (Depo. at 53). 

Sheperd stated that it was "a little lighter-duty work." Id. at 54. He had previously been offered 

a position at the Black Hills plant in Worland, Wyoming, but he turned it down despite the fact 

that the work at that plant was not very strenuous because he was hoping to get an easier operator 

job at the Casper Plant. Id. at 55-57. At the HT Plant, Sheperd was required to lift empty pallets 

weighing about 50 pounds, but he was not required to lift or carry 100 pound bags of product. Id. 

at 61-62. 

At some point after October 19, 2000, Sheperd began seeing Dr. Kenneth Pettine of the 

McKee Medical Center in Casper. On March 7, 2001, Sheperd underwent surgery as a result of 

his injuries: a "posterior lumbar interbody fusion from IA through LS-SL" (Ex. A to Sheperd's 

response to motion to dismiss). On the same day, he underwent a "C6-7 anterior cervical 

fusion." Id. His last day at work before the surgery was about February 28, 2001. Sheperd had 

to return for more surgery on March 9, 2001, because "the screws were impinging into the aorta 

and were very close to and touching the iliac veins." Id. He was given ongoing physical therapy 

and never returned to work after the surgery. He was placed on temporary disability by the State 

of Wyoming's Division of Workers' Safety and Compensation. In addition, he continued to 

receive health benefits from Black Hills. On March 26, 2002, the State of Wyoming issued a 

final determination of permanent partial disability benefits based on a 45% impairment of the 

whole person. Sheperd's employment at Black Hills was terminated on or about April 30, 2002, 

because his impairment rating precluded him from returning to his job. Sheperd believes that he 

could do office or lab work for Black Hills. (Depo. at 75-76). 

On May 10, 2002, Sheperd filed his discrimination complaint with MSHA alleging that 

he had been terminated from his employment and that the date of the alleged discriminatory 

action was August 9, 2000. MSHA notified Sheperd on July 1, 2002, that it determined that he 

had not been discriminated against. 

Sheperd states that he engaged in protected activity after his injury when he told his 

supervisors that he could not lift heavy bags of bentonite. He states that he did not know that he 

had the right under section 105( c) of the Mine Act to refuse to work "for fear of my health or 

safety or for those around me." Id. at 14, 35-36. He states that if he had known about section 

105(c) rights, "I would have just stood there and not worked, especially with all of these narcotic 

prescriptions, driving the loader at night, you're dizzy, you're light-headed, blurred vision, you're 

driving on narcotics, you could run someone over." Id. 105. Sheperd believes that he was a 

safety hazard to himself and others after his injury but he did not go home because "that doesn't 

pay the bills." Id. 116. Sheperd states that Black Hills took adverse action against him by 

making him work even though his supervisors knew that his doctors advised the company that he 

could only perform light duty work. Id. at 39. Shepherd believes that Black Hills' failure to 

honor the light duty releases constituted adverse action. 

On December 11, 2002, MSHA received a hazard complaint under section 103(g)( 1) of 

the Mine Act. The complaint alleged that since 1999 a number of employees working for Black 

131 
Hills had been under the influence of pain medications that could impair their abilities to work 

safely. On January 2, 2003, MSHA issued a citation at each of Black Hills' three plants alleging 

a violation of 30 C.F.R. § 56.20001. The citations state that the "operator has allowed employees 

to work while taking narcotics." The narcotics alleged to have been taken are various 

prescription medications. Section 56.20001 provides, in part, that persons "under the influence 

of alcohol or narcotics shall not be permitted on the job." Black Hills contested these citations 

under 29 C.F.R. § 2700.20. 

II. ANALYSIS OF THE ISSUES 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners "to 

play an active part in the enforcement of the [Mine] Act" recognizing 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. 

181, 95m Cong., 151 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95m Cong., 2nd Sess., 11gislative History of the Federal Mine Safety and 

Health Act of 1977 at 623 (1978). "Whenever protected activity is in any manner a contributing : 

factor to the retaliatory conduct, a finding of discrimination should be made." Id. at 624. 

A miner alleging discrimination under the Mine Act establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient to support a conclusion that he 

engaged in protected activity and suffered adverse action motivated in any part by that activity. 

Secretary of La.boron behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 

(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of La.boron 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v. 

Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the 

primafacie case by showing either that no protected ·activity occurred or that the adverse action 

was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine 

operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving 

that it was also motivated by the miner's unprotected activity and would have taken the adverse 

action for the unprotected activity alone. Id.; Robinette, 3 FMSHRC at 817-18; see also Eastern 

Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4m Cir. 1987). 

In its motion to dismiss, Black Hills argues that Sheperd did not engage in any protected 

activity and, in the alternative, that he did not suffer any adverse action as a result of engaging in 

protected activity. Black Hills argues that in order to exercise the right to refuse to work, the 

complainant must have a good faith reasonable belief that the work involves a hazardous 

condition. It argues that a complainant's refusal to work because of a pre-existing medical 

condition does not qualify. In this instance, Sheperd did not actually refuse to work because he 

continued working in spite of. his injuries. The Commission has held that a miner's absences 

from work due to a medical condition exacerbated by his job duties does not constitute a work 

refusal. It contends that Sheperd' s claim that he did not know about his rights under section 

132 
105(c) is belied by the fact that he took annual refresher training on April 5, 2000, which 

included a section on section 105(c). Black Hills maintains that Sheperd did not refuse to 

perform his job and did not exhibit conduct manifesting a work refusal. Consequently, it argues 

that there was no protected activity in this case. 

Black Hills also argues that, even if Sheperd established that he engaged in protected 

activity, he did not suffer any adverse consequences as a result of that activity. Neither telling a 

miner to keep working nor telling him to go home when he has suffered an occupational injury 

can form the basis for an adverse action under section 105(c). It argues that the Mine Act does 

not require continued employment or provide for disability benefits when a miner is not capable 

of performing a job because of the miner's physical limitations, even if these limitations are the 

result of an on-the-job injury. 

Sheperd believes that he engaged in protected activity when he was ordered to perform 

tasks that he was physically unable to do and he was not told that he had a right to refuse to 

perform these tasks. Sheperd argues that he continued working only because he did not know 

that he had a right to refuse to work. He states that had he known that he could refuse to work, 

he would have "just stood there and not worked, especially with all of these narcotic 

prescriptions" he was taking. (Depo. at 105). Sheperd told his supervisors that he had injured 

his back while throwing the bags of bentonite but he continued working because Black Hills 

would not permit him to take time off with pay and did not advise him that section 105(c) gave 

him the right to refuse to work. By continuing to work while on strong prescription medications, 

he presented a safety hazard to himself and to others as evidenced by the citations issued by 

MSHA in January. He argues that the failure of Black Hills to assign him light duty tasks that 

would not require heavy lifting constituted an adverse action under the Mine Act. 

I find that Sheperd did not engage in protected activity. A miner's absence from work 

due to a medical condition that is made worse by the miner's normal job duties does not 

constitute a work refusal. Perando v. Mettiki Coal Corp., 10 FMSHRC 491, 494-95 (Apr. 1988); 

Dykhoffv. U.S. Borax, Inc., 22 FMSHRC 1194, 1199 (Oct. 2000). In Perando, Ms. Perando had 

contracted industrial bronchitis from her exposure to coal dust in the mine. She argued that her 

protected activity was her request to work in a less dusty environment coupled with her doctors' 

letters that stated that she should no longer be required to work underground. The Commission 

held that neither "Perando' s acceptance of Mettiki 's offer of extended sick leave nor her request 

while on sick leave for a transfer to a surface position constitutes a work refusal." 10 FMSHRC 

at 495. As in Perando, there was no work refusal here. Sheperd's request that he be given work 

that did not involve heavy lifting and the letters from his doctors asking that he not be required to 

lift heavy objects is not a work refusal. 

Sheperd believes that if he had refused to work, his refusal would have been protected by 

section 105( c ). The anti-discrimination provisions of the Mine Act were designed to protect a 

miner from having to work in the face of hazards created by his employer. For example, if a 

mine operator requires a miner to work around equipment that has exposed moving machine 

133 
parts that are not guarded, the miner could reasonably and in good faith refuse to perform work 

around the equipment until guards were installed on the machinery to protect him. Section 

105(c) of the Mine Act protects against hazardous conditions present in the work environment 

that are under the control of the mine operator rather than problems related to a particular miner. 

See Price v. Monterey Coal Co., 12 FMSHRC 1505, 1519 (Aug. 1990) (Commissioner Doyle 

concurring). "While a particular miner may hold a good faith, reasonable belief that it is unsafe 

or unhealthy for him or her to [lift and throw heavy bags of bentonite because of a back injury he 

sustained at work or to operate equipment while taking prescription medication for his injury], I 

do not believe that these are rights protected by the Mine Act or that Congress intended the 

operator to be charged with discrimination for failing to accommodate them, irrespective of the 

seriousness of the hazard." Id. The Mine Act was not designed to "provide continuing 

compensation or disability benefits for individuals who, because of certain physical impairments 

or injuries, would find working most jobs in the mining industry impossible." Collette v. Boart 

Longyear Co., 17 FMSHRC 1121, 1126 (July 1995) (AU). 

Sheperd did not have the right under section 105(c) to refuse to perform his normal job 

assignments when management did not give him light duty work. Section 105(c) does not grant 

a miner the right to refuse his assigned duties because he is no longer capable of performing them 

as a result of an injury. The injuries that Mr. Sheperd sustained are obviously quite devastating 

and lamentable. Because of these injuries, he will no longer be able to perform the type of work 

that is typically required in the mining industry. Nevertheless, the Mine Act was not designed to 

remedy such problems. "It is clearly not the purpose of the Act, but rather worker's 

compensation, social security disability, and other similar laws to provide loss of income 

protection under these circumstances." Collette, at 1126. 

It appears that Sheperd started taking strong prescription medicine such as muscle 

relaxers and pain medication after he was injured. MSHA issued citations in January 2003 as a 

result of these allegations. Sheperd may have created a hazard to himself and others because he 

continued working at the plant while taking these medications. This fact does not establish that 

Sheperd engaged in protected activity, however. It merely demonstrates that he was not capable 

of performing work that was required by his job while taking these medications. 

Sheperd also alleges that he was treated differently from other injured employees because 

he was not given light duty assignments while other injured employees were. Assuming that to 

be the case, it does not change the result because there can still be no showing that he engaged in 

protected activity in this case. While such disparate treatment may have been unfair, the 

Commission has cautioned its administrative law judges that the "Commission does not sit as a 

super grievance board to judge the industrial merits, fairness, reasonableness, or wisdom of an 

operator's employment policies except insofar as those policies may conflict with rights granted 

under section 105(c) of the Mine Act." Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 

(December 1990) (citations omitted). As discussed above, requiring Mr. Sheperd to perform his 

standard job duties after he was injured did not violate section 105(c) and there is no evidence 

that Black Hills failed to assign him light duty work because of activity protected under the Mine 

134 
Act. In addition, I cannot draw such an inference from the record in this case. 

ID. ORDER 

For the reasons set forth above, Black Hills Bentonite's motion to dismiss is GRANTED 

and the complaint of discrimination filed by Jason C. Sheperd against Black Hills Bentonite 

under section 105(c) of the Mine Act is DISMISSED. 

Distribution: 

Richard W. anning 

Administrative Law Judge 

Mr. Jason C. Sheperd, P.O. Box 1671, Mills, WY 82644-1671 (Certified Mail) 

Karen L. Johnston, Esq., Jackson Kelly, 1099 18th Street, Suite 2150, Denver, CO 80202-1958 

(Certified Mail) 

RWM 

135 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

March 18, 2003 

CASEY J. MAYBERRY, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. WEST 2002-561-D 

DENV CD 2002-14 

Mine l.D. 05-04452 

Sanborn Creek Mine 

OXBOW MINING, LLC, 

Respondent 

Appearances: 

Before: 

DECISION 

Casey J. Mayberry, Hotchkiss, Colorado, pro se; 

James T. Cooper, Oxbow Mining, LLC, Somerset, Colorado, for 

Respondent. 

