FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19th ST. SUITE 443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266 / FAX: 303-844-5268

December 2, 2020

DECISION AND ORDER

Appearances: Pete Tartaglia, Jr., 8340 N. Thornydale Road #209, Suite 110, Tucson, AZ 

85741

Laura E. Beverage, Jackson Kelly PLLC, 1099 18th Street, Suite 2150,

Denver, CO 80202

Karl F. Kumli, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, 

CO 80202

Before: Judge Simonton 

This case is before me upon a complaint of discrimination filed by Pete Tartaglia, Jr. 

(“Tartaglia” or “Complainant”) against Freeport-McMoRan Bagdad Inc. (“FMBI” or 

“Respondent”), pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 

(Mine Act), 30 U.S.C. § 815(c)(3).1 Tartaglia complains of numerous occurrences in which he 

believes FMBI has improperly discriminated or retaliated against him. In particular, he asserts 

that FMBI violated a settlement agreement reached in WEST 2018-0362-DM, wrongfully took 

money from his paychecks, and disciplined him in April 2019 in response to his protected 

activity. FMBI denies these claims and asserts that it fulfilled its obligations under the 

settlement agreement, properly recouped a double payment made to Mr. Tartaglia, and 

disciplined him in April 2019 solely because of his refusal to complete assigned work.

A hearing was held on March 11, 2020 in Phoenix, Arizona. Based on my full 

consideration of the testimony and exhibits presented at hearing, the stipulations of the parties, 

my observations of the demeanors of the witnesses, and the parties’ post-hearing submissions, I 

find that neither party violated the settlement agreement reached in Tartaglia’s prior section 

 1 In this decision, the joint stipulations, transcript, the Complainant’s exhibits, and Respondent’s 

exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. C-#,” and “Ex. R-#,” respectively.

PETE TARTAGLIA, JR.,

 Complainant,

 v.

FREEPORT-MCMORAN BAGDAD INC.,

 Respondent.

DISCRIMINATION PROCEEDING

Docket No. WEST 2019-0382-DM

MSHA Case No. RM-DM-2019-08

Mine ID: 02-00137

Mine: Freeport-McMoRan Bagdad Inc.
–3–

105(c) case. Further, I find that FMBI did not violate the Mine Act in recouping money 

erroneously paid twice to Tartaglia or in disciplining him on April 11, 2019. 

I. STIPULATIONS

At hearing, the parties agreed to the following joint stipulations:

1. The Freeport-McMoRan Bagdad Inc. Mine, Mine I.D. No. 02-00137, is subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq.

(the “Mine Act”).

2. Freeport-McMoRan Bagdad Inc. is an operator within the meaning of the Mine Act.

3. The Administrative Law Judge has jurisdiction of this matter.

4. Tartaglia was employed by Freeport-McMoRan Bagdad Inc. and was therefore a “miner” 

as defined by § 3(g) of the Act, at all times relevant to this proceeding.

5. Tartaglia filed a complaint under § 815(c) on or about March 20, 2019.

6. That complaint was investigated by MSHA and on or about May 20, 2019, MSHA

indicated to Tartaglia that it would not pursue the claim. Tartaglia then initiated his Pro 

Se Discrimination Complaint on or around June 19, 2019.

7. Tartaglia filed a hotline complaint with MSHA on November 20, 2018.

Tr. 11–16.

II. ISSUES

Tartaglia’s pleadings were unclear regarding the scope of the claims he would pursue at 

hearing. On December 30, 2019, FMBI filed a motion in limine to limit the scope of issues 

before the court, requesting that the issues to be tried be limited to those Tartaglia articulated in 

his March 20, 2019 complaint to the Mine Safety and Health Administration (MSHA) or that 

arose during the pendency of the investigation of that complaint. Following a conference call 

and a response submitted by Tartaglia, I enumerated the issues that would be entertained at 

hearing in a February 10, 2020 order. After further submissions and another conference call with 

the parties, some additions were made to that list. As announced and agreed to by the parties at 

hearing, the five issues before the court are:

1. Whether either party violated the settlement agreement entered into at hearing in WEST 

2018-0362-DM.

2. Whether Tartaglia’s allegation regarding FMBI’s recovery of bonus money erroneously 

paid twice is time-barred under section 105(c)(2) of the Mine Act. 

3. If not time-barred, whether the recovery of bonus money erroneously paid twice to 

Tartaglia is an adverse action motivated by protected activity.
–4–

4. Whether disciplinary action taken against Tartaglia on April 11, 2019, was an adverse 

action motivated by protected activity. 

5. If a violation of section 105(c) is found, what remedies are available to Tartaglia.

Tr. 22–23.

III. FINDINGS OF FACT

A. Tartaglia’s First MSHA Action and Settlement

The instant case is not Tartaglia’s first action before this court. Tartaglia’s prior section 

105(c) case, assigned Docket No. WEST 2018-0362-DM, went to hearing before me on 

September 19–20, 2018. At that hearing, the parties reached a settlement and read the terms of 

the agreement into the record. The terms provided that (1) FMBI would make a cash payment to 

Tartaglia for housing costs, (2) FMBI would provide a neutral reference for Tartaglia from a 

Freeport-McMoRan employee outside of FMBI, (3) Tartaglia would maintain the confidentiality 

of the settlement terms, and (4) Tartaglia would release all pending and potential claims up to the 

time of hearing. Respondent’s Post-Hearing Brief (Resp. Br.) at 3.

Following that hearing, FMBI produced a written version of the parties’ agreement. The 

court held numerous conference calls to address concerns Tartaglia had with the details and 

language of the written version. After revisions were made, Tartaglia ultimately signed the 

written agreement, but later determined that he did not wish to adhere to its terms. FMBI elected 

not to submit the written agreement for review and approval. On January 14, 2019, I directed 

Tartaglia to either provide proof that he complied with the settlement terms reached orally at 

hearing or to notify the court that he wished to submit a post-hearing brief and pursue a decision 

on the merits. He failed to timely elect either option. 

