MAY 2003

THERE WERE NO COMMISSION DECISIONS OR ORDERS

ADMINISTRATIVE LAW JUDGE DECISIONS

05-12-2003 James Womack v. Graymont Western US Inc.
(This is not a final decision)
05-13-2003 Sec. Labor on behalf of Charles Scott Howard
v. Panther Mining, LLC, Cave Spur, LLC, et al.
05-28-2003 LaFarge Building Chemical Corporation ·
05-30-2003 Sec. Labor on behalf of John G. Muehlenbeck
v. Concrete Aggregates, LLC
05-30-2003 Big Buck Asphalt

WEST 2002-138-DM

Pg.235

KENT 2003-245.=D
CENT 2003-173-RM

Pg. 266
Pg. 268

CENT 2002-230-DM
CENT 2002-187-M

Pg.270
Pg.286

WEST 2001-420-RM

Pg.289

ADMINISTRATIVE LAW JUDGE ORDERS

05-30-2003 CDK Contracting Company

i

MAY

2003

No cases were filed in which Review was granted during the month of May

Review was denied in the following cases during the month of April:

Arnold J. Jistel v. Trinity Materials, Inc., Docket No. CENT 2002-150-DM. (Judge Zielinski,
March 27, 2003)
Thomas P. Dye, II v. Mineral Recovery Specialists, Inc., Docket No. WEST 2002-408-DM.
(Judge Manning, April 22, 2003)

ii

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

May 12, 2003
JAMES WOMACK,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. WEST 2002-138-DM
WEMD 01-17

GRAYMONT WESTERN US INC.,
Respondent

Tacoma Plant
Mine ID 45-03290

DECISION ON LIABILITY
Appearances:

Jam es Womack, prose, Tacoma, Washington, for the Complainant;
Robert Leinwand, Esq., Stole Rives, LLP, Portland, Oregon, for the
Respondent.

Before:

Judge Feldman

This case is before me based on a discrimination complaint filed on December 14, 2001,
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) (1994). The complaint was filed by James Womack against Graymont
Western US Inc. ("Graymont") previously known as Continental Lime. 1 (Rep. Br. at p.5, n.4).
Section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l), provides, in pertinent part:
No person shall discharge or in any manner discriminate against . . . any miner ...
because such miner . . . has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's agent . .. of an alleged
danger or safety or health violation in a coal or other mine ... or because such miner . ..
instituted any proceeding under or related to this Act ... .

1

Womack's complaint which serves as the jurisdictional basis for this matter was filed
with the Secretary of Labor (the "Secretary") on August 29, 2001, in accordance with section
105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). Womack's complaint was investigated by the Mine
Safety and Health Administration (MSHA). On November 30, 2001, MSHA advised Womack
that its investigation did not disclose any section 105(c) violations. On December 14, 2001,
Womack filed his discrimination complaint with this Commission which is the subject of this
proceeding.
235

(Emphasis added). Section 105(c) of the Act seeks to protect miners from not only common
forms of discrimination, such as discharge or demotion, but also subtle forms of retribution.
Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (August 1982).
The hearing in this matter was conducted in Seattle, Washington on October 2 and
October 3, 2002. At the time of the hearing, Womack had been suspended without pay for over
one year, although he had not been terminated. (Tr. 524). Womack had been seeking
reinstatement since July 18, 2002. The record was left open to permit Graymont to respond to
Womack's reinstatement request. Graymont terminated Womack on October 22, 2002.
The record was closed on January 17, 2003. The parties filed post-hearing briefs and Womack
filed a reply brief.
Womack asserts that he 1s the victim of a series of adverse actions motivated by his
protected activity: two reprimand letters, a five day suspension folJowing his union grievance of
the reprimands, and a suspension without pay beginning September 21, 2001. These disciplinary
actions were investigated by MSHA during the course of its consideration ofWomack's
discrimination complaint.
Womack now contends that Graymont's post-hearing decision to terminate his
employment is in retaliation for his protected activity. Womack's October 22, 2002, termination
occurred after MSHA completed its discrimination investigation, and after Womack filed his
December 14, 2001, complaint with this Commission. However, as discussed herein, Womack
may amend his discrimination complaint to include his termination. As such, his termination is a
proper subject of this section 105(c)(3) _proceeding.

I. Statement of the Case
Womack sustained a back injury while working as a kiln operator in July and
August 1999. Graymont accommodated Womack by permitting him to perform light duty until
September 21, 2001, when it concluded Womack's medication precluded him from safely
performing his job. At that time, Graymont placed Womack on extended leave without pay.
Womack was awarded workers compensation from the State of Washington Department of
Labor and Industries (L&I) as of September 21, 2001.
Womack's eligibility for L&I compensation ended on July 8, 2002, after L&I learned
Womack was no longer taking medication. At the hea1ing, Graymont stated that it was unable to
determine if Womack was capable of returning to his job because it had not received adequate
information from Womack's physician. (Tr. 524-25). The record was left open for Womack to
provide Graymont with additional information. Graymont received a statement from Womack' s
physician on October 7, 2002. (Memorandum of Gary Henriksen, M.D., Oct. 7, 2002). 2

2

Both parties are in possession of the post-hearing documentation concerning Womack's
termination that was proffered before the record was closed. Consequently, these documents will
be identified by author and date but not as exhibits of either party.
236

On October 18, 2002, Graymont concluded that Womack could not perform the essential
elements of his kiln operator job with or without a reasonable accommodation. Consequently,
Womack's employment was terminated effective October 22, 2002. (Letter from Dennis Wakin
to James Womack, Oct. 18, 2002). The record was closed on January 17, 2003, after Womack
and Graymont furnished additional medical and L&I records in response to a November 21,
2002, Order the parties to submit additional documentation. 3 Prior to closing the record, during a
January 15, 2003, telephone conference, the parties stated they did not desire to present
additional testimony.
For the reasons discussed below, Womack's discrimination complaint with respect to his
disciplinary letters, his five day suspension and his extended leave is denied. However,
the evidence reflect's Graymont's decision to terminate Womack, rather than provide him with a
reasonable accommodation, as it had done in the past, was motivated, at least in part, by
Womack's protected activity. Accordingly, Womack's discrimination complaint with respect to
Graymont's refusal to reinstate him shall be granted.