Judge Manning 

This case is before me on a complaint of discrimination brought by Casey J. Mayberry 

against Oxbow Mining, LLC, ("Oxbow") under section 105(c)(3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). Mr. Mayberry alleges that he was 

fired by Oxbow after he called the Department of Labor's Mine Safety and Health 

Administration ("MSHA") to complain about ventilation at the mine. An evidentiary hearing 

was held in Delta, Colorado. For the reasons set forth below, I find that Mr. Mayberry did not 

establish that Oxbow discriminated against him in violation of section 105(c) of the Mine Act. 

I. BACKGROUND AND SUMMARY OF THE EVIDENCE 

Oxbow operates the Sanborn Creek Mine, an underground coal mine, in Delta County, 

Colorado. Althqugh Oxbow employs miners, it also obtains miners through a temporary 

employment agency called Rocky Mountain Miners ("Rocky Mountain") when it needs 

additional miners on a temporary basis. Mr. Mayberry started working at the mine in August 

2001 as an employee of Rocky Mountain. Mayberry was not on Oxbow's payroll but was a 

temporary contract miner who was paid on an hourly basis by Rocky Mountain. He worked on 

the graveyard shift; a non-production shift, rock dusting and cleaning up around conveyor belts. 

(Tr. 8). 

136 
Mayberry testified that in mid-October 2001, he called MSHA to complain about 

ventilation in the longwall section. (Tr. 9). This safety complaint to MSHA is not mentioned in 

the written discrimination complaint that he filed with MSHA on June 4, 2002. Indeed, I first 

learned about this allegation at the hearing because there is no mention of a safety complaint in 

the official Commission file. He testified that he discussed this October safety complaint with 

the MSHA investigator during her investigation of his discrimination complaint. Mayberry 

testified that he called MSHA in October to complain about the ventilation curtains in the 

longwall section. He stated that an MSHA inspector came to the mine to investigate his safety 

complaint and he believes that MSHA issued a citation. Id. He testified that the MSHA 

inspector did not talk to him when he came to the mine to inspect the ventilation in the longwall 

section. 

On or about October 26, 2001, Mayberry talked to Brad Hanson and Lou Graco at Bowie 

Resources Limited, another coal mine operator in Delta County, to see if he could get a job there 

as a permanent employee. Mayberry was offered a position at Bowie Resources and he accepted 

the job. (Tr. 16). A few days later, Mayberry told James Cooper, Oxbow's vice president of 

operations, that he had taken a position with Bowie Resources and he gave Cooper notice that he 

would no longer be working at the Sanborn Creek Mine for Rocky Mountain. He was scheduled 

to start working for Bowie Resources on November 15, 2001. 

At about 2:00 am on November 8, 2001, Mr. Mayberry was injured at the Sanborn Creek 

Mine when a rock fell from the roof and hit his left foot. (Tr. 12, 25-26). Mayberry was rolling 

up dust hose at the time. He estimated that the rock weighed between 45 and 65 pounds and 

measured about 1 Y2 feet by 2 feet. Cameron Rountree, another miner on the crew, attempted to 

help Mayberry and was struck on the hand by falling rock. (Tr. 26). After Mayberry was 

removed from the mine, an air cast was put on his leg and he was taken to Delta County 

Memorial Hospital. The extent of his injuries was not immediately known because his foot was 

swollen. On November 11, 2001, local physicians could not determine if he was seriously 

injured. (Tr. 16). He subsequently saw a specialist in Grand Junction, Colorado. Mayberry was 

eventually diagnosed with "peripheral nerve damage, either severed or beyond repair." (Tr. 14, 

20). It was later determined that he "sustained a twelve percent (12%) scheduled impairment to 

lower left extremity." ("Full and Final Settlement Agreement and Motion for Approval" filed 

with the Colorado Division of Worker's Compensation~ Tr. 14). Mayberry was on crutches for 

several months as a result of his injury and did not work for Rocky Mountain at the Sanborn 

Creek Mine after November 8. 

At about 7:30 am on November 8, 2001, Mayberry returned to the bath house at the mine 

to retrieve his belongings and his truck. Mayberry testified that Fred English, the assistant safety 

director at the mine, approached him. Mayberry testified that English said that he knew that 

Mayberry made the safety complaint to MSHA and that "Oxbow does not appreciate complaints 

to MSHA." (Tr. 14, 21-22). Mayberry said that English continued by saying that if "I have a 

problem with the way they do things, I should take it up with management or seek employment 

elsewhere." (Tr. 14). 

137 
At some point after November 11, 2001, Mayberry called Brad Hanson at Bowie 

Resources to tell him that he could not start working on November 15 because he was injured 

and asked if he could start working at a later date. (Tr. 17). Mr. Hanson advised him that Bowie 

Resources could not hold the position open for more than two weeks, so the offer of employment 

was withdrawn. Mayberry testified that he then went to see Cooper to tell him "to pull that twoweek notice." (Tr. 18). Mayberry believed that the "two-week notice was revoked automatically 

once he was injured." Id. Cooper told him that, although he was sorry, Oxbow could not offer 

him a position. (Tr. 19). Cooper advised Mayberry that he had only been a contractor at Sanborn 

Creek and "part of being a contractor is running that risk." Id. Mayberry called Cooper several 

times after that to try to get his old job back without success. Mayberry maintains that he 

engaged in protected activity when he called MSHA to complain about ventilation in the 

longwall section. (Tr. 21). He believes that the adverse action was the failure of Oxbow to 

rehire him after he had revoked his two-weeks notice and the intimidation he received from 

English on the morning of November 8. (Tr. 21, 71-73). 

Mayberry received a medical release to return to work in late March or early April 2002. 

(Tr. 20). Soon thereafter he started working for Rundle Construction Company, another 

contractor, which "does earth moving for Oxbow." Id. He worked for Rundle Construction at 

the Sanborn Creek Mine from April 2002 through October 2002 when he was laid off. (Tr. 23-

24). On June 4, 2002, Mayberry filed his discrimination complaint against Oxbow with MSHA. 

By letter dated August 20, 2002, MSHA advised Mayberry that it determined that Oxbow had not 

discriminated against him. Mayberry filed this case with the Commission on September 20, 

2002. 

Cameron Rountree testified for Mayberry. Rountree was in the bath house on the 

morning of November 8, 2001. Rountree testified that English approached them to find out what 

happened that shift. (Tr. 27). He took a quick statement from both of them about the accident. 

Rountree testified that English then looked at Mayberry and said, "this is a small coal mining 

community ... and we don't appreciate you calling MSHA." (Tr. 27-28). Rountree said that 

English told Mayberry that "you should talk to your foreman or upper management before you 

take that action." (Tr. 28). Rountree stated that English's tone of voice was firm and he seemed 

agitated. 

Mr. English testified that, although he took a statement from Mayberry about the 

accident, he did not discuss an MSHA complaint with Mayberry. (Tr. 32). English stated that a 

number of MSHA complaints have been made at the mine and he does not know who made these 

complaints. Id. English testified that he was not aware that Mayberry phoned in a complaint to 

MSHA. (Tr. 33). English was adamant that on November 8, 2001, he did not know that 

Mayberry had complained to MSHA about safety conditions at the mine and that he did not have 

any discussion with Mayberry about safety complaints to MSHA. (Tr. 38-41, 75). In addition, 

English testified that, during mine safety and health training, company representatives tell miners 

that the company has an open door policy to bring safety complaints and that if a miner is not 

satisfied with management's response "then by all means contact the Mine Safety and Health 

138 
Administration." (Tr. 40). English further stated that "we do not have a problem with those calls 

[to MSHA]." Id. MSHA inspectors are instructors at the training. 

James Cooper testified that he had only two face-to-face contacts with Mayberry. The 

first meeting was when Mayberry came into his office in late October 2001 to tell him that he 

would only be working for Rocky Mountain for two more weeks because he was going to work 

at the Bowie Mine. (Tr. 44). Cooper wished him good luck and called Randy Litwiller, 

Oxbow's production superintendent, to tell him that Mayberry was leaving. Oxbow was hiring a 

few permanent full time employees at that time and so Cooper asked Litwiller if he would be 

interested in hiring Mayberry as an Oxbow employee. (Tr. 45). A few days later, Litwiller told 

him that he had talked to a few people who had worked with Mayberry and that he was not 

interested in hiring him. (Tr. 45; 58-59). 

Cooper testified that the second meeting he had with Mayberry occurred the day before 

his accident. (Answer to Discrimination Complaint; Tr. 45, 73). At that time, Mayberry asked 

Cooper if he could stay on at the Sanborn Creek Mine as an Oxbow employee because he would 

·~ust as soon stay at Oxbow." (Tr. 45). Cooper replied that he did not have a job for him. When 

Mayberry talked to him, Cooper understood that Mayberry wanted to stay on as a full-time 

Oxbow employee, not as a Rocky Mountain employee. (Tr. 55-56). Mayberry seemed interested 

in the benefits that Oxbow offered. (Tr. 58). After Mayberry's accident on November 8, 2001, 

Cooper said that he received a voice mail message on his phone from Mayberry that was "very 

belligerent and loud and rude." (Tr. 53). Cooper testified that he was not aware of Mayberry's 

safety complaint to MSHA until he met with him to discuss settling this case in response to the 

prehearing order. (Tr. 47, 73-74). 

Mr. Litwiller testified that he did not know that Mayberry had filed a safety complaint 

with MSHA when he discussed with Cooper whether he would be interested in hiring Mayberry 

as a permanent, full-time employee. (Tr. 60). Litwiller testified that when a Rocky Mountain 

employee gives notice that he is leaving, Litwiller talks to his supervisor to find out if he is a 

"real good hand." (Tr. 62). If the supervisor replies that Oxbow will not be "losing anything" by 

letting him go, then no job offer is made. Id. Litwiller has no specific recollection of his 

discussions about Mayberry. (Tr. 63). Litwiller also stated that in November 2001 the total 

workforce at the mine was about 230 people (Tr. 61). 

II. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners "to 

play an active part in the enforcement of the [Mine] Act" recognizing 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. 

181, 95lh Cong., P1 Sess. 35 (1977), reprinted in Senate Subcommittee on Lab~r, Committee on 

139 
Human Resources, 95th Cong., 2°d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 623 (1978). "Whenever protected activity is in any manner a contributing 

factor to the retaliatory conduct, a finding of discrimination should be made." Id. at 624. 

A miner alleging discrimination under the Mine Act establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient to support a conclusion that he 

engaged in protected activity and suffered adverse action motivated in any part by that activity. 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 

(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981 ); Driessen v. 

Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the 

primafacie case by showing either that no protected activity occurred or that the adverse action 

was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine 

operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving 

that it was also motivated by the miner's unprotected activity and would have taken the adverse 

action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see 

also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987). 

There can be no question that calling MSHA to complain about safety and health 

conditions at a mine is an activity protected under the Mine Act. In addition, if a mine operator 

takes any adverse action against a miner for making such a complaint, a violation of section 

105(c) has been established. In this case, however, I find that Mr. Mayberry did not establish that 

he was discriminated against in violation of the Mine Act, as discussed below. 

The discrimination complaint filed by Mayberry does not mention that he made a safety 

or health complaint to MSHA. The discrimination complaint also does not state that he was 

denied the opportunity to continue working for Rocky Mountain or Oxbow because he made a 

safety complaint. Mayberry' s discrimination complaint first describes his accident and the fact 

that he had given Oxbow notice that he was leaving because he obtained a job at Bowie 

Resources. The complaint then states that Bowie Resources told him that it could not hold the 

job open for him. The remainder of the discrimination complaint states: 

I spoke to Jim Cooper again to revoke my 2 week notice and he 

told me I was fired. He said that Randy Litwiller told him that I 

had given my notice and that it was too bad. Neither one of them 

seemed to care that I was hurt and now unemployed with a family 

to take care of. 