On January 25, 2019, FMBI submitted a motion to enforce the settlement agreement as 

stated on the record and to file that portion of the hearing transcript under seal. Tartaglia then 

submitted a brief response reiterating his intention not to comply with the settlement terms. On 

February 11, 2019, I issued a Decision Approving Settlement Under Seal and Order Enforcing 

Settlement Agreement finding that the agreement entered into at the hearing on September 20, 

2018 was valid and enforceable. Tartaglia had not put forth any evidence that FMBI

misrepresented or failed to comply with its responsibilities under the settlement agreement.

Having received no valid legal justification to set aside the agreement and no request from 

Tartaglia stating he wished to pursue a decision on the merits, I granted Freeport's motion to 

enforce the settlement agreed to on the record at hearing.

In the present matter, Tartaglia alleges that FMBI violated the settlement agreement. 

Complainant’s Complaint Letter received June 24, 2019. In particular, he asserts that FMBI 

stole money from his paychecks and then paid that money out to him in his settlement check. 

Id.; Tr. 210, 223–24.

FMBI proffered evidence of its attempt to provide Tartaglia with the settlement money. 

Following my February 11, 2019 decision upholding the settlement and dismissing the first 

action, FMBI sent a check via certified mail on March 5, 2019 for the agreed-upon amount. Tr. 

327–28; Ex. R-I. The check was accompanied by a letter signed by FMBI’s human resources 
–5–

manager, Michelle Kessler, which referenced the docket number in that case and the confidential 

agreement the parties had entered. Ex. R-I; Tr. 327–28. 

As he asserted at hearing in this case, Tartaglia had no interest in cashing the check 

because he believed the money was wrongfully taken out of his pay. Tr. 233. However, as 

explored in more detail below, the withdrawals made from his pay between November 11, 2018

and December 28, 2018 were unrelated to the settlement check. They were necessary due to an 

accounting error FMBI made when it economically reinstated Tartaglia pursuant to an arbitration 

decision issued in July 2018. The details of that error are discussed infra.

Following the March 11, 2020 hearing in this case, Tartaglia asked FMBI to send him a 

another check to replace the original one which he had not posted. Resp. Br. at 7, Attach. A. 

The replacement check was sent on March 25, 2020. Resp. Br. at 7, Attach. B. On April 11, 

2020, after the replacement check had been sent but before Tartaglia had retrieved it, Tartaglia 

submitted a request to the court for a “Default Penalty Due to the Failure to Comply 

Accordingly.” In the request, he asserted that FMBI had not paid him the settlement money. 

FMBI, through counsel, provided the court with the tracking information showing that the check 

had arrived at the post office on March 28, 2020. Having determined that Tartaglia’s check had 

been available at the address he provided for over two weeks, I denied his request for a default 

penalty. Tartaglia then posted the check on April 16, 2020. Resp. Br. at 7, Attach. F. 

B. Recovery of Tartaglia’s Duplicate Bonus Payment

Prior to the September 2018 hearing, Tartaglia participated in FMBI’s internal problem 

solving process which resulted in a July 6, 2018 arbitration decision. Resp. Br. at 2–3, 7. That 

decision required FMBI to reinstate Tartaglia to his former position and pay him for all lost 

wages and benefits, less interim earnings. Id. at 2–3. Tartaglia was economically reinstated 

effective July 29, 2018, and he returned to work on or about August 20, 2018. Id. at 3. 

In economically reinstating Tartaglia, FMBI made a substantial error. Tartaglia was 

owed a $6,520.00 bonus, and the company mistakenly disbursed it to him twice. First, the bonus 

amount was added to an initial gross back pay calculation. Delbert Tso, a human resource 

specialist employed by Freeport-McMoRan in Phoenix, was responsible for calculating the back 

pay award owed to Tartaglia based on information provided to him “from various sources.” Tr. 

106–07; Resp. Br. at 4. Tso created a spreadsheet which showed the back pay owed to Tartaglia 

from October 2017 through his return to work in August 2018. Tr. 107–08; Ex. R-EE. The 

spreadsheet lists the regular earnings, overtime earnings, and $6,520.00 bonus Tartaglia was 

owed, as well as vacation and sick leave owed. Tr. 108; Ex. R-EE. Tso also incorporated into 

the spreadsheet a deduction of $6,240.00 for unemployment benefits Tartaglia received between 

his termination and his reinstatement. Tr. 108–09; Ex. R.-EE. Deducting unemployment in this 

way is a standard practice. Tr. 109, 129.

Per Tso’s calculations as displayed on the spreadsheet, Tartaglia was owed $50,896.53. 

Ex. R-EE. After approval from the mine site, benefits department, and legal department, Tso 

emailed the corporate payroll office for payout of the back pay award. Tr. 111. Tso’s 

involvement in the process ended once he sent that email. Tr. 111.

Payroll supervisor Christina Jordan testified about the payout from FMBI to Tartaglia. 

Tr. 167–70. She explained that the $50,896.53 amount arrived at in the spreadsheet was the 
–6–

gross back pay award and did not reflect taxes or other deductions. Tr. 168–69. After

$18,935.91 in taxes and $9,296.62 in other deductions, the $50,896.53 back pay award owed to 

Tartaglia totaled 22,663.80,

2 and that amount was paid to him via direct deposit on August 30, 

2018. Ex. R-FF.

Tartaglia was mistakenly paid the $6,520.00 bonus a second time the following week, on 

September 7, 2018. Tr. 170–71. That check was for $4,410.78, reflecting the bonus amount less 

taxes and other deductions. Ex. R-GG. In explaining the error, payroll supervisor Jordan stated

that her department’s standard practice is to issue reinstatement amounts separately from bonus 

checks. Tr. 170. Of course, in this instance, the bonus amount had already been incorporated 

into the reinstatement amount. Human resources manager Kessler informed Jordan of the error

after it occurred. Tr. 171.