II. Preliminary Findings Of Fact
a. Background
Graymont's Tacoma, Washington facility produces quick lime, also known as calcium
oxide. Limestone is transported to the plant on a barge from Canada where it is off-loaded onto
conveyor belts and separated. The stone is then screened and stockpiled. The material ultimately
is conveyed into a coal-fired rotary kiln that reaches approximately 1,840 degrees Fahrenheit.
At that temperature, lime loses its calcium dioxide and becomes calcium oxide. The finished
lime falls through bars onto a plate below called the "grizzly" where it is cooled and then
conveyed to product silos. It is later removed from the silos, screened, and prepared to
customer's specifications. Quick lime is used in both the pulp and paper, and steel industries.
Graymont' s facility is operated 24 hours per day, seven days per week. The work
day is divided into three eight hour shifts: 6:00 a.m.-2:00 p.m.; 2:00 p.m.-10:00 p.m.; and
10:00 p.m.-6:00 a.m. Personnel work on rotating shifts each week. There are approximately
35 employees assigned to the Tacoma plant, nine of which are assigned to work in the kiln
department. These nine employees consist of four kiln ope~ators, four stonemen, and one
bagman. There is a kiln operator and stoneman on each of the three shifts. The extra kiln
operator and stoneman fill in for the teams of kiln operators and stonemen on their days off.
There is one bagman who works only the 6:00 a.m.-2:00 p.m. shift. The remaining employees
work in and around the crushing and screening plant.

3

The parties agreed that the documentation furnished in response to the November 21,
2002, Order shall be admitted in evidence. Consequently, these documents will only be
identified by author and date as both parties posses these documents.
237

The kiln operator is responsible for monitoring the kiln from a control room. The kiln
operator is seated during a portion of each shift, depending on the frequency of problems arising
in the kiln. Monitoring consists of ensuring the coal is properly burned to maintain the correct
kiln temperature, and periodically testing the lime product. Working around the outside of the
kiln exposes the kiln operator to extreme temperatures reaching as high as 800 degrees
Fahrenheit.
The kiln operator's job duties include raking out (pushing or pulling) large chunks of
unburned coal ash, called "clinkers" or "ash balls," that can weigh more than 200 pounds. The
ash balls are removed by pushing or pulling them with long rods, or pokers, that are passed
through an opening in the hot furnace. Clearing the kiln of ash balls requires crouching, pulling,
pushing and bending. The job also occasionally requires reaching above the head to loosen
lumps of coal from the silo which feeds the coal to the kiln. Finally, the kiln operator is required
to lift approximately 80 pounds or more occasionally, 40 pound$ frequently, and 20 pounds
continuously.4 (Job Analysis by Catherine Parker, CRC, Oct. 9, 2002).
The stoneman, also known as the kiln operator's assistant, feeds limestone into the kiln,
and assists the kiln operator in cleaning and maintaining the kiln. The bagman works at the
baghouse Monday through Friday packaging the finished product.
Medical records reflect James Womack is "a very strongly-built" 54 year old.
He is 6 feet 2 inches tall and he weighs approximately 270 pounds. (Letter from William J.
Morris, M.D., to Gary Henriksen, M.D., at p.2, Mar. 12, 2001). Womack began working for
Graymont at the stacker conveyor in 1987. Thereafter, he worked in the baghouse for
approximately three years before becoming a stoneman. In 1995, Womack replaced Mike Moats
as a kiln operator after Moats left to accept other employment.

b. Womack's Au2ust 1999 MSHA Complaint
Womack sustained a lower back sprain on Monday, July 26, 1999, as a consequence
of" ... pulling large chunks of ash over a week period .... " (Comp. Ex. 1). Womack's back
injury was reported to MSHA on August 8, 1999, on an Accident, Injury and Illness Report

4

The degree of exertion required of a kiln operator varies from day to day. Estimations
regarding the maximum weight a kiln operator was required to lift, pull, or push on a given day
varied greatly throughout this proceeding. For example, there was testimony that ash balls can
weigh as much as 200 to 500 pounds. (Tr. 386). The exact weight is not material as it is
undisputed that Womack's back condition precludes him from performing the full exertional
range of activities. Nevertheless, Graymont accommodated Womack from July 1999 until
September 2001, during which time Womack worked as a kiln operator despite being on light
duty.
238

Form 7000-1 completed by Dan Hudson, a Graymont foreman. Id Immediately following his
back injury, Womack's regular days off were July 21 and July 28, 1999. Womack was on
vacation from July 29 through August 1, 1999.
Womack returned to work on August 2, 1999. At 3:00 p.m. on August 4, 1999, Womack
suffered bums to his neck, face, back and arms from exposure to heat and dust while attempting
to remove a chunk of hot ash from the side kiln door. This incident also was the subject of an
MSHA accident report completed by Hudson on August 8, 1999. (Comp. Ex. 2). At the time of
Womack's August 4, 1999, bums, Womack also reported his back condition had been
exacerbated. On April 12, 2000, L&I assigned Womack a monetary award for his bums
consisting of a residual 9% permanent skin impairment. (Letter from Dorie Laubsher, L&I
Claims Manager, to James Womack, April 12, 2000). This L&I determination denied Womack's
claim for a monetary award for his back condition. Id
Shortly after sustaining his bums, Womack contacted the local MSHA office to complain
that Graymont was not providing adequate protective clothing. MSHA responded by inspecting
Graymont's kiln facility on August 17, 1999. As a result of its inspection, MSHA issued
104(d)(l) Citation No. 7979030 citing a violation of the mandatory standard in section 56.15006,
30 C.F.R. § 56.15006. This safety standard requires protective clothing and equipment to be
worn to prevent exposure to chemical hazards or irritants. (Comp. Ex. 3). While not identifying
Womack by name, Citation No. 7979030 noted it was issued because of the bum injuries that
occurred over a two day period on August 3 and August 4, 1999. The violation was attributed to
Graymont's unwarrantable failure because Plant Manager Ron Eccles and Hudson allegedly
"allowed the employee to be placed in harm's way" despite awareness of the potential bum
hazard. 5 (Comp. Ex. 3).
In addition to the citation concerning Womack' s injuries, 104(d)(l) Order No. 7979031
was issued citing an additional violation of section 56.15006, because Roy Tucker, Womack' s
stoneman, was observed working near the kiln without wearing protective clothing despite
Graymont's knowledge ofWomack's recent bums. The violation also was attributed to
Graymont's unwarrantable failure. (Comp. Ex. 4). Womack testified that Graymont provided
kiln workers with long blue coats, protective gloves and face shields as a consequence of his
August 1999 complaint. (Tr. 90-91).