Mr. Cooper testified that Mayberry did not mention that he had called MSHA to complain about 

safety or health conditions until the end of their settlement discussions prior to the hearing in this 

case. As stated above, none of the pleadings or documents filed with the Commission mention 

prior safety or health complaints. At the hearing, I asked Mayberry to describe what conditions 

he had complained about in October 2001 and his answer was vague and somewhat inconsistent. 

140 
First, he testified that he complained because the ventilation curtains "were hung in front of the 

gob along the longwall" and that they were blocking the methane detectors. (Tr. 10). Then he 

stated that the curtains "were keeping the gob air in that specific area." (Tr. 10). Finally, he 

testified that "they weren't ventilating anything down there .... " Id. Mayberry testified that he 

discussed his prior safety complaint with the MSHA investigator who investigated his 

discrimination complaint. (Tr. 90). The fact that Mayberry did not refer to a prior safety 

complaint to MSHA until late in this proceeding raises questions in my mind. Nevertheless, for 

purposes of this decision, I will assume that in mid-October 2001 Mayberry called MSHA to 

complain about safety conditions in the mine. Consequently, I find that Mayberry engaged in 

protected activity. 

I find, however, that Mayberry did not establish that Oxbow's decision not to hire him 

was motivated in any part by his protected activity. First, it must be noted that section 105(c) 

protects applicants for employment as well as miners. An applicant for employment establishes a 

violation of section 105(c) if he proves that a mine operator did not hire him because he had 

complained to MSHA about safety conditions while employed at another mine. I find that 

Mayberry was not "fired" from his temporary job at the mine with Rocky Mountain because he 

gave notice to Cooper that he was leaving for another job. He voluntarily quit his job with 

Rocky Mountain. The issue is whether Oxbow's decision not to consider him for a permanent 

full-time job with the company was motivated in any part by the fact the he called MSHA to 

complain about ventilation in October 2001.· 

Mayberry testified that English confronted him about his call to MSHA on the morning of 

November 8, 2001 and that he felt intimidated by English. Mr. Rountree also testified that 

English told Mayberry that Oxbow did not appreciate his call to MSHA. English, on the other 

hand, denied making such statements and denied that he even knew that Mayberry had made a 

safety complaint. I credit the testimony of Mr. English for a number of reasons. As noted above, 

Mayberry did not include this allegation or any assertion that he had made a safety complaint to 

MSHA in his discrimination complaint that he filed with MSHA on June 4, 2002. Although 

Mayberry testified that he raised this issue with the MSHA investigator, neither Cooper nor 

English knew anything about it. Indeed, Cooper credibly testified that he did not become aware 

that Mayberry was predicating this discrimination case on a prior safety complaint to MSHA 

until he discussed settlement with Mayberry after he received the preheating order issued in this 

proceeding. I did not become aware of this claim until the hearing because it was not included in 

any of Mayberry' s filings. · 

* Mayberry argues that when he asked to have his "two-weeks notice" revoked he wanted 

to continue working at the mine as a Rocky Mountain contract employee or as an Oxbow employee. 

Since his work as a contract employee was by the hour for time worked, he could not have returned 

as a Rocky Mountain employee as a result of his injury. As discussed above, he was not given a 

medical release to return to work until late March 2002. Oxbow may not have had an underground 

position available at that time. Nevertheless, my holding in this case would also apply if the adverse 

action was Oxbow's refusal to take him back as a temporary Rocky Mountain contract employee. 

141 
English testified that he has worked for Oxbow for eleven years. He denied that he had 

ever discussed an MSHA safety complaint with Mayberry. It is highly unlikely that English 

would have approached Mayberry about an MSHA safety complaint the morning of November 8 

because Mayberry was leaving the mine as a result of an injury. Mayberry was a contract 

employee from Rocky Mountain, not a permanent Oxbow employee, who would not be working 

at the Sanborn Creek Mine for at least a few weeks, if ever again, because he had been injured. 

Mayberry was on crutches for a considerable length of time and was paid for hours that he 

actually worked. There would have been no reason for English to raise this issue at that time. I 

observed Mr. English's demeanor at the hearing and he impressed me as someone who chooses 

his words quite carefully. In addition, as the assistant safety manager, he knew that such 

statements would set the company up for a discrimination suit if any adverse action were taken 

against Mayberry. English's testimony at the hearing, including his description of MSHArequired safety training, demonstrates that he has a rather sophisticated understanding of the 

requirements of the Mine Act including the anti-discrimination provisions of section 105(c). I · 

find that English did not confront Mayberry on the morning of November 8 about Mayberry' s 

call to MSHA. I also credit English's testimony that he did not know about Mayberry's call to 

MSHA. 

I credit the testimony of Cooper that he did not know that Mayberry had called MSHA in 

October 2001 until Mayberry told him about it after their settlement efforts failed a few months 

prior to the hearing. Finally, I credit the testimony of Litwiller that he did not know about 

Mayberry's safety complaint when he discussed Mayberry's employment status with Cooper. 

In determining whether a mine operator's adverse action is motivated by the miner's 

protected activity, the judge must bear in mind that "direct evidence of motivation is rarely 

encountered; more typically, the only available evidence is indirect." Secretary of La.boron 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev'd on 

other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the 

discrimination can be proven only by the use of circumstantial evidence." Id. (citation omitted). 

In Chacon, the Commission listed some of the more common circumstantial indicia of 

discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus toward the 

protected activity; (3) coincidence in time between the protected activity and the adverse action; 

and (4) disparate treatment of the complainant. See also Hicks v. Cobra Mining, Inc., 13 

FMSHRC 523, 530 (April 1991). 

The alleged adverse action in this case is Oxbow's failure to hire him as a permanent 

Oxbow employee in November 2001. I find that Mayberry did not establish that Oxbow's failure 

to take him back was motivated in any part by protected activity, taking into consideration 

circumstantial evidence of discriminatory intent. Considering the factors set forth in Chacon, for 

example, I find that Oxbow management did not have knowledge of the protected activity and 

did not display any hostility or animus toward the protected activity. Mayberry worked at the 

Sanborn Creek Mine for Rundle Construction from April 2002 through October 2002. In 

addition, there has been no showing that Mayberry was treated differently from other Rocky 

142 
Mountain employees who gave notice that they were leaving. I find that Oxbow's failure to 

"revoke" Mayberry's notice that he was leaving his job with Rocky Mountain and its failure to 

hire Mayberry as a permanent employee were not motivated in any part by Mayberry's protected 

activity. 

ill. ORDER 

For the reasons set forth above, the discrimination complaint fiJed by Casey J. Mayberry 

against Oxbow Mining, LLC, under section 105(c) of the Mine Act is DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Mr. Casey J. Mayberry, P.O. Box 863, Hotchkiss, CO 81419-0863 (Certified Mail) 

James T. Cooper, Vice President, Oxbow Mining, P.O. Box 535, Somerset, CO 81434-0535 

(Certified Mail) 

RWM 

143 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001-2021 

March 21, 2003 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMJNISTRATION, 

DISCRIMJNATION PROCEEDING 

on behalf of ANDREW J. GARCIA, 

Complainant 

DOCKET NO. WEST 2001-14-DM 

RMMD 00-12 

v. 

COLORADO LAV A, INC., 

Respondent. 

Antonito Plant 

Mine ID 05-04232 

DECISION ON REMAND 

Appearances: Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for the Complainant; Mark Nelson, Esq., Harris, Karstaedt, 

Jamison & Powers, Englewood, Colorado, for the Respondent. 

Before: Judge Weisberger 

INTRODUCTION 

This case is before me based upon a decision by the Commission, 24 FMSHRC 350 

(2002). vacating and remanding for further proceedings, my initial decision, which had granted 

Colorado Lava, Inc.'s motion to dismiss a discrimination complaint filed by the Secretary of 

Labor on behalf of Andrew Garcia. 

I. Factual and Procedural Background as Found by the Commission. 

The Commission, 24 FMSHRC supra, at 351 - 353, set forth its findings relating to the 

facts in this case as follows: 

The complainant, Andrew Garcia, worked as a front-end loader 

operator at Mountain West Colorado Aggregates ("MWCA") from 

January to June 1997. 23 FMSHRC at 213. He then worked as a 

truck driver in MWCA's truck division from June 1997 to January 

2000, and subsequently as a front-end loader operator at the 

railroad shipping yard in MWCA's Antonito bagging facility from 

January to June 2000. Id.; Tr. 21. Robert Duran was also 

employed a loader operator in MWCA' s railroad yard. 23 

FMSHRC at 213. 

144 
In October 1999, Garcia tagged out a loader because the 

parking brake did not work. Id. at 213-14. The following day, 

Garcia told David Mccarroll, the plant manger and Garcia's 

supervisor, that the parking brake on the loader was not working. 

Id. at 214. Mccarroll responded that the loader did not need a 

parking brake, and ordered Garcia to continue using the loader. Id. 

Garcia complied and later complained to MSHA. Id. at 214, 218. 

As a result, MSHA came to the Antonito site to inspect the loader, 

issued a citation to MWCA, and initiated an investigation to 

Mccarroll under section llO(c) of the Mine Act, 30 U.S.C. § 

820(c). Id. at 214. 

Shortly after the incident, McCarroll learned of Garcia's 

complaint to MSHA, and when he was alone with Garcia, asked 

him "in a high toned voice" about the complaint. Id. Garcia 

denied filing the complaint. Tr. 34. According to Garcia, 

Mccarroll responded, "You know all about it," and "Bull. It will 

all come out in the wash." Tr. 255-56. Garcia also testified that on 

another occasion in March 2000, when he was unable to load some 

marble chips because they were frozen, Mccarroll swore at him in 

a loud voice. 23 FMSHRC at 214. McCarroll testified that the was 

upset with Garcia for complaining to MSHA, acknowledged that 

he considered Garcia's complaint an example of his "trouble 

mak[ing]," and stopped speaking to Garcia socially. 23 FMSHRC 

at 214, 217; Tr. 224-27. 

Sometime in the spring of 2000, Ronald Bjustrom, the 

eighty-percent owner of Colorado Lava, became interested in 

purchasing MWCA's Antonito facility. 20 FMSHRC at 215. 

Bjustrom visited the facility on four occasions prior to Colorado 

Lava's purchase on June 5, 2000. Id. During this time, Bjustrom 

decided to eliminate several positions, and asked Mccarroll his 

opinion as to what jobs could be eliminated. Id. Mccarroll 

suggested a railroad yard loader operator position and a mechanic 

position. Id. Bjustrom also asked McCarroll which MWCA 

employees were weak. Id. McCarroll told Bjustrom that Garcia 

and four other employees were weak, 1 and that Garcia caused 

trouble, tried to stir up trouble between employees, was a poor 

operator, abused equipment, and had filed union grievances. Id. 

Garcia was the only employee about whom Mccarroll said only 

negative things. Id. Bjustrom testified that his conversations with 

1

However, loader operator Duran testified that he supervised Garcia at the rail yard, and found 

him to be a satisfactory worker. Tr. 291-92. 

145 
Mccarroll had no bearing on which MWCA employees would be 

rehired by Colorado Lava. Id. 

In late May or early June 2000, prior to the interviews on 

June 5, Bjustrom told Mccarroll that he would be retained as the 

plant manager. Tr. 100-01. Also prior to June 5, Bjustrom 

retained Terry Kissner, who was not an employee of Colorado 

Lava, to do the hiring. 23 FMSHRC at 215-16. Kissner had done 

hiring for Bjustrom in the past.2 Id. at 215 · 

On June 5, Kissner interviewed the MWCA employees 

individually according to Bjustrom's instructions, which included 

asking the applicants the same questions from the booklet, asking 

the mechanics additional questions, including whether they would 

accept another position, and eli~inating one railroad year loader 

operator position and one mechanic position. Id. at 215-16; Tr. 