Kessler did not discover the error, but testified that she was notified by her supervisor in 

Phoenix that the bonus had been paid twice. Tr. 340–42. Apparently, the mistake happened

because the original back pay spreadsheet included the bonus, and then the compensation 

department sent over a “separate ticket,” which initiated the mistaken second payment. Tr. 343. 

After she was notified of the error, Kessler called Tartaglia to inform him of what had happened. 

Tr. 350. As Kessler recalls, Tartaglia hung up on her before she could explain everything, so she 

called back and left a voicemail. Tr. 350.

Following the phone communication, Kessler sent Tartaglia a letter explaining the error 

and the recoupment options. Tr. 258, 342, 350–51; Ex. R-HH. Notably, this letter informing 

Tartaglia of the payment error was sent on September 17, 2018, just a few days prior to the 

September 19–20, 2018 hearing in WEST 2018-0362-DM. Tr. 258; Ex. R-HH. In the letter, 

Kessler presented Tartaglia with two options for correcting the error. Ex. R-HH. He could 

either provide payment for the net amount of $4,410.78 by September 28, 2018 or the company 

could deduct the total net amount from four paychecks in approximately equal amounts. Id. The 

letter requested that Tartaglia respond by September 28, 2018 to inform Kessler if he disputed 

the overpayment, or, if not, to advise Kessler which option he wanted to elect for repayment of 

the extra bonus. Id. 

Tartaglia failed to timely respond to Kessler’s letter. Tr. 354. Accordingly, as specified 

in the letter, Kessler assumed that Tartaglia did not dispute the overpayment and that he would 

prefer to have the $4,410.78 deducted from four paychecks. Tr. 354. The money was then 

deducted from five of Tartaglia’s paychecks as follows:

 2 The court recognizes that $50,896.53 minus $18,935.91 minus $9,296.62 equals $22,664.00, 

not $22,663.80. However, in the check stub testified to by Jordan, Ex. R-FF, it appears that the

starting number was $50,896.33, $0.20 less than the number arrived at in Tso’s spreadsheet, Ex. 

R-EE. This minor $0.20 discrepancy was neither explained by FMBI nor challenged by 

Tartaglia, so I accept that $22,663.80 is the correct amount owed to Tartaglia after taxes and 

other deductions. 
–7–

Pay Date Amount Withheld

11/02/2018 $1,304.00

11/16/2018 $1,304.00

11/30/2018 $1,304.00

12/14/2018 $800.63

12/28/2018 $1,807.37

TOTAL $6,520.00

Ex. R-II; Tr. 173–74. The parties did not specifically address why five withdrawals were made 

instead of four, but Jordan testified that the fourth was for only $800.63 because Tartaglia did not 

have enough wages in that pay period to cover the full $1,304.00. Tr. 194–95. Jordan further 

testified that the gross bonus amount, $6,520.00, was deducted rather than the net amount 

because taxes “self-adjust.” Tr. 174.

Prior to and at the hearing, Tartaglia disputed FMBI’s assertion that the deductions were 

proper, maintaining instead that FMBI stole this money from his checks in order to pay his 

settlement. See, e.g., Tr. 201, 224; Complainant’s Post-Hearing Brief (Comp. Br.) at 3, 4. At 

Tartaglia’s request, FMBI senior human resources generalist David Fendrich provided Tartaglia 

with requested copies of his check stubs and reviewed the back pay spreadsheet with him. Tr. 

427–28, 436. Tartaglia remains unconvinced that the overpayment actually occurred and, thus, 

that the recoupment was proper. Tr. 339, 344; Comp. Br. at 3, 4; see also Tr. 261, 437. 

Tartaglia has put forth no evidence to support his assertion that he was not paid twice for the 

same bonus or that recoupment was improper. In fact, he acknowledged at hearing that he did 

receive two direct deposits in his bank account, one for $22,663.80 and a second for $4,410.78. 

Tr. 257; Ex. R-JJ. Though these numbers align with FMBI’s position, Tartaglia seems to believe 

that the first disbursement was for wages only and the second was for a bonus. See Tr. 257.

On November 14, 2019, the parties returned to the arbitrator who issued the July 2018 

reinstatement award to resolve this double payment issue and address the misunderstanding 

between the parties about the implementation of the award. Tr. 437–39; Resp. Br. at 5. On 

January 16, 2020, the arbitrator issued a decision upholding FMBI’s calculated remedy and 

finding that Tartaglia was double-paid his bonus. Ex. R-DD; Tr. 439; Resp. Br. at 5. 

C. Tartaglia’s Complaints to MSHA

The parties agree that Tartaglia filed a discrimination complaint with MSHA on or about

March 20, 2019. Jt. Stip. 5. The filing of that complaint marks the inception of this case. In that 

document, Tartaglia alleged that he was being discriminated against by FMBI because the 

company was “still blaming” him for an incident that took place in October 2017, the payroll 

department was “wrongfully taking monies” from him, and company housing was “wrongfully 

taking monies” from his payroll. Ex. R-A. The complaint also made generic references to 

“criminal activity” and “interference in the work place.” Id.

The parties further stipulated at hearing that Tartaglia called MSHA’s hotline on 

November 20, 2018, four months before he submitted the March 20, 2019 complaint. Jt. Stip. 7. 

Tartaglia produced the MSHA Escalation Report documenting this hotline call in order to show 

that “the complaint was filed in a timely manner.” Tr. 497. The report states that the caller, 

Tartaglia, called to report retaliation for going to court regarding safety issues he reported to 

MSHA. Ex. C-3. It notes that Tartaglia stated that the case was closed with a settlement and that 
–8–

FMBI was now taking money out of his paychecks and that he wanted an MSHA inspector to 

contact him. Id. No further evidence relating to this hotline complaint was introduced, so it 

remains unclear whether MSHA took any steps to investigate as Tartaglia requested on the call. 