5 The term "unwarrantable failure" is taken from section 104(d) of the Act,

30 U.S.C . § 814(d), and refers to more serious conduct by an operator in connection with a
violation. In Emory Mining Corp., 9 FMSHRC 1997, 2002 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence.
239

c. The July 2001 Reprimands
On June 2, 2000, Womack wrote "I am gay'' on the hard hat of a fellow employee.
Womack testified that Tucker also participated in this "prank." Womack described his behavior
as a joke that was not intended to offend. However, Womack conceded it was a "bad joke" and
that he would never do it again. (Tr.110). Womack admitted to Hudson and Scott Mork, who
was Graymont' s production supervisor, that he had written on the hard hat. Womack apologized
to the subject employee. Although Womack was admonished by Mork, Womack was not given a
written warning at that time.
On July 20, 2000, L&I denied Womack's reconsideration of its April 12, 2000, decision
denying a monetary award for Womack' s back. (Resp. Ex. 1). Womack sought to reopen his
claim by relying on an exacerbation he reportedly suffered on August 1, 2000. (Tr. 132; Resp.
Ex. 1). An L&I claim form signed by Womack noted he suffered a sore back on August 1, 2000,
although no accident was reported. (L&I Claim # X445116, received Sept. 11, 2000). Womack
did not report to work from August 1 through August 3, 2000, on the advice of his doctor.
(Henriksen workability report, Aug. 1, 2000). Womack was cleared to return to full duty
effective August 21, 2000. (Henriksen workability report, Aug. 11, 2000). Womack's attempt to
reopen his claim for a job-related permanent partial disability rating for his back was opposed by
Graymont, and it ultimately was denied by L&I.
Womack testified that "everything went pretty much smoothly along" until he received
two letters ofreprimand in July 2001. (Tr. 95-96). Since hurting his back in July 1999, Womack
had been taking Naproxin, Daypro or Flexeril, as needed, for pain, and Hytrin for high blood
pressure. Womack asserted his medicine did not interfere with the performance of his job. In
this regard, Womack stated he did not experience any fatigue or dizziness. (Tr. 99-100, 104-05).
Mork indicated Womack was performing his regular job within his 40 pound exertional
restrictions. (Tr. 498-99).
Womack began his regular weekly shift on June 28, 2001. He worked six consecutive
days from June 28 through July 3, 2001, working 12 hour shifts the first three days, and 8 hour
shifts the next three days. Womack was scheduled to work on July 4, 2001. However, he failed
to report to work on the fourth of July holiday. Womack stated that on July 3, 2001, he told kiln
operators Howard Smith and Duane Givens that "[he] didn't think [he] would be in on the fourth
of July." (Tr. 122). Womack testified he did not tell Smith or Givens why he decided he was not
coming to work. (Tr. 122).
Womack explained, unconvincingly, "[b]ecause my back was flared up and it was kind of
sore, so I figured, you know, what the heck, I'll just take the fourth of July off." (Tr. 122).
Womack felt it was not necessary for him to go to work because the kiln had been dismantled for
repairs. Mork testified that on July 4, 2001, a new burner management system was being
installed by outside contractors. Mork stated it was particularly important for kiln operators to
be present during this installation so the kiln could be monitored as it was turned on and off.
(Tr. 454).

240

Womack stated that he asked his wife to call Graymont on July 4, 2001, to notify it that
he was taking sick leave. Womack stated his wife telephoned but the call was not answered.
Mork testified Womack told him his wife forgot to call in. (Tr. 454, 456). The kiln is staffed
24 hours per day. It is company policy for employees to telephone the main office number when
no one answers the telephone in the kiln operator's control room. If the main office telephone is
not answered, the call is transferred to a paging service where a message can be left. (Tr. 45152). It is important for kiln operators to call in sick prior to their shift so their shift can be
covered by another kiln operator. (Tr. 461).
Womack had a scheduled day off on July 5, 2001. Womack returned to work on July 6
and worked through July 9, 2001, without incident. After completing his shift on July 9, 2001,
Womack was directed to Hudson's office where he met Mork, and union shop steward
Steve Charest. Mork informed Womack that he was going to receive two letters of reprimand.
However, since Plant Manager Ron Eccles was on vacation, the two reprimand letters were not
given to Womack formally until July 23, 2001. (Tr. 139-40).
The first reprimand was dated June 9, 2000. (Comp. Ex. 7). It concerned the
June 2, 2000, "I am gay'' hard hat incident. It cautioned Womack against any further incidents of
graffiti or harassment of fellow employees. Graymont asserts the reprimand was placed in
Womack's file on June 9, 2000, although it was not given to Womack until one year later due to
an oversight.
The second reprimand, dated July 5, 2001, concerned Womack's July 4, 2001, absence.
(Comp. Ex. 6). It noted Womack did not notify plant supervision that he would not be working
on the fourth of July although Womack admitted he had decided in advance not to work on the
fourth of July holiday. 6
At the hearing, in support of his discrimination complaint, Womack contended the
reprimand letters were motivated by his August 1999 hazard complaints. Womack also asserted
his reported aggravation of his back condition in August 2000 was an additional motivating
factor because Graymont opposed Womack's L&I claim for a permanent partial disability rating.
(Tr. 130-138). However, Womack failed to identify any protected activity that occurred within a
reasonable time period of the July 2001 reprimand letters.