174. Kissner testified that, with respect to Garcia, he did not look 

at his personnel file, letters of recommendation, past safety record, 

or production levels, and that the interviews were a formality. 23 

FMSHRC at 216. He also testified: that he did not review the 

personnel files of any of the employees he interviewed; that before 

the day of the interviews, he had never visited the Antonito facility; 

that he had no personal knowledge of the MWCA employees; and 

that while he spoke with Mccarroll "as few as three times," he did 

not meet McCarro)] until the day of the interviews and never 

discussed the MWCA employees with him. Id. at 215-16 Tr. 159, 

178. Bjustrom testified that Kissner made the final decision about 

which employees to rehire, and that he (Bjustrom) did not 

participate in that decision, although he retained the ultimate 

authority to hire. 23 FMSHRC at 215, 220. 

Garcia testified that on June 1, 2000, he was told of the sale 

of MWCA' s Antonito facility to Colorado Lava and that all 

employees would be rehired, but was not informed that any jobs 

would be eliminated. Tr. 39-40. Garcia also testified that on the 

morning of June 5, Bjustrom gave the employees application 

packets, and scheduled each employee for an interview. Tr. 40-41. 

At the interview, Kissner did not inform Garcia that one loader 

operator position at the rail yard was being eliminated. Tr. 42, 177. 

On June 6, 2000, Colorado Lava purchased MWCA and 

2

Bjustrom received from his banker a booklet of interview questions, which he have to Kissner, 

to use during the interviewing of the MWCA employees. 23 FMSHRC at 215. 

146 
rehired all of the MWCA employees except Garcia, and Ernie 

Lucero, a mechanic. 23 FMSHRC at 216 & N.2. After Garcia 

learned that he was not going to be rehired, he secured a job with 

MWCA which is farther from his home, has a lower pay scale, and 

fewer incentives than his former position at the Antonito railroad 

yard.facility. Id. at 215. Bjustrom testified that he first learned 

about Garcia's complaint to MSHA about a week or two after the 

decision was made not to hire him. Tr. 143-44. 

II. The Commission's Decision 

The Commission found that substantial evidence supported the initial decision that Garcia 

had engaged in protected activity when he complained to Mccarroll and MSHA that the parking 

brake on the front-end loader was operational, and also that the operator, Colorado Lava, took 

adverse action against Garcia when it declined to hire him. Thus, the threshold issue before the 

Commission, and on remand, is whether the Secretary established its prima facie case that the 

adverse action taken by Colorado Lava was motivated in any part by Garcia's protected activity. 

The Commission noted that in a prior decision, Secretary on behalf of Chacon v. Phelps Dodge 

QQ!Jl..., 3 FMSHRC 2508, 2510, (Nov 1981), rev'd on other grounds, 709 F. 2nd 86 (D.C. Cir. 

1983), supra, it had identified several indicia of discriminatory intent" ... including: (1) 

knowledge of the protected activity; (2) hostility or animus toward protected activity; (3) 

coincidence in time between the protected activity and the adverse action; and (4) disparate 

treatment of the complainant." 24 FMSHRC at 354. 

The Commission held that the record evidence of disparate treatment toward Garcia by 

Colorado Lava was not considered fully. The Commission, id. , restated the finding in Bradley v. 

Belva Coal Co. 4 FMSHRC 982, 992 (June. 1982), that circumstantial evidence of discriminatory 

motivation and reasonable inferences drawn therefrom may be used to sustain a prima facie case. 

The Commission, 24 FMSHRC, supra, at 354 -355, noted that the initial decision pointed to 

evidence of indicia of disparate treatment e.g.: (1) Doran was chosen over Garcia for the loader 

operator position because Doran had more experience than Garcia, on the other hand Vondrak 

who had less experience than Lucero was hired over Lucero as a mechanic; (2) that Lucero, the 

only other employee not rehired was offered another position at Colorado Lava, but Garcia was 

not; and (3) when considering which positions to eliminate Bjustrom only evaluated the loader 

operator and mechanic positions, and not other positions at the site. In addition, the Commission 

noted other evidence of record that "could" support a finding of disparate treatment (24 

FMSHRC at 355). The Commission referred to findings in the initial decision that Kissner 

wanted to hire the best qualified employees for the loader operator and the mechanic positions, 

and testified that he reviewed the applications for these two positions prior to making his 

decision. It was found in the initial decision that Kissner stated that he looked at work history 

and tenure when he decided to hire Doran other Garcia for the loader operator position but 

admitted that he did not review Garcia's personnel file, letters of recommendation, safety record, 

or production level when considering whom to hire. 

147 
In addition, the Commission found that the record indicates that on approximately June 7, 

2000, after Colorado Lava assumed ownership of the subject operation, Mccarroll hired Jeremy 

Gallegos, a former MWCA employee who was not working for the company at the time of its 

purchase by Colorado Lava, to fill a bagger position that had been vacated prior to Colorado 

Lava's purchase on June 5. The Commission noted that Gallegos apparently had experience as a 

bagger. The Commission also noted that Garcia, while still employed at the Antonito facility 

was being trained as a bagger and had filled in as a bagger three or four times prior to June, but 

was not considered for the vacant position. The Commission cited as fact that although Gallegos 

had experience as a bagger, Garcia was also experienced as a bagger and more specifically with 

operations at the Antonito facility. The Commission concluded that "despite Garcia's 

availability when the bagger position was open, he was not considered for the position." (23 

FMSHRC at 355.) Additionally, the Commission noted that in spite of McCarroll's 

recommendation that Bjustrom retain only one rail yard employee after assuming operations at 

the Antonito facility Colorado Lava continued to use two employees at the rail yard; that 

Mccarroll testified that after June 5 a second employee of the Antoni to facility worked at the rail 

site with either Doran or himself, including George Ruybal, Brian Kent, and Joe Padiolo, who 

were former MWCA employees rehired by Colorado Lava; that McCarroll testified that prior to 

June 5 Ruybal and Kent did not have experience operating the front-end loader and were being 

trained. The Commission noted that Doran confirmed Mccarroll' s testimony that two employees 

continued to work at the rail yard site after June 6. 

The Commission, 24 FMSHRC, supra, at 555 directed that, consistent with Chacon, 

supra, ... "the Judge should consider all the evidence tending to show improper motivation, 

including that of disparate treatment of the miner." In a footnote, 24 FMSHRC at 356, n. 6, the 

Commission indicated that the initial finding that Kissner lacked knowledge regarding Garcia's 

protected activity and animus towards him is not dispositive of the prima facie case issue. The 

Commission also stated that" ... before the Judge again reaches a conclusion regarding the 

strength of this rebuttal evidence, we would expect him to consider the Secretary's arguments for 

imputing McCarroll's knowledge of and animus toward Garcia's safety complaints to Bjustrom 

or Kissner." Id. 

III. DISCUSSION3 

The Commission, 24 FMSHRC supra. at 355, held that in the initial decision the analysis 

of motivation was incomplete under Chacon. supra, and that, "consistent with Chacon. supra. 

the Judge should consider all the evidence tending to show improper motivation, including that 

of disparate treatment of the miner". In compliance with this holding and directive, cognizance 

is taken of the following indicia of discriminatory intent which had been initially listed in 

Chacon. supra. as follows: (1) knowledge of the protected activity; (2) hostility or animus toward 

protected activity; (3) coincidence in time between the protected activity and the adverse activity; 

3

Subsequent to the hearing the Secretary proffered Sec. Ex. 5 along with a motion in support of 

its admission. This proffer was not objected to by Colorado Lava. Accordingly the record is re-opened 

for the limited purpose of admitting in evidence Sec. Ex. 5. 

148 
and ( 4) disparate treatment of the complainant. 

A. Knowledge of the Protected Activity, and Hostility or Animus Toward 

Protected Activities 

Garcia engaged in the following protected activities while an employee of MWCA prior 

to the time it was purchased by Colorado Lava, a totally independent entity: (1) Garcia informed 

his supervisor, Earl Gonzales, that a loader was tagged out because the brake did not work, and 

(2) Garcia told Mccarroll, another supervisor at MWCA, that the loader had been tagged out 

because of problems with the parking brake. These two individuals were the only agents of 

MWCA who had actual knowledge of Garcia's protected activities. There is no direct evidence 

that any of Colorado Lava's agents had actual knowledge of these specific activities. The only 

individual who had expressed any animus towards Garcia was Mccarroll. These expressions of 

animus occurred while both were employees of MWCA, prior to its purchase by Colorado Lava. 

Bjustrom, who has an 80 percent ownership interest in Colorado Lava, had the ultimate authority 

to hire former employees from MWCA. However, he delegated that decision to Terry Kissner 

who subsequently interviewed employees of UMW A, and did not select Garcia. I observed 

Bjustrom's demeanor while testifying and found him to be a credible witness. Accordingly, I 

accept his testimony that, prior to the time Colorado purchased MWCA, Mccarroll had told him 

that Garcia was a weak employee, not a good operator, and had filed grievances, but this 

information did not have any bearing on the decision on June 5 regarding which employees of 

MWCA would be hired by Colorado Lava. Further, based on observations of Bjustrom's 

demeanor, I find his testimony credible that he not did take any part in the hiring decision, and 

that it was Kissner who made the final decision in that regard, and that he had delegated this task 

to Kissner, as the latter had done the hiring for him (Bjustrom), for eight years. 

I also carefully observed the demeanor of Kissner, and found him to be a credible 

witness. I therefore accept his testimony that he did not have any knowledge of the applicants 

from MWCA before he interviewed them on June 5; and that the only time he had talked to 

Mccarroll prior to June 5 had to do with ordering supplies. I also accept his testimony that he 

did not consult with McCarroll before the interviews regarding the interviewees; did not consult 

with Mccarroll after the interviews; and that McCarroll not provide him with any information 

regarding the interviewees. I therefore find, that Kissner alone took the adverse action in not 

hiring Garcia on June 5, but that he did not have knowledge of Garcia's prior protected activities. 

Neither he nor Bjustrom manifested any animus toward Garcia prior to June 5.4 

4

In a footnote, the Commission stated that before a conclusion is reached regarding the strength 

of rebuttal evidence" ... we would expect him to consider the Secretary's arguments for imputing 

McCarroll's knowledge of and animus towards Garcia's safety complaints to Bjustrom or Kissner." 

(Emphasis added.) (24 FMSHRC supra, at 356 n.6) 

The graveman of the Secretary's argument in its post remand brief, on the issue of imputation of 

McCarroll's animus and knowledge of protected activities, relates to their imputation to the new 

corporate entity Colorado Lava on the basis of agency. I find this argument to be without merit as it is 

beyond the scope of the remand. Also, most importantly, I note that on the date of the adverse action 

149 
B. Coincidence in Time Between the Protected Activity and the Adverse 

Action 

The protected activities engaged in by Garcia occurred in October 1999. It was also on or 

about that time that Mccarroll had expressed animus towards Garcia relating to these protected 

activities. Mccarroll indicated that he continued to dislike Garcia. However, it is significant to 

note that no adverse action was taken by MWCA against Garcia. Indeed, the adverse action that 

was taken subsequently by Colorado Lava on June 6 was more that seven months subsequent to 

the dates Garcia had engaged in the protected activities. I thus find that the Secretary has not 

established a sufficiently close coincidence in time between the protected activity and the adverse 

action to support an inference of improper motivation. 

C. Disparate Treatment of the Complainant. 

As discussed above, based upon the findings of the Commission, which have become the 

law of the case, I am constrained to find that it may be inferred that Garcia was the subject of 

disparate treatment. 

D. Conclusions 

The posture of this case before the Commission was whether Colorado Lava's motion to 

dismiss, made at the conclusion of Complainant's case-in-chief should have been granted. The 

quantum of evidence sufficient to establish a prima facie case at this point in a trial, is 

"[e]vidence which, standing alone and unexplained, would maintain the proposition and warrant 

the conclusion to support which it is introduced. An inference ... until proof can be obtained or 

produced to overcome the inference." Black's Law Dictionary, (6th ed., 1990), at 1190. As set 

forth by the Sixth Circuit, in order to establish a causal link, a plaintiff is required to proffer 

evidence sufficient to raise the inference that her protected activity was the likely reason for the 

adverse action. EEOC v. Avery Dennison Corp. 104 F 3d 858, 861 (6th Cir. 1997), (quoting 

Zanders v. National R.R. Passenger Corp., 898 F 2d 1127, 1135 (6th Cir. 1990), (quoting Cohen 

taken by Kissner, i.e. June 6, McCarroll had not yet been hired by Colorado Lava, and hence there was 

not any principal agent relationship at that time. Also, I reject the Secretary's arguments that, in essence, 

Bjustrom's delegation of the authority to hire to Kissner, and the manner in which Kissner conducted the 

interviews raised inferences of improper motivation, and Bjustrom's and Kissner's knowledge of 

Garcia's protected activities, and McCarroll's influence on the decisional process based on his animus 

towards Garcia. I find this line of.reasoning to be too speculative, without foundation in the record, and 

outweighed by the direct testimony of Kissner and Bjustrom, whom, based on their demeanor, I find to 

be most credible witnesses. 