D. April 11, 2019 Disciplinary Action

At the time of his discharge by FMBI in October 2017, Tartaglia was classified as a 

Truck Driver I and had just successfully bid for the position of Shovel Operator I, though he had 

not yet started training for the shovel operator position. Tr. 235–37, 276; Ex. R-Y. Tartaglia 

was then reinstated pursuant to the July 2018 arbitration decision, and physically returned to 

work in August 2018. Tr. 410; Resp. Br. at 5.

Upon his return to work, Tartaglia resumed his previous position. He was retrained on a 

piece of equipment called a rubber tire dozer (RTD), which is one skill required for the Shovel 

Operator I position. Tr. 276, 370. Usually, miners progress from haul trucks to RTDs to 

shovels. Tr. 93, 414. Crucially, however, RTD is not a standalone position: RTDs support the 

shovel and are typically operated by haul truck drivers who have completed necessary RTD 

training. Tr. 92–93, 414–15; Ex. R-W. Tartaglia had operated an RTD prior to his termination, 

and completed task training in October 2018 to get requalified on it when he came back to work. 

Tr. 276. 

Because RTD is not a standalone position, and since Tartaglia had bid successfully for 

the shovel position, he was then due to move on to shovel training after getting requalified on the

RTD. Tr. 276, 373. He began Shovel Operator I training in December 2018, but quickly 

discontinued it because he felt there were too many ongoing issues with FMBI. Tr. 238, 276, 

418–19. He was uncomfortable with continuing the training at that time. Tr. 203, 238. 

Human resources generalist Fendrich, mine supervisor Steve Rusinski, and senior 

supervisor Tommy O’Neill all asked Tartaglia on various occasions whether he wanted to 

complete shovel operator training. Tr. 277, 417; Exs. R-K, R-L, R-M. Tartaglia testified that he 

wanted to continue operating a RTD, and he was surprised when the company told him that RTD 

operator was not a standalone position. Tr. 203, see Tr. 291–96. FMBI had another shovel 

coming online in 2019, and thus had a business need for more shovel operators. Tr. 412; Exs. RJ, R-K, R-L; Resp. Br. at 5–6.

On February 6, 2019, Rusinski had a conversation with Tartaglia about the shovel 

training. Ex. R-J. He told Tartaglia that the company needed to train someone on the shovel, so 

Tartaglia had to either begin training or give the company the go-ahead to train someone else. 

Tr. 277; Ex. R-J. Tartaglia told Rusinski that the company could go ahead with training 

someone else until he was done with his issues with FMBI. Tr. 279. Rusinski collected a 

written statement from Tartaglia to this effect. Ex. R-LL. Rusinski also asked Tartaglia to let 

him know if he wanted to run an RTD or a haul truck, and, according to Rusinski, Tartaglia 

communicated that he wanted to do both. Ex. R-J; Tr. 279–80.

On February 22, 2019, Fendrich and O’Neill had a conversation with Tartaglia during

which O’Neill informed Tartaglia that the company needed a final answer from him regarding 

whether he wanted to move forward with his shovel operator bid or go back to his previous 

classification as a truck driver. Tr. 418–19; Exs. R-K, R-L. During that conversation, Tartaglia

was presented with the two unambiguous options, but seemed unwilling to definitively select 
–9–

one. See Ex. R-L. He told O’Neill, as he had previously told Rusinski, that the company could 

train someone else on the shovel because he “didn’t have time for any training.” Tr. 419; Exs.

R-J, R-L. Tartaglia seemed to think that someone could be trained on the shovel without 

Tartaglia losing his successful bid, but O’Neill informed him that that was not an option. See Ex. 

R-K. O’Neill told Tartaglia that he would be requalified on a truck and classified as a Truck 

Driver I and that he could re-apply for future shovel positions. Id. Fendrich then stated his 

belief that the next truck training class was scheduled to begin on April 1, 2019. Ex. R-L.

One month later, on March 22, 2019, Fendrich had another conversation with Tartaglia 

about truck training. Tr. 423. That day, Tartaglia was given a letter signed by O’Neill which 

memorialized the February 22, 2019 conversation and again presented Tartaglia with the two 

options. Ex. R-M. It communicated that the company “needs all employees in the Shovel 

Operator I position to complete their training promptly.” Id. The letter clarified that it was 

Tartaglia’s “final opportunity” to elect one of two options:

(1) You will begin the shovel operator training no later than April 9, 2019 and 

complete such training within nine weeks. If you do not timely complete the 

training, you will receive a lateral transfer back to the position of Truck Driver I 

(no reduction in pay) and be required to take the next scheduled training

necessary to requalify you on a truck and complete such training within six weeks 

of starting it.

(2) You will receive a lateral transfer back to the position of Truck Driver I (with 

no reduction in pay) and be required to complete any training necessary to be 

requalified on a truck within six weeks of such transfer. Of course, as we 

discussed (assuming you're qualified), you may apply for any shovel operator bids 

that arise in the future.

Id. The letter directed Tartaglia to provide an “unqualified decision . . . in writing” to O’Neill or 

Fendrich by 5:00 p.m. on March 31, 2019. Id. It further notified Tartaglia that, if he failed to 

submit a decision on time, the company would assume that he selected the second option for a 

lateral transfer back to Truck Driver I. Id.

Tartaglia failed to submit a decision before the 5:00 p.m. deadline on March 31, 2019. At 

6:39 p.m., he emailed Fendrich to declare that he was “not up for any training” and that he was 

“on the Rubber Tire Dozer and will stay there until everything is resolved . . . Final Response.” 

Ex. R-N.