6

The July 5, 2001, reprimand also noted Womack was absent from work on March 21
and March 22, 2001, without approval. (Comp. Ex. 6). At the hearing, Graymont stipulated that
it would expunge all reference to Womack's March 2001 absences from Womack's personnel
records. (Tr. 113-16, 400).
2'41

d. Womack's Au1:ust 3, 2001, Grievance
On August 3, 2001, Womack filed a grievance with Local No. 599 of the Teamsters
Union challenging his two reprimand letters. (Resp. Ex. 2). In his grievance, Womack alleged
his wife attempted to call the kiln department on the fourth of July, but no one answered the
telephone. At the hearing, Womack conceded it was his responsibility to contact Graymont if he
was not reporting to work, and that Graymont was not contacted. (Tr. 281).
Despite admitting at trial that he told co-workers he did not intend to work on the fourth
of July, in his written grievance Womack alleged:
... On the 4th of July 2001 my neck and back [were] flared-up
from working four twelve hour shifts. I took my medic[ine] as
p[res]cribed by my doctor for pain. ( Darvocet, Musc[le] Relaxers,
Darpro) The medication made me drows (sic), and unable to
perform[} my duties . .. .
(Emphasis added). (Tr. 122; Resp. Ex. 2). Although Womack complained during medical
examinations that his physical limitations interfered with his job performance, the written
grievance was the first time Womack specifically alleged experiencing side effects that prevented
him from reporting to work.
Womack's attempt to mitigate his unauthorized absence by claiming he was drowsy is
notable for its transparency. Mork, who has worked with Womack since May 1999, testified
there was no evidence that medication had impaired Womack's ability to perform his job. (Tr.
475, 498). Womack never received written warnings for his job performance and, with the
exception ofWomack's absence for several weeks for job-related injuries in 1999, Womack's
attendance in 1999, 2000 and 2001 was very good. (Tr. 53; Comp. Exs. 5, 8, 22). In this regard,
Graymont' s Counsel represented " . .. there was· nothing that indicated [to Graymont officials]
that [Womack's] drugs had any effect .... " (Tr. 490).
Moreover, the company knew Womack's excuse was not credible. In its July 5, 2001,
reprimand, the company stated, "[y]ou also said you knew in advance you would not come [to
work] and did not request leave on that day." (Comp. Ex. 6). Mork testified that Womack had
admitted during the July 9, 2001, meeting that" ... Womack knew a year before that [he] wasn't
going to be working on the fourth of July." (Tr. 456). Several other kiln operators also told
Mork that Womack had told them he was not planning on working on July 41h. (Tr. 458; Comp.
Ex 17). Fellow kiln operator, Harold Givens, testified Womack told him "two or three days"
before the fourth of July that he was not planning on working that day. {Tr. 409).

242

Succinctly put, Mork testified, "[we] just didn't believe him." (Tr.458). Yet, this
transparent excuse, that medication made Womack drowsy only on the fourth of July holiday
when Womack was required to work, has set in motion a series of events that has "spun out of
control."7

III. Further Findings Of Fact Womack's Suspension and Termination
a. The Five Day Suspension
Despite having received L&I reports identifying Womack's medicine, Graymont contends
that it initially became aware that Womack was on medication on August 3, 2001, after it
received his grievance. On August 7, 2001, Dennis Wakin, Graymont's Assistant Plant Manager,
requested Womack to identify his medicine. Womack did not comply.
Wakin repeated his request on August 8, 2001. Womack again was unresponsive.
On August 29, 2001, Eccles, citing the company's workplace safety drug policy,8 informed
Womack that he would be suspended without pay effective August 31, 2001, if he did not
identify his medication. On August 31, 2001, Womack refused to comply until he could obtain
"the correct information" from his doctor. (Tr. 144; Letter from Womack to Eccles, Aug. 31,
2001). As a result of his failure to comply, Womack was suspended without pay for five days
from August 31 through September 4, 2001.
On September 5, 2001, Womack provided a statement from Gary Henriksen, his treating
physician. Henriksen stated Womack was taking Flexeril Tabs, 10 mg., throughout the day, and
Darvocet-N 100 Tabs at night for neck and back pain. Henriksen opined:
The Flexeril may cause some drowsiness if he requires them
frequently. The Darvocet may also cause drowsiness, but this
should not persist past his usual sleep period.
(Comp. Ex. 9).

7

At the outset of his opening statement, Graymont's counsel insightfully stated:
I want to give an outline of the time lines and things that went on
in this case. We're here because two warnings, deservedly given,
were presented to Mr. Womack, and since then this thing has spun
out of control.

(Tr. 37).
8

Section 4.1 of the company's workplace safety guidelines provides that employees who
are adversely affected by their use of legal prescription or non-prescription drugs are prohibited
from performing their jobs. (Resp. Ex. 10).
243

Having received Henriksen's statement, Eccles advised Womack that he could
temporarily return to work at 10:00 p.m. on September 5, 2001. Womack's return was
"subject to the [medication] list being reviewed by a qualified doctor assigned by the company."
(Resp. Ex. 12). Significantly, Womack's return was conditioned solely on a review of bis
medication, rather than on an evaluation of his physical condition.

b. Womack's Au~st 7, 2001 MSHA Complaint
Section 103(g)(l) of the Act, 30 U.S.C. § 813(g)(l), enables a miner to request
an immediate MSHA inspection if he believes that a violation of a mandatory health or safety
standard has occurred. Section 103(g)(l) further provides that the mine operator shall be notified
that a hazard complaint has been filed no later than at the time of the inspection.
On August 7, 2001, Romona Womack, James Womack's wife, filed a section 103(g)
hazard complaint on behalf of her husband. 9 Mrs. Womack indicated that her husband received
second degree bums from lime, and she wanted to know if limestone exposed him to chemical
hazards or carcinogens. (Comp. Exs. 13, 14, 19). The complaint was filed approximately two
weeks after Womack was reprimanded. It is not clear whether the complaint was communicated
before Graymont first insisted that Womack identify his medication.
ln response to Womack's complaint, MSHA conducted a hazard investigation from
August 21 through August 30, 2001, during which time 21 health samples were taken and
two citations were issued. (Comp. Ex. 19). As a consequence of the investigation, Citation
No. 7999440 was issued on August 28, 2001, citing a non-significant and substantial (non-S&S)
violation of the provisions of section 56.2001 1, 30 C.F.R. § 56.20011, because hazard signs
were not posted to warn of asbestos materials on the baghouse piping in the mill area. (Comp.
Ex. 11). A violation is designated as non-S&S if it is unlikely that the violation will contribute to
an illness or injury. Nat 'l Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
ln addition, Citation No. 7999442 was issued for an alleged violation of section 103(a) of
the Act, 30 U.S.C. § 813(a), after MSHA inspectors learned Mork had reassigned a worker from
his normal duties to prevent an adverse dust sampling result during the investigation.
(Tr. 509; Comp. Ex. 12). Section 103(a) prohibits mine operators from interfering with an
MSHA inspection or investigation.