150 
v. Fred Meyer, Inc., 686 F. 2d 793, 796, (9th Cir. 1982)).5 

However, in the case at bar, subsequent to the Commission's decision, Colorado Lava 

elected to rest on the basis of testimony elicited from the Secretary's witnesses, Bjustrom, 

Kissner, and Mccarroll. Accordingly, at this stage of the proceedings, since Respondent has 

adduced rebuttal evidence, in order to prevail the Secretary must " .... overcome the additional 

obstacle of [Respondent's] rebuttal and convincingly demonstrate the existence of 

discrimination. At that stage, he not only must present facts and evidence allowing inferences to 

be drawn in his favor, but also must present a case that allows those inferences to be of 

significant force as to overcome the [Respondent's] rebuttal or prove the rebuttal pretext" Id. In 

the same fashion, it is established Commission case law that the Secretary has the ultimate 

burden of proof of establishing discrimination under the Act. Secretary of behalf of Robinette v. 

United Coal Co., 3 FMSHRC 803, 817 (1981), Secretary on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds, sub nom. Consolidation 

Coal Co. v. Marshall, 663 F 2d 1211 (3rd Cir. 1981). Hence, in order to prevail herein, the 

Secretary must establish, by a preponderance of the evidence, that the adverse action was 

motivated in any part by the protected activities.

6 Id. 

In analyzing the indicia of discriminatory intent as set forth in Chacon. supra. it might be 

inferred that Garcia did suffer some degree of disparate treatment. However, I find that an 

inference of discriminatory intent, based on disparate treatment, to be diluted to a high degree by 

the lack of knowledge of the protected activities and lack of hostility or animus towards protected 

activity by Colorado Lava. In reaching this conclusion I accord more weight to the direct 

testimony of Bjustrom and Kissner, having found their testimony credible based upon their 

demeanor, rather than inferences to be drawn regarding disparate treatment. I also note the lack 

of significant coincidence in time between the protected activities and the adverse action. For 

these reasons I find that the Secretary has failed to establish, by a preponderance of the evidence 

(see Robinette, supra. Pasula, supra), that the adverse taken by Colorado Lava was motivated in 

any part by Garcia's protected activities. 

5 Avery Dennison, supra, involved alleged discrimination under Title VII and 42 U.S.C. § 1981. 

Its analysis of the burden required to establish a causal nexus between protected activity and adverse 

action is analogous to discrimination under Section 105 of the Mine Act. 

6

Subsequent to the Commission's decision 24 FMSHRC, supra, Garcia filed a statement in which 

he stated that he does not intend to present further testimony" ... for the purpose of making out [his] 

prima facie case of discrimination .... " The Secretary filed a statement that if it be found on remand that 

the Secretary did not establish a prima facie case then it may not call witnesses to rebut the Judges' 

finding. The Secretary reserved the right to call rebuttal or sur-rebuttal witnesses if the Judge, 

Commission, or reviewing court finds that the Secretary and Garcia made out a prima facie case. 

151 
For all the above reasons, I find that the Secretary has failed to establish that Garcia was 

discriminated against by Colorado Lava in violation of Section 105( c) of the Act, and that 

accordingly this case shall be DISMISSED. 

4e4--

Administrative Law Judge 

Distribution (Certified Mail) 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22"d Floor, West, Arlington, VA 22209-2247 

Mark W. Nelson, Esq., Harris, Karstaedt, Jamison & Powers, PC, 282 Inverness Drive South, 

Suite 400, Englewood, CO 80112-5816 

/sc 

152 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ARNOLD J. JISTEL, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001 

Complainant 

March 27, 2003 

DISCRIMINATION PROCEEDING 

Docket No. CENT 2002-150-DM 

SCMD02-05 

TRINITY MATERIALS, INC., 

Respondent 

Trinity Materials 

Mine ID 41-01163 

Appearances: 

Before: 

DECISION 

Jason M. Willett, Esq., Hinds & Willett, Waxahachie, Texas, 

for Complainant, 

David M. Curtis, Esq., Gardere Wynne Sewell LLP, Dallas, Texas, 

for Respondent. 

Judge Zielinski 

This case is before me on a complaint of discrimination filed by Arnold Jistel pursuant to 

section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. 

§ 815(c)(3). 1 Jistel alleges that Trinity Materials (''Trinity") discriminated against him by 

terminating his employment on October 25, 2001, as a result of his complaints about safety. A 

hearing was held in Dallas, Texas. Following receipt of the hearing transcript, the parties 

submitted briefs. For the reasons set forth below, I find that Respondent did not discriminate 

against Jistel and dismiss the complaint. 

Findings of Fact 

Trinity mines and processes sand and gravel at numerous locations in Texas and 

Louisiana. It owns a plant at Seagoville, Texas, at which it processed sand and gravel mined 

from adjoining land leased from the Southland Land and Cattle Company. Material had been 

removed from approximately ten different pit areas on the property since 1980. By late 2001, the 

marketable sand and gravel at other locations had been exhausted, and only one small pit was 

being worked. 

Pursuant to section 105( c )(2) of the Act, the Secretary of Labor must investigate 

complaints of discrimination filed by miners and file a complaint with the Commission if she 

determines that the Act has been violated. Section 105(c)(3) provides that, if the Secretary 

determines that the Act has not been violated, the miner may file an action before the 

Commission on his own behalf. 30 U.S.C. § 815(c)(2) and (3). 

153 
Jistel became employed at Trinity's Seagoville facility on December 12, 1997. In 2001, 

he held the position of plant operator, and also operated equipment when other employees did not 

report for work. He earned $10.25 an hour and worked an average of 28 hours of overtime per 

week. Jistel was responsible for general operation of the plant and conducted daily workplace 

examinations of the facility. His immediate supervisor was Tommy Weatherly, the plant 

manager. Billy Rogers, was also a plant operator and had been the manager prior to Weatherly. 

Jistel had known Rogers, who had been his brother-in-law, for twenty years. He continued to 

view Rogers as a supervisor and was good friends with him. Tr. 216. 

When Jistel conducted his daily inspections of the plant, he carried note paper and jotted 

down items of significance. He used his notes to complete a "Daily Work Place Inspection 

Checklist." The form had a series of boxes for each area of the plant for each day of the week. 

In each box he entered either a''./" indicating that conditions were "OK," or an "X," indicating a 

"Discrepancy," which he described in a section of the form entitled "Remarks." A copy of the 

form was transmitted by facsimile each day to Trinity's main office at Ferris, Texas. 

From January to March 2001, Jistel placed "./'s" in all boxes on the forms, indicating 

that the areas were "O.K." However, each sheet bore notations, "walkway at doghouse needs 

welded," and "A.J. is working on guards and walkway." Beginning on March 26, 2001, 

however, "X's" were placed in boxes for "Walkways & Handrails" and "Guards." The remarks 

sections of the forms generally included comments that the walkway at the doghouse needed 

welding, the walkway on the rock belt needed to be replaced, the handrail at the log washer 

needed welding, an electrical box needed to be replaced, and a lock was needed on another box. 

Ex. C-48, R-G-6.

2 

On May 30 and 31, 2001, MSHA conducted a regular inspection of the pit area of the 

Seagoville facility. Eight citations were written for various alleged violations. On June 4 and 5, 

2001 , MSHA returned to the facility to inspect the plant and issued eight additional citations. Of 

particular note was Citation No. 6207305, alleging a violation of 30 C.F.R. § 56.11001, which 

requires that a "safe means of access be provided and maintained to all working places." The 

violation was based upon the poor structural condition of a conveyor tail pulley and attached 

elevated walkway that was used to service the conveyor. It was alleged to have been attributable 

to the "High" negligence of the operator, and was issued under section 104(d)(l) of the Act as an 

unwarrantable failure to comply with a mandatory standard. The basis of the unwarrantable 

failure allegation was that the condition had been noted by Jistel in his work place examination 

reports for the prior eight weeks and nothing had been done about it. Ex. C-47, R-G-4. In order 

to abate the conditions noted in the citations, particularly the structural problem, the plant was 

shut down for a few days, after which the facility was run under normal conditions. 

2 Complainant's exhibits are referred to with the prefix "C," and are designated by a 

number. Respondent's exhibits are referred to with the prefix "R," and are generally designated 

with both a letter and a number. 

154 
Jistel claimed that after the June citations were issued, Rogers and Weatherly "kept 

picking on" him and "harassing" him. Tr. 151. He claimed that about a month after the citation 

was written, Rogers hollered at him and told him to stop writing safety problems on the daily 

reports because Carl Campbell, the general manager, was mad about it and might fire him. 

Tr. 155, 206-07. Rogers denied the allegation. Tr. 135. Jistel testified that his shift was changed 

from day to evening and that Rogers told him that the purpose was to keep him from talking to 

MSHA about safety violations. Tr. 166-67. Weatherly testified that he created an overlapping 

second shift immediately after the shut down because Trinity needed to make up production. He 

stated that he asked Jistel if he would take the second shift and that he agreed. Tr. 131. Jistel did 

not directly contradict that testimony. Rogers confirmed that Trinity began a second shift 

because they had gotten behind on production. Demand was typically high at that time of year 

and they had operated a second shift at some point every summer. Tr. 99. 

Jistel described other jobs he was directed to do by Weatherly and Rogers. About three to 

four weeks after the citation was written, he was assigned to disassemble an old flatbed trailer 

with a cutting torch, and was directed to remove weeds from around the plant. Tr. 153-56. The 

cutting and weeding tasks lasted about one day each. Tr. 214. He was also assigned to drive a 

truck down to the pit to change a cable on a dragline whenever the cable broke. Tr. 215. It is not 

clear whether this was one of his ongoing responsibilities. 

Jistel complained about "surveillance" activities, stating that: "[Weatherly] was just 

standing around watching over me, taking pictures and stuff like that ... eyeballing me." 

Tr. 157. He testified that Weatherly and Steve Key, the overall area manager, took pictures of 

him when he worked at night, and that they would hide the camera when he looked at them. He 

claimed that this type of activity, by Key and Errol Viator, who replaced Weatherly as plant 

manager in September 2001,3 occurred every night after the citations were written until he was 

laid-off on October 25, 2001. Tr. 158. At one point, they allegedly took pictures of him when he 

used the restroom and placed a video camera in the control room. Jistel never inquired about the 

picture taking. Tr. 158. 

MSHA initiated a special investigation pursuant to section 110(1) of the Act to determine 

whether individual managers should be charged in their personal capacities, with respect to the 

safe access violation cited in June. On September 12, 2001, Jistel signed a written statement of 

an interview that had been conducted by Michael Franklin, an MSHA special investigator. 

Ex. R-D-2. Jistel testified that he saw Rogers and Weatherly bring in a video camera that was 

placed in the control room, where the statement had been given. Tr. 164. In his statement, Jistel 

described a conveyor that had fallen over and a concrete belt line that had broken in seven places. 

Following the statement, Trinity allegedly re-erected the fallen conveyor and repaired the 

3 Weatherly was transferred to a smaller plant around the beginning of September 

2001, in part, because of his failure to address the problems noted in the daily inspection reports. 

Viator was manager of another nearby plant and was also given responsibility for the Seagoville 

plant for the few months that it was expected to be operational. 