According to a letter from O’Neill, Tartaglia was instructed at the end of his shift on 

March 31, 2019 to attend haul truck training, and Tartaglia stated at the time that he would not 

attend the training. Ex. R-T. On April 1, 2019, Tartaglia reported to work and was again

notified that he was scheduled to begin haul truck training that day. Tr. 280–81. Tartaglia then

informed Rusinski that he was not going to attend the training because he had a lot going on with 

the company. Ex. R-Q. Rusinski understood Tartaglia’s response to be a refusal to attend the 

training, and accordingly collected written statements from Tartaglia. Tr. 280; Exs. R-O, R-P. 

In one of the statements, Tartaglia stated that he had “made it clear to David Fendrich” that he 

was “not up for no training” because he had “hearing, deposition, investigations coming up.” 

Ex. R-O. In the other, Tartaglia claimed that the actions FMBI was taking were retaliatory and 

noted that “[t]his will be reported as retaliation.” Ex. R-P. 
–10–

Based on his testimony at hearing, it appears that Tartaglia believes he did not need to 

attend the training because he had upcoming days off that had been approved by management.

See Tr. 308–10. However, Tartaglia did not put forth any evidence to show that the training 

would have prevented him from taking his scheduled time off.

Following Tartaglia’s refusal to go to the scheduled training, Rusinski placed Tartaglia 

on investigatory leave with pay (IWP). Tr. 285; Ex. R–R. On the top of the IWP form, Tartaglia 

wrote “This is under protest” and “This is not a refusal as well they are aware.” Ex. R-R. 

Rusinski stated at hearing that Tartaglia “grabbed the paper and wrote that on there and gave it 

back to me.” Tr. 285. Other than this statement, the evidence and testimony support that the 

haul truck training was a work assignment and that Tartaglia was unwilling to attend the training 

that day. See Tr. 280–82, 429; Exs. R-O, R-P, R-Q, R-T.

After an investigation, FMBI made a decision to issue a disciplinary action to Tartaglia. 

Tr. 432–33. On April 11, 2019, Tartaglia was issued a “final written warning” for his refusal to 

attend the April 1, 2019 training. Tr. 433; Ex. R-S. In both the written warning and in a letter 

issued by O’Neill the same day, the evolution of the problem was recounted. Exs. R-S, R-T. In 

the letter, O’Neill explained to Tartaglia that

the Company has a business need for you, in your position of Truck Driver I, to 

complete your truck driver training and be certified to operate a Haul Truck. You 

will again be enrolled in the next available Truck Driver training class, to begin 

no later than May 20, 2019, and expected to attend this assigned work. Per the 

Company's Guiding Principles, for which you signed the most recent certification 

form on 12/19/2018, “Refusal to do assigned work . . .” is an action considered 

serious in nature and may result in discipline, up to and including termination.

Ex. R-T.

IV. DISPOSITION

Tartaglia alleges that FMBI violated the settlement agreement entered into in WEST 

2018-0362-DM. He further asserts that FMBI violated the Mine Act when it recovered a 

duplicate bonus payment and when it disciplined him on April 11, 2019. FMBI contends that it 

did not violate the settlement agreement. Respondent also claims that the issue of whether the

recovery of the duplicate bonus payment violated the Mine Act is time-barred. FMBI further 

maintains that neither the recovery of the duplicate payment nor the April 11, 2019 discipline

were adverse actions motivated by protected activity under the Mine Act. 

Below, I address the five issues enumerated and agreed to by the parties at hearing.

A. Neither party violated the settlement agreement reached in WEST 2018-0362-DM.

FMBI did not allege at any point in these proceedings that Tartaglia violated the 

settlement agreement. Accordingly, my analysis on this issue is limited to whether FMBI 

violated the agreement as alleged by Tartaglia in his filings and at hearing.

Tartaglia does not believe that FMBI erroneously disbursed the same bonus to him twice. 

Tr. 204, 225, 256, 257, 266. Rather, he believes that money was taken out of his paychecks in 
–11–

order to source the money for the settlement check FMBI owed him. See Tr. 201, 224. This

assertion is without support. FMBI has shown that it did in fact pay Tartaglia twice for a bonus 

and that the amount withdrawn from Tartaglia’s pay was equal to the amount mistakenly paid. 

Moreover, FMBI sent the notice regarding the erroneous double payment and Tartaglia’s options 

for returning the excess money to him on September 17, 2018, before the hearing in the first case

and thus before the settlement was reached. Ex. R-HH; Tr. 258. Though the timing may be 

suspect to Tartaglia, the evidence makes clear that the recovery of the duplicate bonus is

unrelated to the settlement. 

Per the terms of the settlement reached orally at hearing in Tartaglia’s prior case, FMBI 

was obligated to pay Tartaglia a cash payment for housing expenses and to provide a neutral 

reference from a Freeport-McMoRan employee outside of FMBI. As explained above, FMBI 

sent a settlement check to Tartaglia on March 5, 2019. Ex. R-I. After refusing to cash that check 

for over a year, Tartaglia requested a replacement check following the hearing in this case. 

Resp. Br. at 7, Attach. A. One was provided to him, and he posted it on April 16, 2020. Resp. 

Br. at 7, Attach. B, Attach. F. Tartaglia made no allegations and put forth no evidence 

concerning FMBI’s other obligation under the settlement—to provide him a neutral reference. 

Human resources manager Kessler testified that to her knowledge Tartaglia has not requested a 

reference from the company. Tr. 329.

FMBI has not claimed that Tartaglia violated the settlement agreement, and Tartaglia has 

put forth no evidence to suggest that FMBI failed to fulfill its obligations. Accordingly, based 

upon the evidence and testimony presented at hearing, I find that neither party violated the 

settlement reached in WEST 2018-0362-DM. 

B. The issue regarding recovery of bonus money erroneously paid twice to Tartaglia is 

not time-barred.