9

Graymont asserts Romona Womack's August 7, 2001, hazard complaint is not
protected activity because it was not communicated directly to MSHA by James Womack.
(Resp. Br. at p.25, fn.25). Section 105(c)(l) ·prohibits a mine operator from discriminating
against a miner because" ... such miner, [or] representative . . . has fi led or made a complaint
under or related to this Act .... " Obviously, Mrs. Womack was acting in a representative
capacity when she complained to MSHA on behalf of her husband. Consequently, her complaint
is deemed to be the protected activity of James Womack. Hereinafter, Mrs. Wornack's complaint
also will be referred to as "Womack's complaint."
244

c. Womack's September 21, 2001 Suspension
After providing his list of medications, Graymont permitted Womack to work from
September 5 through September 20, 2001. On September 21, 2001, Womack attended a meeting
with Wakin, Tom Wakefield, who was Wakin's superior, and Charest. Womack was advised
that he was suspended immediately because his medication prevented him from safely
performing his job duties. Womack was told that the suspension w~s for an indefinite period
until Womack changed his drug regimen. (Tr. 144).

In a letter dated September 21, 2001, Eccles formally advised Womack that he was
suspended without pay because Dr. William Carr, a physician selected by the company, had
evaluated the medication list furnished by Henriksen and determined it was "not appropriate"
for Womack to perform four work activities required by his job. Carr concluded it was
inappropriate for Womack to: (1) work around rotating equipment in a high temperature
environment; (2) work with acids; (3) walk up a spiral staircase; and (4) pull ash balls from the
kiln grizzly using an 8 to 10 foot poker. (Comp. Ex. 10). Eccles noted the suspension would
remain in effect "until this situation can be resolved." Id.
On September 24, 2001, Womack advised Eccles that Henriksen refused to take him off
his prescribed medication. (Resp. Ex. 13). Rather than use sick leave, Womack filed for L&I
compensation that was awarded effective September 21, 2001. (Tr. 145).

d. Womack's October 22, 2002, Termination
Womack received L&I compensation for the period September 21, 2001, through
July 8, 2002, when L&I te1minated his benefits after it learned he was no longer taking
medication. (Resp. Ex. 9). On July 18, 2002, Womack informed Graymont that he had been
released from Henriksen's care and that he was no longer taking muscle relaxants. (Resp. Ex.
18, p. l). Womack attached a July 16, 2002, statement from Henriksen that Womack was last
prescribed a muscle relaxant on April 9, 2002. Womack also provided a medical release clearing
him for light duty. (Resp. Ex. 18, p.2). However, it is not clear whether the medical release was
current because it was undated and referenced a previous workability report dated July 12, 2001.
(Resp. Ex. 18, p.3).
On July 29, 2002, Wayne J. Wagner, Graymont's Vice President and General Manager,
acknowledged receipt of Womack's July 18, 2002, request for reinstatement. However, Wagner
noted Womack had failed to provide a current workability report. To determine if the company
could offer Womack an accommodation, Wagner requested Womack to provide Wakin with a
detailed physician's description of Womack's current work restrictions. (Resp. Ex. 19).
On August 13, 2002, Womack's union representative provided Wakin with Henriksen's
August 9, 2002, workability report. The report provided diagnoses oflumbosacral spondylosis,
and cervical, thoracic, and lumbosacral disc degeneration. These diagnoses were consistent with

245

the diagnoses provided to the company since Womack initially injured his back in July 1999.
Henriksen's report stated that Womack" ... is on NO medications that will impair his balance,
judgement, or reaction time." The report also indicated that Womack was restricted from
frequent changes of position as well as kneeling, squatting or crawling. Finally, Henriksen
indicated Womack was limited to lifting, pufling or pushing no more than 35 pounds. (Comp.
Ex. 20).
Wakin responded to the August 9, 2002, workability report on September 4, 2002.
Wakin stated he needed "more specificity about the nature and possibility of modifications that
may be required to allow [Womack] to perform the essential functions of [his] position."
(Comp. Ex. 21, p. l ). Wakin attached a description of the essential functions of the kiln operator
job for Womack's physician to consider. The essential functions included pulling or pushing
"ash balls" weighing up to 150 pounds from the kiln using 8 to 10 foot pokers weighing 20
pounds, and lifting upwards of 80 pounds. (Comp. Ex. 21, p.3).
Upon completion of the hearing on October 3, 2002, Womack had not responded to the
company's September 4, 2002, request for a more detailed physical assessment. Despite having
Henriksen's July 16, 2002, statement and his August 9, 2002, workability report, Graymont
continued to maintain that the information provided by Henriksen was insufficient. The record
was left open for Womack to provide Graymont with additional information.
Womack provided an additional statement from Henriksen dated October 7, 2002.
(Henriksen memorandum, Oct. 7, 2002). Henriksen opined that Womack was capable of
performing moderate exertional activity. Consistent with the medical reports Henriksen
previously had provided to Graymont, he recommended that Womack should not lift, pull or
push more than 35 pounds. Henriksen expressed-concern if Womack were required to push or
pull a 150 pound ash ball with a 10 foot poker weighing 20 pounds, an activity Graymont
described as an essential function of the kiln operator job. Henriksen opined that using a poker
for such an activity would make Womack's cervical and thoracic spine the "pivot point,"
"dramatically exceed[ing] the 'Moderate' activity level." Id.
Graymont asserts that, to assist it in determining whether to reinstate Womack, it
contracted with a certified rehabilitation counselor to analyze and identify the essential functions
of the kiln operator position. The required exertional activities identified in the job analysis
included removing ash balls from the kiln weighing up to 200 pounds and lifting 80 pounds or
more occasionally, 40 pounds frequently and 20 pounds continuously. (Job Analysis by
Catherine Parker, CRC, Oct. 9, 2002).
Based on the job analysis, Graymont concluded that Womack could not perform the
essential functions of his job "with or without a reasonable accommodation." Consequently,
Womack was advised that he was administratively separated from his employment effective
October 22, 2002. (Letter from Wak~n to Womack, Oct.18, 2002).