155 
concrete belt line. Those actions convinced Jistel that Trinity had used the video camera to 

record his statement to Franklin, because he believed that the only place Trinity's managers could 

have gotten that information was from the statement. Tr. 165-66. 

Jistel was inconsistent in relating his knowledge about the impending plant closure. He 

stated that he heard from Trinity's quality control personnel that the plant was about to close 

about two days prior to being laid-off on October 25, 2001. Tr. 176. However, he also stated 

that he was told, before the citations were written, i.e., prior to May 30, 2002, that Trinity did not 

want to spend any money on the plant because it was going to shut down. Tr. 200-01. He was 

looking for another job because of the impending lay-off, and had talked to a nearby sand and 

gravel company about a job, but they never got back to him. Tr. 203. 

On October 13, 2001, Jistel became involved in a physical altercation with Emillio 

Padilla, a loader operator. Tr. 209; ex. R-D-3, R-D-7. Trinity's Employee Disciplinary Process 

cited fighting as a major infraction "which should result in discharge for a first offense." Ex. C2, R-D-7. Neither Jistel nor Padilla were disciplined for the altercation. Campbell explained that 

he decided not to discipline the men because of the impending shut down of the Seagoville 

facility. Tr. 261. 

The resources in the last workable pit were finally depleted in late October 2001. 

Trinity's managers met to determine what to do with the men and equipment. The pit operation 

was shut down because there was no more sand and gravel to remove from it. The plant was 

kept in operation on a small scale to process the "surge pile," material that had been stored near 

the plant so that it could be processed if weather conditions prevented the transport of material 

from the pit. Trinity also intended to process material that had been deposited around the plant to 

create a surface for the operation of trucks, loaders and other equipment. 

Campbell met with Key, Viator, and Arturo Munoz, Trinity's human resources and safety 

manager, to determine what positions they needed to keep filled, in order to operate the plant for 

the limited purpose of processing the surge pile and other material. They reviewed the personnel 

files of the men then working and, for each such position, retained the individual with the most 

seniority with Trinity and the most experience at his position. Of the two operators, Rogers had 

more seniority and experience than Jistel. Since only one plant operator was needed, Jistel was 

laid-off. A dragline operator, trackhoe operator, and water truck driver were laid-off because 

they worked at the pit and it was closed. William Sanders, an oiler with twenty-nine years of 

seniority, was also laid-off. He took a vacation and returned to Trinity asking for any available 

work, and was hired for a few days to take down a fence on the leased property. A recently hired 

laborer was also let go. Emilio Padilla, a loader operator, was retained because a loader was 

needed to process the surge pile and other material. 

On Thursday, October 25, 2001, Jistel and five other employees were notified that they 

were being laid-off, effective that day. Ex. C-1. Jistel does not believe that the other employees 

laid-off were discriminated against. Tr. 221-23. The limited operations at the plant continued 

156 
for a few months. The Seagoville facility was closed permanently in January 2002. Jistel 

registered for unemployment compensation, which he received for approximately thirteen 

months. He lives on a farm with his mother and, with assistance from other family members, 

operates the farm. He has not been re-employed, despite numerous attempts to find work. 

Jistel was involved in some controversy following his departure. On Saturday, 

October 27, 2001, he was observed in the plant's office. The plant was not operating and the 

only other employee on site was performing other tasks. The following Monday, Trinity noted 

that many of the daily inspection reports had been altered. Tr. 93-94. Many ".l's" had been 

changed to "X's" and numerous problems had been added to the remarks section. Of particular 

significance was the report for August 30, 2001. Three versions of that report were produced at 

the hearing. Ex. R-C-9, C-10, C-11. The third version lists twelve electrical, guarding and 

structural problems that were not included on the original form. MSHA returned to the facility 

that Monday and conducted a further inspection, specifically requesting to examine the daily 

inspection report for August 30, 2001. Jistel was suspected of changing the reports, although the 

newly added material was not in his handwriting. Jistel testified that he typically made additions 

to reports as the day went by, but agreed that there should have been only one version of the 

report. Tr. 230-33. Trinity reported the alterations to MSHA and was told that it was a matter 

that should be handled as a criminal investigation, which Trinity chose not to pursue. 

Jistel also testified that the surveillance harassment continued after he was laid-off. He 

stated that different cars with people operating video cameras drove by his house and he 

speculated that Trinity may have hired a private investigator to monitor his searching for work. 

Tr. 217-18. He stated that he told MSHA special investigator Ron Mesa about it. However, 

there is no mention of that claimed activity in the statement he gave to Mesa on December 5, 

2001. Ex. R-D-3. 

On November 29, 2001, Jistel filed a complaint of discrimination with MSHA, alleging 

that he had been laid-off because he participated in the MSHA inspection and in the subsequent 

investigation to determine whether charges would be filed against individual managers at Trinity. 

Ex. R-C-5. He identified Campbell, Munoz, Key, Richard Forth, another area manager, Viator 

and Weatherly as persons responsible for the discriminatory action. By letter dated February 27, 

2002, MSHA advised that its investigation had been completed and that it had concluded, on 

behalf of the Secretary, that Jistel had not been discriminated against. Jistel then filed a 

complaint of discrimination with the Commission, pursuant to section 105(c)(3) of the Act. 

Conclusions of Law - Further Findings of Fact 

A complainant alleging discrimination under the Act typically establishes a prima facie 

case by presenting evidence sufficient to support a conclusion that he engaged in protected 

activity and suffered adverse action motivated in any part by that activity. See Driessen v. 

Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec'y of Labor on behalf of Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom. 

157 
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec'y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may 

rebut the primafacie case by showing either that no protected activity occurred or that the 

adverse action was in no way motivated by protected activity. See Robinette, 3 FMSHRC at 818, 

n. 20. If the operator cannot rebut the primafacie case in this manner, it nevertheless may 

defend affirmatively by proving that it was also motivated by the miner's unprotected activity 

and would have taken the adverse action for the unprotected activity alone. Id. at 817-18; 

Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 

642-43 (4th Cir. 1987) (applying Pasula-Robinette test). 

While the operator must bear the burden of persuasion on its affirmative defense, the 

ultimate burden of persuasion remains with the complainant. Pasula, 2 FMSHRC at 2800; 

Schulte v. Lizza, 6 FMSHRC 8, 16 (Jan. 1984). 

Prima F acie Case 

Jistel reported safety hazards on the daily inspection sheets and provided information to 

MSHA during its investigation of alleged violations of mandatory safety standards. A complaint 

made to an operator or its agent of "an alleged danger or safety or health violation" is specifically 

described as protected activity in section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l). I find that 

Jistel's activities were protected under the Act. Jistel clearly suffered adverse action. He was 

laid-off on October 25, 2001. 

The principle issue as to Jistel' s prima facie case is whether the adverse action was 

motivated in any part by his protected activity. In Sec'y on behalf of Baier v. Durango Gravel, 

21 FMSHRC 953, 957 (Sept. 1999), the Commission acknowledged the difficulty in establishing 

a motivational nexus between protected activity and the adverse action that is the subject of the 

complaint. 

"Direct evidence of [unlawful] motivation is rarely encountered; more typically, 

the only available evidence is indirect. ... 'Intent is subjective and in many cases 

the discrimination can be proven only by the use of circumstantial evidence."' 

[citing Chacon]. In Chacon, we listed some of the circumstantial indicia of 

discriminatory intent, including (1) knowledge of the protected activity; (2) 

hostility or animus towards the protected activity; and (3) coincidence in time 

between the protected activity and the adverse action. Id. We also have held that 

an "operator's knowledge of the miner's protected activity is probably the single 

most important aspect of a circumstantial case" and that "knowledge ... can be 

proved by circumstantial evidence and reasonable inferences." Id. 

As explained below, I find that Trinity made the decision to discharge Jistel solely as a 

consequence of economic pressures that required closing of the Seagoville plant. 

158 
Although there is a suggestion to the contrary, Jistel does not contest the fact that the 

Seagoville facility was shut down because of the exhaustion of sand and gravel reserves.4 

He contends that, but for his protected activity, he would not have been laid-off on October 25, 

2001, and would have eventually been transferred to another Trinity's facility. Tr. 281-83; 

Compl's. brief, part H. The problem with this theory is that Trinity's asserted reasons for the layoff are un-rebutted. Complainant points to no evidence challenging Trinity's contentions that 

only one plant operator was needed after the pit was closed, and that Rogers had more seniority 

than Jistel and was retained for that reason. Complainant offered no proof that Trinity's 

explanation of the reasons for and procedures followed with respect to the lay-offs were not 

accurate descriptions of bona-fide business practices. While Trinity operated other similar 

facilities, there is no evidence that a plant operator position was available at the time of his layoff.5 

Jistel's credibility is suspect in many areas. His concerns about "surveillance" activities, 

especially that pictures were taken of him every day for months, strikes me as incredible. His 

conclusion that Trinity used a video camera to record his statement to Franklin is also highly 

questionable. Jistel described attempts by Trinity to find out what MSHA had asked him and 

what he had said in his statement. He was asked to write a letter relating what he had told 

Franklin and he was called to a meeting and asked what he had told MSHA, actions that Trinity 

acknowledged. Tr. 169-73; ex. R-G-8. Jistel offered no explanation as to why Trinity would ask 

him what he said in his statement, if it already had a recording of it. Moreover, his belief that his 

statement was the only place Trinity could have gotten information regarding the fallen conveyor 

and the broken concrete belt is difficult to accept. Jistel' s statement contains one small 

paragraph about those problems, which appear to be descriptions of past events. The conveyor 

was said to have fallen over two months before the June inspections, i.e., about the beginning of 

April, 2001, and the report about the structure for the sand belt appears to refer to past repairs. 

Jistel, himself, had reported problems with the structure of conveyors in his daily inspection 

reports and claimed to have continued to do so, despite efforts by Trinity's managers to get him 

to stop. The fact that a conveyor had fallen more than five months before Jistel gave the 

statement could not possibly be information that only he knew. 

The shift change and other "harassment" claims are also unconvincing. Trinity advanced 

a bona-fide business reason for the shift change. I find that Jistel agreed to the shift change, as 

4 Jistel testified that he was told that Trinity was "re-digging" the material that was 

allegedly exhausted at Seagoville and processing it at another plant, Scurry-Rosser. Tr. 190. 

However, Campbell testified that Trinity has never had a plant at that location. Tr. 268. Trinity 

also established that no further material was removed from the Seagoville site. Tr. 295-96; 

ex. R-E. 

5 Jistel also claimed that he was qualified for other jobs, e.g., equipment operator. 

However, men laid-off at the same time had more seniority, and at least one was also qualified 

for such jobs. 

159 
Weatherly testified. The change created only overlapping shifts. Instead of working from 6:30 

a.m. to 6:30 p.m., Jistel worked from 9:30 a.m. to 9:30 p.m. Ex. R-D-3. Those work hours 

would not have kept him away from MSHA inspectors, which he claimed he was told was the 

reason for the change. The "other work" assignments were few in number and of very short 

duration. I find that none of the actions Jistel complained of were taken in retaliation for his 

protected activities. Rogers may well have told Jistel that Campbell was upset about the 

citations. However, Jistel's claims of abusive treatment by Rogers are difficult to square with the 

fact that Jistel felt that he was good friends with Rogers and Rogers, similarly, felt that he was 

always on good terms with Jistel. Tr. 80. 

If Trinity had wanted to retaliate against Jistel because of the June 4, 2001, citation, or his 

subsequent participation in the investigation, it seems that it would have done so before 

October 25, 2001. The lapse of more than four months between the event that allegedly provided 

the primary motivation for retaliation and the adverse action substantially weakens any inference 

of unlawful motivation. Jistel's involvement in the fight with Padilla presented an opportunity 

for Trinity to discharge Jistel consistent with its established disciplinary process. Yet, Jistel was 

not disciplined. It strains credulity to suggest that Trinity, supposedly eager to retaliate against 

Jistel, would have passed up the opportunity to discharge him for fighting and waited to use the 

curtailment of activities at the Seagoville facility as a "pretext" to lay him off. 