Section 105(c)(2) of the Mine Act provides an avenue through which miners who believe 

they have been discriminated against may file a complaint with the Secretary alleging such 

discrimination. 30 U.S.C. § 815(c)(2). Complaints are to be filed “within 60 days after such 

violation occurs.” Id. In this case, Tartaglia filed his section 105(c) complaint with MSHA on 

March 20, 2019. Jt. Stip. 5. This was some six months after FMBI’s September 17, 2018 notice 

informing him that he had been erroneously paid twice for a bonus. Ex. R-HH. It was also more 

than 60 days after December 28, 2018, which was the date FMBI completed its recoupment of 

the erroneous payment. Ex. R-II. Thus, FMBI argues that the double bonus recovery issue is 

time-barred under the Mine Act. Resp. Br. at 16–19.

The 60-day time limit is intended to avoid stale claims, but the Commission has held that 

“a miner’s late filing may be excused on the basis of ‘justifiable circumstances.’” David Hollis 

v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984) (citation omitted). In urging the court 

to find that this claim is time-barred, Respondent draws comparisons to the Commission’s 

decision in Hollis v. Consolidation Coal Co. Resp. Br. at 17–18. In that case, the complainant, 

Hollis, waited more than four months after his discharge to file a complaint with the Secretary. 

Hollis, 6 FMSHRC at 24. The judge did not find Hollis’ claimed ignorance of his rights to be 

credible, since Hollis was chairman of his union’s safety committee, had filed numerous safety 

complaints in the past, and had deliberately chosen to seek other avenues of relief during the 60-

day period following his discharge. Id.
–12–

The upshot of Hollis is that “[t]imeliness questions must be resolved on a case-by-case 

basis, taking into account the unique circumstances of each situation.” Id. While Tartaglia has 

previously filed a discrimination complaint under section 105(c), the facts of this case do not 

warrant a comparison to Hollis. Undoubtedly, Tartaglia missed the 60-day filing window by a 

substantial margin when considering he filed his complaint on March 20, 2019. However, 

Tartaglia made a call to the MSHA hotline on November 20, 2018, approximately 60 days after 

he was notified of the duplicate payment. Jt. Stip. 7; Ex. C-3. MSHA’s documentation of that 

call states that Tartaglia called to “report retaliation” and assert that “the Mine is taking money 

out of his paychecks.” Ex. C-3. It also notes that Tartaglia requested that an inspector get in 

contact with him. Id. 

At hearing, in response to the court’s admission of the MSHA hotline call, FMBI pointed 

to its Freedom of Information Act request response from MSHA, which indicates that Tartaglia’s

complaint was received by MSHA on March 27, 2019 and does not mention any investigation 

arising out of the November call. Tr. 496–97; Ex. R-KK. Respondent argues that the hotline 

call did not properly conform to the section 105(c) discrimination complaint process. See Resp. 

Br. at 16–19. I am unwilling to hold Tartaglia to the strict standard Respondent seems to urge

given the absence of evidence regarding MSHA’s actions in processing the hotline complaint. 

While Tartaglia has some experience with filing section 105(c) complaints, his familiarity with 

the process does not rise to the level shown in Hollis. FMBI has failed to establish that Tartaglia 

knew that a hotline call was an insufficient way to lodge a discrimination complaint with MSHA, 

and the court will not assume this fact. This is especially true with regard to both the time 

requirements for perfecting his discrimination complaint and his misunderstanding that his 

hotline complaint met minimum filing requirements. 

Accordingly, I find the November 20, 2018 MSHA hotline call to be a “justifiable 

circumstance” and excuse Tartaglia’s late filing. The merits of the issue of the duplicate bonus

recovery are analyzed below. 

C. The recovery of the duplicate bonus payment was not an adverse action motivated 

by protected activity under the Mine Act.

Tartaglia asserts that FMBI did not pay him twice for the same bonus. Tr. 204, 225, 256, 

257, 266. As discussed above, he believes that the withdrawals made from his paychecks were 

utilized to pay his settlement. See Tr. 201, 224. The evidence put forth by FMBI clearly shows 

that this is not the case, and that he was erroneously paid the same bonus twice. Exs. R-EE, RFF, R-GG, R-HH. 

Having established that the duplicate payment occurred, the issue here is whether FMBI 

violated the Mine Act in recovering the erroneous payment. For the reasons set forth below, I 

find that FMBI did not violate the Mine Act in recovering the money. 

Section 105(c)(1) of the Mine Act provides that a miner shall not be discharged or 

otherwise discriminated against because they have made a complaint regarding an alleged safety 

or health violation. 30 U.S.C. § 815(c)(1). Under the traditional Pasula-Robinette framework, 

the Commission has held that a miner alleging discrimination establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient to support a conclusion that (1) the 

complainant engaged in protected activity, and (2) the adverse action complained of was 

motivated in any part by the protected activity. Jayson Turner v. Nat'l Cement Co., 33 FMSHRC 
–13–

1059, 1064 (May 2011); Driessen v. Nev. Goldfields, 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. 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 805, 817–18 (Apr. 1981).

If a miner establishes a prima facie case, the operator may rebut that case “by showing 

either that no protected activity occurred or that the adverse action was in no part motivated by 

the protected activity.” Turner, 33 FMSHRC at 1064. If the operator cannot rebut the prima 

facie case, it may nevertheless defend affirmatively by proving by a preponderance of the 

evidence that, although part of its motivation was unlawful, the adverse action was also 

motivated by the miner’s unprotected activity and it would have taken the adverse action against 

the miner for the unprotected activity alone. Id.; Pasula, 2 FMSHRC at 2799–2800.