246

IV. Further Findings and Conclusions
a. The Jurisdictional Issue
Section 105(c) of the Act provides that a discrimination complaint can be prosecuted
before this Commission by the Secretary on behalf of the complaining miner under section
l 05(c)(2), or it can be brought directly by the miner under section 105(c)(3). A condition
precedent to a miner' s right to prosecute his complaint on his own under section 105(c)(3) is that
the Secretary must determine, upon her investigation, that the provisions of section 105(c) have
not been violated.
MSHA's November 8, 2001, investigation report reflects the Secretary considered
adverse actions complained of by Womack during the period July 2001, when his disciplinary
letters were received, through September 21, 2001, when he was placed on extended leave
without pay. (Comp. Ex. 19). However, MSHA's investigation did not address Womack's
October 22, 2002, termination as it occurred almost one year after its investigation was
completed. Womack's termination also occurred ten months after Womack filed his
December 14, 2001, complaint with this Commission.
Although a jurisdictional objection has not been raised, jurisdiction is always in issue.
The question arises whether the statutory prerequisites in section 105(c)(3) have been met to
permit Womack to amend his discrimination complaint to include his termination, even though
his termination was not investigated by the Secretary.
The Commission has noted that Congress intended section 105(c) to be broadly construed
to provide maximum protection for miners exercising their rights under the Ad. Sec '.Y of Labor
on behalfof Dixon v. Ponticki Coal Corp., 19 FMSHRC 1009, 1017 (June 1997), citing Swijt v.
Consolidation Coal Co., 16 FMSHRC 201, 212 (February 1994) ("the anti-discrimination
section should be construed 'expansively to assure that miners will not be inhibited in any way in
exercising any rights afforded by the legislation.' ") (quoting S. Rep. No. 95-181, at 36 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History ofthe
Federal Mine Safety and Health Act of 1977, at 624 (1978)). Thus, discrimination complaints
must be allowed to encompass all related aggrieved actions in an efficient, rather than piecemeal,
fashion. In this regard, the Commission has concluded that "it is the scope of the Secretary's
investigation, rather than the initiating complaint, that governs the permissible ambit" of the
Commission's jurisdiction. Ponticki, 19 FMSHRC at 1017.
In the instant case, Womack's five day suspension and his September 21, 2001, indefinite
suspension were considered during the Secretary's investigation although they occurred after
Womack filed his initial discrimination complaint on August 29, 2001. These adverse actions
were proper subjects of the Secretary's investigation since they· allegedly were motivated by
Womack's August 7, 2001, hazard complaint, the principal protected activity underlying
Womack's discrimination complaint.

247

Womack alleges his October 22, 2002, termination also was motivated by his
August 7, 2001, MSHA complaint. (Tr. 559). A continuing series of post-complaint adverse
actions alleged to have been motivated by protected activity previously investigated by the
Secretary is a proper subject in a 1OS(c)(3) proceeding. 19 FMSHRC at 1017. Any other
interpretation would result in endless litigation, not to mention interminable MSHA
investigations. Because Womack's protected activity was investigated by the Secretary pursuant
to section 105(c), any adverse actions allegedly stemming from that protected activity come
within "the pennissible ambit" of the Commission's jurisdiction. Id.
Finally, Womack's termination cannot be disassociated from his September 21, 2001,
suspension that was a subject of the Secretary's discrimination investigation. Accordingly,
Womack's December 14, 2001, Commission complaint may be amended to include his
October 22, 2002, termination.

b. Analytical Framework
Section lOS(c) of the Act prohibits discriminating against a miner because of his
participation in safety related activities. Congress provided this statutory protection to encourage
miners "to play an active part in the enforcement of the 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.
95-181, at 35 (1977), reprinted in Senate Subcomm. on Labor, Committee on Human Res.,
Legislative History ofthe Federal Mine Safety and Health Act of1977 at 623 (1978). It is
Congress' intent that, "[w ]henever protected activity is in any manner a contributing factor to the
retaliatory conduct, a finding of discrimination should be made." Id. at 624.
Womack, as the complainant in this case, has the burden of proving aprimafacie case of
discrimination. In order to establish aprimafacie case, Womack must establish that he engaged
in protected activity, and the aggrieved action was motivated, in some part, by that protected
activity. See Sec '.Y of Labor on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 (October 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 behalfof Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (April 1981).
Graymont may rebut aprimafacie case by demonstrating, either that no protected activity
occurred, or the adverse action was not motivated in any part by protected activity. Robinette, 3
FMSHRC at 818 n.20. Graymont may also affirmatively defend against a prima facie case by
establishing that it was also motivated by unprotected activity, and that it would have taken the
adverse action for the unprotected activity alone. See also Jim Walter Resources, 920 F.2d at
750, citing with approval Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987); Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the Commission's
Pasula-Robinette test).

248

In determining whether a mine operator's disciplinary actions run afoul of the statutory
protection accorded to miners, the scope of a discrimination proceeding is limited to whether the
operator's reported rationale for the adverse action is a pretext to mask prohibited retaliation for
protected activity. In this regard, 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 Act." Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (December 1990) (citations
omitted).
The Commission has addressed the proper criteria for considering the merits of an
operator's asserted business justification.
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 the 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 operator's business judgement
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 the
motivation and, if it did, whether it would have led to the adverse
action apart from the miner's protected activities.
Sec'y o./Labor on behalfof Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2516-17
(November 1981) (citations omitted), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983). The
Commission subsequently further explained its analysis as follows:
[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 judgement or a 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 would
have motivated the particular operator as claimed."
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted).
249