On consideration of all the evidence, I find that Complainant has failed to carry his 

burden of proof, and that his lay-off was not motivated in any part by his protected activity. 

ORDER 

For the reasons stated above, I find that Trinity's decision to discharge Jistel was not 

motivated in any part by Jistel's protected activity. Rather, it was based solely upon legitimate 

business considerations. Accordingly, the Complaint of Discrimination is hereby DISMISSED. 

. Zielinski 

~.e&l:i:l. tl'I. strative Law Judge 

160 

,. 
Distribution (Certified Mail): 

Jason M. Willett, Esq., Hinds & Willet, 510 West Main Street, Waxahachie, TX 75165 

Arnold J. Jistel, 150 Crump Circle, Red Oak, TX 75154 

David M. Curtis, Esq., Gardere Wynne Sewell LLP, 3000 Thanksgiving-Tower, 1601 Elm Street, 

Dallas, TX 75201-4761 

Jerry L. Myers, Esq., Corporate Counsel, Trinity Materials, Inc., 2525 Stemmons Freeway, 

Dallas, TX 75207 

/mh 

161 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, DC 20001 

BA YOR MINING, INC., 

Contestant 

v. 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BAYLOR MINING, INC., 

Respondent 

March 28, 2003 

CONTEST PROCEEDING 

Docket No. WEVA 2001-124-R 

Citation No. 7188738; 9/5/01 

Jim's Branch No. 3A 

Mine ID 46-08593 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 2002-103 

A.C. No. 46-08593-03529 

Jim's Branch No. 3A 

DECISION APPROVING SETTLEMENT ON REMAND 

Before: Judge Hodgdon 

These cases are before me on a Notice of Contest and a Petition for Assessment of 

Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(d). These consolidated proceedings were reopened and remanded by the Commission. 

Baylor Mining, Inc., Docket Nos. WEVA 2001-124-R and WEVA 2002-103 (May 30, 2002) 

(unpublished). The Secretary, by counsel, has filed a motion to approve a settlement agreement. 

Modification of the level of negligence from "moderate" to "low" and modification of the 

descriptive narrative in section 8 of the citation are advanced. In return, the Respondent has 

agreed to pay the proposed penalty in full. 

162 
Having considered the representations and documentation submitted, I conclude that 

the proffered settlement is appropriate under the criteria set forth in section llO(i) of the Act, 30 

U.S.C. § 820(i). Accordingly, the motion for approval of settlement is GRANTED, the citation 

is MODIFIED as indicated and the Respondent is ORDERED TO PAY a penalty of $259.00 

within 30 days of the date of this order. In view of the settlement, the hearing scheduled for 

April 8, 2003, is CANCELED. 

d~N~ T~ToddHod~7 .. - -

Administrative Law Judge 

Distribution: 

Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, 

1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209 

David J. Hardy, Esq., Spilman Thomas & Battle, PLLC, Spilman Center, 

300 Kanawha Boulevard, East, P.O. Box 273, Charleston, WV 25321 

/hs 

*this settlement was originally issued March 28, 2003 and a corrected version issued April 2, 

2003. The correction had no effect on the terms of the settlement. 

163 

ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, NW, Suite 9500 

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

CACTUS CANYON QUARRIES OF 

TEXAS, INCORPORATED, 

Respondent 

March 3, 2003 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2002-80-M 

A.C. No. 41-00009-05555 

Docket No. CENT 2002-124-M 

A.C. No. 41-00009-05556 

Docket No. CENT 2001-285-M 

A.C. No. 41-00009-05550 

Docket No. CENT 2001-286-M 

A.C. No. 41-00009-05551 

Docket No. CENT 2001-363-M 

A.C. No. 00009-05552 

Docket No. CENT 2001-364-M 

A.C. No. 41-00009-05553 

Docket No. CENT 2001-379-M 

A.C. No. 41-00009-05554 

Mine: Fairland Plant and Quarries 

ORDER ON MOTIONS TO DISMISS 

These consolidated cases are before me on Petitions by the Secretary for the assessment 

of Civil Penalties for the alleged violation of mine safety regulations. The Respondent has in 

each case filed a Motion to Dismiss the Petition on various grounds all related to the lapse of 

time between the inspection, assessment of penalty and petition stages of the process. An 

opportunity for presentation of evidence was afforded both parties on June 25, 2002. Both 

parties declined to present witnesses at the hearing while the Secretary presented two affidavits. 

The hearing became an extended oral argument on the several variations on the theme of 

dismissal for delay raised by the respondent. These cases present for careful decision questions 

both of procedure and substance in this frequently encountered but often finessed area of 

practice. 

164 
Factual ac ~ound 

Cactus Canyon Quarry operates a small facility in the Texas Hill Country. It has received 

regular visits from MSHA inspectors. 1 The quarry is located in the MSHA Region administered 

through the Dallas Regional Office. The first inspector visit of concern here occurred on 

August 14, 2000. The visit resulted in citations which form the basis for three of the seven cases 

before me. Subsequent visits occurred on March 29, 2001, and June 27, 2001. These visits 

resulted in citations which form the basis for the other four cases before me. 

Based on the materials attached to the Petitions, as explained to a limited extent by 

representations of counsel, the inspections did not disclose potential violations with complex 

legal or factual implications. Only two potential violations were considered sufficiently 

important to require "special assessment" of the appropriate penalty. These potential violations 

included a failure to wear a safety harness and removal of a guardrail protecting dangerous 

machinery. As to the guardrail violation, Respondent has argued responsibility for the violation 

lies with a former employee who acted as a "saboteur." 

The procedure followed after completion of the site inspections is described in affidavits 

by Mr. Michael Davis and Mr. Stephen Webber. Mr. Davis is now the Assistant District 

Manager for the Dallas, Texas District Office of the Mine Safety and Health Administration. He 

asserts he has knowledge of the methods and schedules for processing mine safety inspection 

reports as the reports are evaluated in the District Office for assessment of Civil Penalties. 

Mr. Webber is stationed in the national office of the Mine Safety and Health Administration with 

responsibility for processing of proposed assessments of Civil Penalties. Mr. Webber is one of 

the principal authors of a Program Policy Letter by the Department of Labor on the subject of 

Proposed Assessment of Civil Penalties. This Program Policy Letter purports to be the definitive 

interpretation of the Mine Safety and Health Act of 1977 issued by the Secretary as part of her 

responsibility for administration and enforcement of the Act. I note, however, that the time 

periods for processing penalty assessment recommendations are stated as goals rather than 

limitations, with liberal use of should rather than must as the modifier. It is undisputed that none 

of the assessments related to the citations issued in these cases was processed in the time periods 

which the Secretary established as processing time goals. 

The affidavits by Mr. Webber and Mr. Davis describe an organization in some distress. 

Action on a report by an inspector requires documents to move through the organization with a 

computer record kept of each movement. But these movements cannot be completed in a timely 

manner if computer operators are not present in sufficient numbers. During the period the 

reports .concerning Cactus Canyon Quarry were pending, severe shortages of computer operators 

were encountered. Other personnel shortages were also encountered. The affidavits do not 

1 This summary is based on written material now in the record as well as representations 

of counsel. It does not preclude modification of these conclusions in the event an oral hearing is 

necessary. 

165 
indicate that any effective management response to these shortages was implemented. It appears 

management simply decided to "grin and bear it." The citations issued to Cactus Canyon 

Quarries were not processed in any different manner or on any different schedule than any other 

citations processed during the same period. None of the alleged violations of mine safety 

regulations raised legal or factual issues of any great complexity or difficulty. Counsel for the 

Secretary essentially conceded at the hearing that delays in these cases were only the result of 

clerical shortages. 

On the reverse side of the delay coin, Cactus Canyon Quarries has conceded that the delay 

in these cases has not worked any special hardship on its ability to respond to the claims, with the 

unsupported assertion that with respect to one claim it was deprived of the ability to raise an 

affirmative defense of intervening action by an alleged "saboteur" in the person of a disgruntled 

supervisory employee. The Commission has established relatively clear authority that a mine 

operator is held to a "strict liability" standard in assuring compliance with safety regulations and 

the intervening actions of a "saboteur" would not be sufficient to prevent liability. Secretary of 

Labor v. Ideal Cement Company, 13 FMSHRC 1346 (Sept., 1991). The only relevance a claim 

of actions by a "saboteur" would be to the level of negligence involved in the violation. In any 

event, testimony by the alleged "saboteur" would not be essential to evaluate the consequences of 

this argument for mitigation of the claim amount 

Policy Analysis 

My policy analysis of the issue of when a hearing on the merits can be preterminated 

begins by identifying three critical vectors; ( 1) the interest of the public in assuring a safe work 

place through administrative oversight, (2) the interest of the mine operator in fair and 

economical administration of a safety program; and (3) the interest of the government agency in 

economical and effective administration of a safety program. The direction the resulting vector 

points tells me whether a hearing is appropriate. 

Resolution of these vectors begins by postulating a legislative intent in the Mine Act that 

every allegation of a safety defect identified by responsible officials should result in an 

opportunity for a hearing to resolve whether a defect was present and the appropriate sanction for 

that defect. An opportunity for a hearing serves to protect both the worker at risk from unsafe 

conditions as well as the operator responsible for providing those conditions. The safety system 

created by Congress assumes an opportunity for open contest of facts and policies. Only by open 

dialogue on these important questions can workplace safety be improved or maintained. 

This "presumption" that every allegation of a safety problem is entitled to a hearing must 

be moderated by the need to establish a limit on hearings to protect the mine operator from 

unfairness or harassment in responding to safety inspections. The general trend of decided cases 

is to dismiss complaints where there is some reason to believe the delay in filing had the natural 

effect (intended or not) in putting the Respondent at an unfair disadvantage in making a defense. 

Where there is reason to believe the government intentionally manipulated the case schedule to 

deprive the Respondent of a legitimate defense, dismissal is even easier. 

166 
Finally, there are multitudes of cases which stand for the proposition that government 

agencies as entities cannot be prejudiced by the inadvertent acts of individual employees. There 

is no allegation by the Operator that any of the delays encountered in these cases was intentional 

or otherwise designed to put the Operator at a disadvantage. See, Secretary of Labor v. Pierce 

County, 476 U.S. 253 (1986) and cases cited there. 

The vector for the public interest points clearly in support of providing a hearing in this 

and in most cases. 

The Operator has an interest in prompt and fair adjudication of any claim against it. If 

heard and decided promptly (1) the evidence for any defense is fresher, (2) the uncertainty 

inherent in any claim clouds the financial.status of the operator, and (3) the pending claim is a 

distraction from management focus. The Operator has an interest in resolution of unclear issues 

of law or policy even at the expense of some delay. There do not appear to be legal or policy 

issues of great significance raised in these cases. 

The vector for Operator interest points away from a hearing in the face of any substantial 

delay in obtaining a hearing. 

The interests of the Secretary fall into the areas of efficient management of resources and 

pursuit of program objectives. Efficient management of resources implies some flexibility in 

when and where to employ people and money, but with a need to maintain accountability. 

Pursuit of program objectives implies an intention to bring every case to a hearing on its merits 

and every hearing sooner rather than later. 

The vector of the Secretary's interest appears to point strongly toward a hearing. 

There remains one final interest to be considered, the interest of the Commission in 

enforcement of its procedural regulations. Commission Rule 28(a), 29 C.F.R. § 2700.28(a), 

provides that a petition for assessment of a civil penalty shall be filed within 45 days of receipt of 

a timely contest of a proposed penalty assessment. This time is subject to extension for good 

cause under Commission Rule 9, 29 C.F.R. § 2700.9. It seems fair to conclude that the longer 

the delay in filing the more compelling the reasons must be to justify extending the 45-day 

period. 

LeeaJ Conclusions 

Respondent makes two essential contentions; (1) the time between issuance of citations 

and assessment of a penalty was too long, and (2) the time between Respondent's objection to the 

assessments and filing of Petitions was too long. 