1. Protected Activity

Complainants bear the burden of establishing protected activity. Pasula, 2 FMSHRC at 

2799–2800; Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914, 

1920–21 (2016). A miner has engaged in protected activity if they (1) have “filed or made a 

complaint under or related to this Act, including a complaint . . . of an alleged danger or safety or 

health violation;” (2) are “the subject of medical evaluations and potential transfer under a 

standard published pursuant to section 101;” (3) have “instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is about to testify in any such 

proceeding;” or (4) have “exercised on behalf of himself or others . . .any statutory right afforded

by this Act.” 30 U.S.C. § 815(c)(1).

Tartaglia has engaged in numerous instances of protected activity. In WEST 2018-0362-

DM, he filed a complaint which initiated proceedings under the Mine Act and culminated in a 

hearing on September 19–20, 2018 with a settlement reached at that hearing. In further 

proceedings in that case, the matter was remanded back to me by the Commission. I issued a 

decision upholding the settlement on February 11, 2019. Tartaglia’s November 20, 2018 hotline 

call and his March 20, 2019 MSHA complaint filed in this matter also constitute protected 

activity. Accordingly, Tartaglia has satisfied this element of the prima facie case.

2. Adverse Action Motivated by Protected Activity

The Commission has defined “adverse action” as “an action of commission or omission 

by the operator subjecting the affected miner to discipline or a detriment in his employment 

relationship.” Sec’y on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930 

(Aug. 2012) (citations omitted). The question of whether an employer’s action qualifies as 

“adverse” is thus decided on a case by case basis. Sec’y of Labor ex. rel. Jenkins v. Hecla-Day 

Mines Corp., 6 FMSHRC 1842, 1848 n.2 (Aug. 1984).

Tartaglia has failed to show how the recovery of a bonus payment FMBI erroneously 

disbursed to him twice is an adverse action motivated by his protected activity. He proffered no 

evidence suggesting that the bonus payment subjected him to detriment in his employment 

relationship. For its part, FMBI has shown precisely how the error was made and how it went 

about correcting the error.
–14–

Imprudent as it was, I find that the double payment was simply an accounting error, a 

mistake made by the people in charge of Tartaglia’s economic reinstatement. It does not rise to 

the level of an adverse employment action motivated in any part by Tartaglia’s protected 

activity. Consequently, Tartaglia is unable to meet the elements of a prima facie claim of 

discrimination on the bonus recovery issue. 

D. The April 11, 2019 discipline was not an adverse action motivated by protected 

activity under the Mine Act. 

Tartaglia’s second claim of discrimination involves the final written warning he was 

issued on April 11, 2019 for his refusal to attend truck training on April 1, 2019. Though this 

warning was issued several weeks after Tartaglia submitted his March 20, 2019 complaint to 

MSHA, it arose during the pendency of MSHA’s investigation and was accepted as an issue in 

these proceedings. For the reasons that follow, I find that FMBI did not violate the Mine Act in 

issuing Tartaglia a final written warning.

1. Prima Facie Case

It bears repeating that to make out a prima facie case of discrimination, a complainant 

need only present “evidence sufficient to support a conclusion that the individual engaged in 

protected activity and that the adverse action complained of was motivated in any part by that 

activity.” Driessen, 20 FMSHRC at 328 (emphasis added). “This burden is lower than the 

ultimate burden of persuasion, which the complainant must sustain as to the overall question of 

whether section 105(c)(1) has been violated.” Turner, 33 FMSHRC at 1065. For the reasons 

that follow, I find that Tartaglia has met this initial, low burden and established a prima facie 

case of discrimination.

a. Protected Activity

FMBI argues that this claim does not involve protected activity and insists that 

Tartaglia’s refusal to do the training is not protected under the Mine Act. Resp. Br. at 20.

However, as noted above, Tartaglia engaged in numerous instances of protected activity between 

September 2018 and March 2019, including a call and complaint to MSHA and the engagement 

in the 105(c) process before this court. He has satisfied the protected activity element of the

prima facie discrimination case. 

b. Adverse Action Motivated by Protected Activity

Regarding this issue, Tartaglia has also shown that he was subject to an adverse action. 

The discipline he received on April 11, 2019 fits plainly within the Commission’s definition of 

adverse action as “an action of commission or omission by the operator subjecting the affected 

minor to discipline or a detriment in his employment relationship.” Pendley, 34 FMSHRC at 

1930 (citations omitted). 

In addition to protected activity and an adverse action, the prima facie case requires the 

Complainant to demonstrate that there is evidence sufficient to support an inference of a causal 

nexus—that is, that the protected activity motivated Respondent to take the adverse action. 
–15–

A miner need not provide direct evidence of an operator’s discriminatory motive, but 

may provide “circumstantial evidence . . . and reasonable inferences drawn therefrom may be 

used to sustain a prima facie case.” Turner, 33 FMSHRC at 1066–67 (quoting Bradley v. Belva 

Coal Co., 4 FMSHRC 982, 992 (June 1982)). In evaluating whether a causal connection exists 

between the protected activity and the adverse action, the Commission looks to four factors: “(1) 

the mine operator's knowledge of the protected activity; (2) the mine operator's hostility or 

‘animus’ toward the protected activity; (3) the timing of the adverse action in relation to the 

protected activity; and (4) the mine operator's disparate treatment of the miner.” Cumberland 

River Coal Co., 712 F.3d at 318; see also Sec'y of Labor on behalf of Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508, 2510–12 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 

1983). I will examine these factors in turn.

i. Knowledge of Protected Activity

 Tartaglia’s engagement of the 105(c) process in his prior case before this court, his call 

to MSHA in November 2018, and his March 2019 complaint are all sufficient to establish that he 

engaged in protected activity. FMBI does not dispute these instances of protected activity. 

While I acknowledge that FMBI was unaware of the November 2018 MSHA hotline call for 

some time, I find that, all told, Respondent had knowledge of Tartaglia’s protected activity.

ii. Animus or Hostility Toward the Protected Activity

Throughout the hearing, Tartaglia suggested that FMBI scheduled him for truck training 

in order to interfere with his upcoming, approved days off which he was taking in order to 

engage in depositions and other protected activity related to his claims against FMBI. See, e.g.