c. Graymont's Knowledge ofWomack's Protected Activity
The relevant protected activities are Womack's August 1999 and August 2001 hazard
complaints and the filing and prosecution ofWomack's discrimination complaint. Graymont
denies any knowledge ofWomack's protected activities until September 4, 2001, when MSHA
advised Graymont that Womack' s discrimination complaint had been filed.
Shortly after sustaining significant burns to his neck, back and arms on August 4, 1999,
Womack complained to MSHA that Graymont was not providing protective clothing to
employees working near the kiln. As a consequence ofWomack's complaint, MSHA
investigated Graymont's kiln procedures. On August 17, 1999, MSHA issued Citation
No. 7979030 and Order No. 7979031 charging Graymont for its failure to provide protective
clothing to Womack and Tucker, respectively. (Comp. Exs. 3, 4). Both citations made reference
to Womack's August 4, 1999, burn injuries. Citation No. 7979030 noted the foreman "was
aware of the potential burn hazard on August 4, 1999, and allowed the victim [Womack] to be
placed in harm's way." (Comp. Ex. 3). Both citations charged Eccles and Hudson with
unwarrantable conduct because of their reported longstanding failure to take remedial action
despite "previous similar experiences over many years." Id.
There are nine employees assigned to the kiln department. The Commission has held that
the small size of a mine supports an inference that an operator was aware of a miner's protected
activity. Morgan v. Arch ofIll., 21FMSHRC1381, 1391(December1999) (citations omitted).
Moreover, the information in the citations about a history of exposure to burn hazards, and that
the burn victim was allowed to remain in harm's way in the days preceding his injuries,
obviously was provided by Womack. (Comp. Ex. 3).
Nevertheless, Mork testified he was unaware that Womack had complained to MSHA.
Mork asserted he believed the inspection occurred as a result of the accident report the company
filed with MSHA. (Tr. 448). Accident reports involving injuries only result in inspections if
there is a fatality, or, if there is a reasonable likelihood that the victim will succumb to his
injuries. 30 C.F.R. §§ 50.2(h), 50.10. Consequently, Mork's assertion that he was unaware that
Womack had complained simply is not credible. Graymont is thus charged with knowledge of
Womack's August 1999 complaint.
On August 3, 2001, Graymont received Womack's union grievance. Womack claimed
Graymont had violated MSHA rules. Womack's grievance contained the vague assertion that,
"I have been discriminated and retaliated and harnessed (sic) for being a WHISEL (sic)
BLOWER!" (Resp. Ex. 2, p.3).
On August 7, 2001, Mrs. Womack communicated her safety concerns about her
husband's work environment to MSHA. Her complaint resulted in a hazard investigation that
began on August 21, 2001. The investigat~on was conducted under section l 03 (g)(l) of the Act.
Section 103(g)(l) requires MSHA to notify the mine operator, no later than the beginning
of the inspection, that a complaint has been filed. Moreover Citation No. 7999442, issued

250

on August 30, 2001, explicitly stated that MSHA was "conducting a hazard complaint
investigation." (Tr. 157-58; Comp. Ex. 12). Despite Wakin's assertion that Graymont did not
know the inspection was generated by a complaint, the evidence demonstrates Graymont knew
that a complaint had been filed as early as August 21, 2001. (Tr. 527-28).
Like Womack's August 1999 complaint, the August 2001 complaint resulted in serious
charges against management. Mork was charged with interfering with MSHA's investigation
because he allegedly reassigned an employee to avoid adverse dust samples. While Graymont
had reason to suspect Womack was the informant in view ofWomack's recent admission of
whistle blowing in his grievance, the evidence suggests Graymont was uncertain. (Tr. 450, 52526). On August 29, 2001, Mork asked MSHA inspector Gary Tallman to identify the
complainant, but he refused. On September 4, 2001, during the close-out conference, Mork
again sought to ascertain the name of the informant. (Tr. 478-80; Comp. Ex. 15). Once again,
MSHA explained that the complainant's identity was confidential. (Tr. 450).
Wakin admitted Graymont ultimately learned Womack was the informant on
September 4, 2001, shortly after the close-out conference, when MSHA advised Graymont that
Womack had filed a discrimination complaint. (Tr. 526-28; Comp. Ex. 17). Thus, on balance,
the evidence reflects Graymont is charged with knowledge of Mrs. Womack's hazard complaint,
as well as Womack's discrimination complaint, as of September 4, 2001.
d. The Disciplinary Letters

Womack alleges his July 2001 reprimands were motivated by his August 1999 MSHA
complaints. The Commission has stated that an indicia of discriminatory intent is a coincidence
in time between the alleged protected activity and the adverse action. Chacon, 3 FMSHRC at
2510. Womack's 1999 MSHA complaints are too remote in time to have motivated Graymont's
discipline almost two years later.
Moreover, participation in protected activity, and management's knowledge of such
activity, does not insulate a miner from the consequences of his own misconduct. Womack's
July 41h absence was unauthorized and his conduct was inexcusable. Womack knew in advance
that he intended to take the fourth of July holiday off, yet he did not seek the company's
approval. It is reasonable to infer that Womack believed Graymont would deny leave because it
would be unable to cover his shift with other personnel on the holiday.
Womack's litany of excuses - that he thought he wasn't needed because the kiln was
being repaired, that his wife was supposed to call but she forgot, that his wife did call but no one
answered the telephone, and, finally, the belated excuse that he was too drowsy to come to work
because of his medicine - are lacking in credibility. Womack was absent without leave on
July 4, 2001. The business justification for enforcing the company's policy against unauthorized
absence is self-evident. Under such circumstances, Womack has failed to demonstrate that his
reprimand for his unauthorized leave was, in any part, motivated by his protected activity.
Therefore, Womack's discrimination complaint concerning the July 5, 2001, reprimand
letter is denied.
251

Similarly, the hard hat incident that resulted in the embarrassment, if not the harassment,
of a fellow employee was likewise inexcusable. The disparate treatment charged by Womack
because a co-conspirator was not disciplined by Graymont, even if true, does not absolve or
otherwise mitigate Womack's conduct.
Graymont's failure to provide Womack with a written disciplinary letter for more than
one year after the incident also does not excuse Womack's conduct. A company has a legitimate
interest in ensuring that its employees are not harassed by fellow workers. While the one year
delay may raise procedural issues for resolution in a union grievance, such issues are beyond the
scope of this proceeding. Accordingly, Womack's has failed to demonstrate that the reprimand
dated July 9, 2000, belatedly given to him on July 23, 2001, was motivated, in any part, by his
protected activity. Accordingly, Womack's discrimination complaint regarding the
reprimand letter dated July 9, 2000, is denied.