1. Time before Assessment 

Two key elements must be considered in connection with this period of delay; the 

167 
statutory language in the Mine Safety Act, 30 U.S.C. § 815(a), and the published interpretation of 

that language by the Secretary. The statute requires that notification of a penalty assessment shall 

follow issuance of a citation "within a reasonable time." The meaning of "within a reasonable 

time" has been litigated many times. The Fifth Circuit decision in Seven Elves v. Eskenazi, 

635 F.2d 396 (C.A. 5, 1981) is particularly enlightening. The Court was confronted with a 

motion to vacate a default judgment entered under confusing circumstances. The judgment was 

for a substantial amount. The judgment debtor filed a motion to vacate within 2 weeks of 

learning of the entry of judgment and less than a year after the judgment was entered. Noting 

that the precise extent of a "reasonable time" is a matter to be determined on the particular facts 

of each case, the Court stated that the term should be "liberally construed in favor of trial on the 

full merits of the case." (Supra, at 403) See, Secretary of Labor v. AMAX Coal Company, 

3 FMSHRC 1975 (Aug. 1981) which involved a period of 361 days between issuance of a 

citation and notification of assessment of a penalty. 

These cases are consistent with the remand order by the Commission in CENT No. 2002-

379-M that directed the Administrative Law Judge to determine whether the Respondent had 

suffered prejudice from the entire period of delay rather than the period between notice of 

assessment and filing of the Petition. The Commission was looking for prejudice to the 

Respondent as the key factor in determining whether the delay was a "reasonable time". Only in 

the face of significant prejudice would the Commission deal with the often complex questions of 

explanation of the time it takes for a government agency to act. 

This principle would be very easy to apply in this case if it were not for the fact that the 

Secretary has also attempted to define a "reasonable time" for purposes of processing penalty 

assessments. The view of the Secretary on this topic should be entitled to deference, particularly 

because it is a subject virtually under her total control, i.e. the flow of paper through the agency. 

The Secretary quite laudably expressed a narrow view of what is a "reasonable time" for the 

agency to move a citation to a decision on assessment. The issue for me must be whether the 

failure to satisfy the time requirements stated by the Secretary is fatal to prosecution of these 

cases in the absence of a showing of prejudice to Respondent by the passage of time. 

I consider this a difficult and delicate issue. While some effect must be given to the 

views of the Secretary on this fundamental concept of "reasonable time" to pursue penalty 

claims, I believe the bulk of the decided cases indicate that adopting the Respondent's position 

on this issue would be totally inconsistent with the intent and purpose of the Mine Safety Act. In 

the absence of demonstrated prejudice to a Respondent from delay in assessing a penalty or filing 

a Petition, the only effect of delay in proceeding longer than endorsed by the Secretary is to 

impeach the credibility of the witnesses called by the Secretary to argue the urgency and 

importance of the alleged safety violations. 

I must conc.lude that the time taken in these cases by the Secretary to notify the 

Respondent of the penalty assessment was not so long and prejudicial as to preclude the 

Secretary from proceeding to a hearing on these claims. 

168 
2. Time before Petition 

The Commission has held in several cases that the 45-day period for filing a petition of 

assessment of a penalty is not a statute of limitations. See, Rhone-Paulene of Wyo. Co~, 

15 FMSHRC 2089 (Oct. 1993) aff'd 57 F.3d 982 (10th Cir. 1995). The test as to the limit oftime 

at this point in the process is essentially the same as the test for a "reasonable time" at the earlier 

. stage of the process, i.e. prejudice to the Respondent balanced by adequate explanation for the 

time taken beyond that afforded by the Commission's Rule. For small delays accepted adequate 

explanations include press of other work, inadequate clerical assistance and personal hardships. 

For longer delays the reasons need to be more unique and special to the particular case, e.g., 

distraction from investigation of a major mine accident or loss of staff to national emergency. 

My conclusion assumes good faith on the part of government agency management to reallocate 

people to cover the pending work load as quickly as possible. 

I must conclude that none of the delays in filing Petitions in these cases was so long and 

so beyond the explanations given by counsel for the Secretary as to preclude the Secretary from 

obtaining a hearing on the merits of these claims. 

ORDER 

For the reasons given above, the several motions to dismiss filed by the Respondent in the 

above captioned matters are denied. Counsel are directed to confer within the next 30 days on 

any discovery matters they believe need to be complete prior to a hearing. Counsel for the 

Secretary will initiate a preheating conference by telephone call within 10 days of completion of 

discovery. The purpose of the preheating conference will be to schedule a time and place for a 

hearing. 

(' f7 /1 ,J;I 

k"~-~'°~ Irwin Schroeder 

Administrative Law Judge 

Distribution: (Certified Mail) 

Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 525 S. Griffin Street, · 

Suite 501, Dallas, TX 75202 

Andy Carson, Esq., 7232 County Road 120, Marble Falls, TX 78654 

169 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

March 5, 2003 

THOMAS P. DYE II, 

Complainant 

v. 

MINERAL RECOVERY SPECIALISTS, INC.,: 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2002-408-DM 

RMMD02-ll 

Mine l.D. 05-01732 

Cotter Mill 

ORDER REVOKING SUBPOENA ISSUED TO COTTER CORPORATION 

This proceeding was brought by Thomas P. Dye against Mineral Recovery Specialists, 

Inc., ("MRSI") under section 105(c) 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. The complaint alleges, in part, 

that MRSI violated section 105(c) of the Mine Act when it terminated Dye as a temporary fulltime employee because he insisted that a recently repaired piece of equipment be fully safetytested before it was put back into service. MRS! denies the allegations in the complaint. 

Mr. Dye filed a motion for issuance of a subpoena to produce documents under the 

custody and control of Cotter Corporation ("Cotter"). Cotter Corporation owns and operates the 

Cotter Mill in Fremont County, Colorado. MRS! provided certain engineering and oversight 

services to CMS Enterprises, LLC ("CMS") for the zirconium and uranium recovery process 

being developed by CMS at the Cotter Mill. In his motion for issuance of a subpoena, Mr. Dye 

alleged that he needed these documents for the preparation of his case in this proceeding. I 

mailed a subpoena to produce document or object to Mr. Dye on January 7, 2003. Cotter is not a 

party in this proceeding. 

In response, Cotter filed a motion to revoke the subpoena under 29 C.F.R. § 2700.60(c). 

Cotter states that the subpoena is overly broad, exceedingly vague, and is unduly burdensome. 

Cotter states that the subpoena seeks information that is outside the proper scope of discovery 

because the information would neither be relevant to this case nor would it lead to the discovery 

of relevant evidence. In addition, Cotter states that the subpoena seeks the disclosure of 

information that is of a proprietary nature and protected by Colorado's Uniform Trade Secrets 

Act. 

The hearing on the merits in this case was held on March 4, 2003. About a week prior to 

the hearing, during a phone conversation with Mr. Dye, I advised him that if I enforced his 

subpoena, the hearing would have to be postponed to give Cotter time to comply with the 

170 
subpoena. Mr. Dye advised me that, although he would like the documents he requested, he did 

not want to postpone the hearing. Although Mr. Dye did not specifically state that he was 

withdrawing his subpoena, the subpoena is now effectively moot because the evidentiary hearing 

has been completed and the record in this case is closed. 

In addition, for the reasons stated below, I find that the documents requested are not 

relevant to this case and searching for them would place an unreasonable burden on Cotter. In 

the subpoena, Mr. Dye requested the following documents: 

1. Copies of all training certificates on file for MRSI. 

2. Copies of all incident, accident, and security reports which involve any workers 

employed by MRSI. 

3. Copies of operation areas logbooks relating to sulfation, CCDs, and the Kiln from 

August 1, 2000, to August 16, 2002. 

4. Copies of all shifters' logbooks from August 1, 2000, to August 16, 2002, that involve 

MRSI or its employees. 

5. Copies of all mechanics' logbooks and records in relation to repairs, construction, 

engineering changes, commissioning and decommissioning of the zirconium project from August 

1, 2000, to August 16, 2002. 

6. Copies of mill foremen's logbooks from August 1, 2000, to August 16, 2002. 

Cotter maintains that the subpoena is unduly burdensome because it would require Cotter 

to review thousands of pages of documents. Cotter also filed specific objections to each of the 

document requests. I agree that the subpoena is overly broad and I find that the subpoena is 

highly unlikely to uncover evidence that would be relevant to this proceeding. Mr. Dye was 

seeking the documents because of his belief that they would "reveal numerous incidents that 

involve Mr. Dilday and a lack of incidents involving Mr. Dye." Dye contends that he was a safer 

employee than Dan Dilday, MRSI's project manager at the Cotter Mill. As I advised the parties 

at the March 4 hearing, the issue in this case is whether Mr. Dye engaged in protected activity 

and whether he was terminated as a result of this protected activity. Whether Mr. Dilday had 

been involved in "numerous incidents" is not particularly relevant. 

Dye also sought the documents to show that MRSI employees were not sufficiently tasktrained and to "reveal the incompetent orders given by Mr. Dilday of MRSI, many of which 

resulted in failed pumps, spills, and unsafe incidents." Dye did not know if any of the requested 

documents would uncover such evidence but he wanted to review them to see if they did. Mr. 

Dye and his witnesses testified about Mr. Dilday's "incompetent orders" at the hearing and 

MRSI's witnesses responded to this testimony. The testimony on this subject was not relevant to 

the issues in this case. I find that the documents that Mr. Dye requested in the subpoena were 

unlikely to be admissible evidence and would not have led to the discovery of admissible 

evidence. 

171 
For the reasons set forth above, the motion to revoke the subpoena issued to Cotter 

Corporation is GRANTED and the subpoena is REVOKED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Mr. Thomas P. Dye, 1428 S 4th Street, Canon City, CO 81212-9664 

Anne T. Nichting, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202-

1958 

Mineral Recovery Specialists, Inc., 200 E. Main Street, 6th Floor, Johnson City, TN 37604 

RWM 

172 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W .. Suite 9500 

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of RAYMOND ROMAN, 

Complainant 

v. 

EAGLE COAL COMPANY, INC., 

Respondent 

March 24, 2003 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2000-125-D 

PIKE CD 99-04 

No. lOMine 

Mine ID No. 15-17977 

ORDER DENYING MOTION TO POSTPONE HEARING 

Hearings in this case were initially scheduled on April 21, 2000, to commence on June 6, 

2000. On May 23, 2000, at the request of the Respondent, hearings were postponed and 

rescheduled to commence on August 15, 2000. At hearing on August 15, 2000, Respondent 

moved for a stay because two of its essential witnesses were then the subject of related criminal 

and "Section llO(c)" investigations. 

On November 15, 2002, the Secretary filed a motion to lift the stay, however, counsel for 

both parties advised that they would not be available for trial until April 2003. On November 27, 

2002, the stay order was therefore continued but the parties were ordered therein to hold open 

April 1, 2003, as the trial date. A second notice to that effect was issued on March 7, 2003. 

On March 21, 2003, the Respondent again filed a motion for continuance of hearing 

claiming that it had not received a requested letter from the U.S. Attorney that he would not 

prosecute two of his key witnesses, and that those witnesses would therefore still find it 

necessary to assert their Fifth Amendment Constitutional privilege (the grounds for the initial 

stays in this case). However, since it is not the general practice of U.S. Attorneys to issue letters 

guaranteeing not to prosecute, it is unlikely, under the Respondent's scenario, that trial of this 

case could ever commence. 

Respondent, as well as the Secretary, also claim that they are having difficulty locating 

witnesses. Since they were informed of the April 1, 2003, trial date nearly four months ago 

however they have had ample time to locate those witnesses. 

Considering the age of this case and the above factors, I cannot grant the requested 

postponement, and it is therefore denied . 

GaryM . lick \ Adminis~tive Law udge 

(202) 434-9977 

173 
Distribution: (By Facsimile and Certified Mail) 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd., 

Suite B-201, Nashville, TN 37215 

Michael J. Schmitt, Esq., Wells, Porter, Schmitt & Jones, 327 Main Street, P.O. Drawer 1767, 

Paintsville, KY 41240-1767 

\mca 

174 

*U.S. GOVERNMENT PRINTING OFFICE:2003-496-533/85702