Tr. 465, 474. However, Tartaglia did not put forth any evidence to demonstrate that the training 

schedule would interfere with his planned activities outside of work. Tartaglia’s wholly 

unsupported allegations are insufficient to support an inference that FMBI had any animus or 

hostility toward his protected activity as it relates to his scheduled truck driver training.

iii. Timing

Tartaglia was disciplined on April 11, 2019, just a few weeks after he submitted his 

March 20, 2019 complaint to MSHA. Ex. R-S; Jt. Stip. 5. The Commission does not apply 

“hard and fast criteria in determining coincidence in time between protected activity and 

subsequent adverse action when assessing an illegal motive.” Hicks v. Cobra Mining, Inc., 13 

FMSHRC 523, 531 (Apr. 1991). Given the objectively short amount of time between this 

instance of protected activity and the adverse action, I find that a coincidence in time exists in 

Tartaglia’s case.

iv. Disparate Treatment

Tartaglia has not shown that he was subject to disparate treatment. “Typical forms of 

disparate treatment are encountered where employees guilty of the same, or more serious, 

offenses than the alleged discriminatee escape the disciplinary fate which befalls the latter.” 

Chacon, 3 FMSHRC at 2512. It is unclear whether any other miners employed by FMBI have 

failed to attend training like Tartaglia. However, the evidence overwhelmingly shows that 

Tartaglia was given numerous opportunities to not only complete his required training but to 

choose which position he desired to hold and be trained for. Tr. 277, 417–19, 423; Exs. R-J, R-
–16–

K, R-L, R-M, R-LL. Tartaglia’s refusal to attend assigned training constitutes a “refusal to do 

assigned work,” which under Freeport-McMoRan’s “Guiding Principles” is a serious action 

which “may result in immediate discharge.” Ex. R-Z, p. 23–24; Tr. 39, 408–09. The final 

written warning was less severe than the termination expressly permitted by the Guiding 

Principles for this type of infraction. I find that Tartaglia was not subject to disparate treatment.

v. Conclusion

Because the facts and evidence put forth in this case satisfy the knowledge and timing 

factors, and bearing in mind that the prima facie burden is minimal, I find that Tartaglia has put 

forth evidence that “could support an inference” that the adverse action was motivated, at least in 

part, by his protected activity. Turner, 33 FMSHRC at 1066 (citation omitted). As discussed

below, however, I find that FMBI has successfully rebutted Tartaglia’s prima facie case.

2. Rebuttal

The operator may rebut the miner's prima facie case by showing either that no protected 

activity occurred or that the adverse action was in no part motivated by the protected activity. Id.

at 1064. Having already rejected FMBI’s argument that no protected activity occurred, I turn to 

its motivation behind the adverse action. 

The evidence in this case is clear. FMBI had a legitimate business need for a shovel 

operator, Tartaglia had an outstanding bid for that position, and Tartaglia was notified numerous 

times of the company’s need for him to be trained on the equipment. Tr. 418, 236–37; Exs. RM, R-T. Tartaglia started shovel training, discontinued it, and was asked several times whether 

he would be availing himself of his bid. Tr. 238, Exs. R-L, R-K, R-M. Tartaglia wished to 

continue operating the RTD, and was surprised to learn it was not a standalone position. See Tr. 

203, 292. Tartaglia was then given a choice between Truck Driver I and Shovel Operator I. Ex. 

R-M. Both positions required Tartaglia to attend training and both paid the same amount. Id. 

FMBI went to great lengths to allow Tartaglia the choice of which position he wanted to 

hold at the mine, and eventually presented the ultimatum with a deadline. Id. Tartaglia was 

informed that failure to make a timely decision would result in FMBI proceeding under the 

assumption that he wished to give up his bid and return to the truck driver position he had 

previously held. Id. He failed to make a selection by the deadline, and thus it should have been 

no surprise to Tartaglia that FMBI enrolled him in the next scheduled truck driver training. 

Though he has shown coincidence in time between the protected activity and adverse 

action and FMBI’s knowledge of his protected activity, Tartaglia has failed to sustain the 

ultimate burden of persuasion as to whether section 105(c) has been violated. FMBI has 

thoroughly established that Tartaglia’s discipline was issued because of his refusal to do assigned 

work. The final warning was issued after Tartaglia was instructed numerous times over several 

months that he needed to attend training, either for the shovel operator position or for his return 

to a truck driver role. Because Tartaglia failed to proffer any evidence that the decision to 

discipline him was motivated by his protected activity, I find that FMBI has successfully 

rebutted Tartaglia’s prima facie case. 
–17–

E. FMBI has not violated section 105(c), so no remedies are available to Tartaglia. 

The final issue enumerated for decision in this case is what remedies are available to 

Tartaglia if a violation of section 105(c) were found. Because Tartaglia has failed to establish

that FMBI either breached the settlement agreement or improperly discriminated against him, I 

need not reach the remedy issue.

V. ORDER

Accordingly, it is ORDERED that the complaint of discrimination brought by Peter

Tartaglia, Jr. is hereby DISMISSED.

David P. Simonton

Administrative Law Judge

Distribution: (Email3

) 

Pete Tartaglia, Jr., petetartagliajr.88@gmail.com

Laura E. Beverage, Jackson Kelly PLLC, lbeverage@jacksonkelly.com

Karl F. Kumli, Jackson Kelly PLLC, karl.kumli@jacksonkelly.com

 3 For the foreseeable future, Federal Mine Safety and Health Review Commission (FMSHRC) 

notices, decisions, and orders will be sent only through electronic mail. Because FMSHRC will 

not be monitoring incoming physical mail or faxes, parties are encouraged to submit all filings 

through the agency’s electronic filing system. If you are not able to file through our electronic 

filing system, please send an email copy and we will file it for you.