e. The Five Day Suspension Womack's Medication
Graymont's contention that Womack's "revelation" that he was taking pain medication
raised serious safety concerns is suspect. ( Resp. Br. at p.10). It is difficult to imagine that
Graymont did not realize Womack was taking pain medication or muscle relaxers until
August 2001. Graymont knew Womack was on "restricted duty" that limited him to lifting no
more than 40 pounds. (Tr. 499). Graymont also knew Womack was entitled to L&I benefits for
reimbursement of medical expenses. It is undisputed that Graymont routinely received L&I
notices identifying Womack's medication. In this regard, Mork testified that after Womack filed
his grievance," ... we went back and looked through the L&I records to find out what kind of
medication he was on." (Tr. 486-87). Moreover, Eccles provided a list of prescribed
medications obtained from Womack's personnel records for review by a company physician.
(Chart Review from William Carr, M.D., Sept. 14, 2001, at p. l). 10
The sincerity of Graymont's alleged serious safety concerns is further eroded by its own
admissions and conduct. Graymont had never known Womack to have been dizzy or otherwise
adversely affected by medication while at work. (Tr. 483, 490, 498-500). Graymont did not
believe Womack had been adversely affected by medication on the fourth of July. (Tr. 458).
Most perplexing, Graymont allowed Womack to work three consecutive 12 hour shifts, from
August 23 through August 25, 2001, during a period when it reportedly had serious concerns
regarding the potential hazard posed by Womack's medication. (Comp. Ex. 8).
10

Dr. Carr's September 14, 2001, Chart Review was proffered by Graymont and marked
for identification as Resp. Ex. 21. Womack objected to its admission because of Carr's
references to medications other than Flexeril and Darvocet, the only medicine identified by
Henriksen. Counsel for Graymont withdrew the exhibit. (Tr. 541-46). Both Womack and
Graymont submitted Carr's Chart Review in response to the post-hearing November 21, 2002,
Order. Therefore, it is part of the evidentiary record. See fn.3 infra.
252

Despite its disbelief that Womack had suffered from drowsiness on the fourth ofJuly,
an absence of any known history of side affects, and Womack's 12 hour shifts, Graymont
continued to press Womack for fu ll disclosure. Womack continued to refuse to identify his
medication because he feared Graymont's motives. On September 4, 2001, Womack sought
Henriksen's advice. Henriksen noted:
Told Patient that it was up to him whether or not the medication he
was taking were known to his supervisor, but that the law requires
his claims manager to have access to this data in any event, that
there was nothing particularly embarassing (sic) or immoral or
anything in his use of these medications, and I really didn 't see any
harm in the release ofthat info, but the choice of course was his.
(Emphasis added). (Henriksen encounter notes, September 4, 2001). At that time, Henriksen
also noted Womack was "cleared for light duty." Id.
Having failed to respond to Graymont's repeated requests, Womack was suspended
without pay from August 31 through September 4, 2001. After furnishing the requested
information from his physician, Womack was reinstated on September 5, 2001, subject to
further review ofWomack's medication by a company doctor. (Comp. Ex. 9).
~ resolving whether the five day suspension was motivated by protected activity, it is

significant that the medication list was initially requested on August 7, 2001, before any
knowledge of relevant protected activity can be attributed to Graymont. Womack's 1999 MSHA
complaints were too remote in time to have motivated Graymont. Given the totality of
circumstances, it is likely that Graymont's suspension was influenced more by the lack of candor
and other accusations lodged against the company in Womack's union grievance, than by a
concern for his safety. 11 Although retaliation in response to Womack' s union grievance is not
actionable under the Act, a history of retaliatory conduct is relevant when adverse actions, such
as Womack's long term suspension and termination, closely follow protected activities.
Regardless of whether Graymont was motivated by a desire to retaliate, or a
sincere concern for Womack' s well being, it was Womack who raised the issue of side effects.
The company's workplace safety guidelines prohibit employees who are adversely affected by
their medication from performing their jobs. (Resp. Ex. 10). In the final analysis, Womack was
suspended for refusing to respond to the company's request that he identify his medication, not
because of the effects of his medication. While Graymont's subsequent actions validate
Womack's reluctance to cooperate, his failure to accede to the company's repeated requests, at
that time, provided an independent business justification for the company's disciplinary action.
Consequently, in the absence of any temporal protected activity, Womack's discrimination

complaint with r espect to his five day suspension shall be denied.

11

Womack's grievance included charges of harassment, defamation of character· and
civil rights violations. (Resp. Ex. 2).

253

f. The September 21. 2001, Suspension Potential vs. Actual Side Effects
As noted above, the evidence reflects this litigation was spawned by Womack's August 3,
2001, union grievance and the repercussions that followed. As suggested by Graymont, Mrs.
Womack's MSHA complaint may have been in retaliation for her husband's disciplinary letters.
(Resp. Br. at p.8). However, the focus in this proceeding is on whether Graymont's adverse
actions were in response to Mrs. Womack's complaint. Retaliatory conduct by a mine operator is
relevant in determining whether the mine operator's asserted motivation for the challenged
actions is as claimed. Womack was suspended only two weeks after Graymont admittedly
learned of Womack's recent protected activity. Womack was terminated only two weeks after
the hearing.

Thus, Womack's September 21, 2001, suspension must be analyzed to determine if it
was, in any part, in retaliation for Womack's protected activity. If the protected activity was a
contributing factor, Graymont can affirmatively defend by demonstrating that it was also
motivated by considerations unrelated to protected activity, and, that it would have taken the
adverse action for these independent considerations alone. Robinette, 3 FMSHRC at 818 n.20.
Womack was temporarily reinstated.on September 5, 2001, after he provided his
physician's statement concerning Flexeril and Darvocet. In assessing the potential side effects,
Henriksen stated, "(t]he Flexeril may cause some drowsiness if he requires them frequently
(emphasis added)." Henriksen also stated, "[t]he Darvocet may also cause drowsiness, but this
should not persist past his usual sleep period (emphasis added)." (Comp. Ex. 9).
Henriksen's reference to potential side effects, regardless of their likelihood, reportedly
concemeq Graymont. On September 5, 2001, Eccles advised Womack that he could return to
work "subject to [Womack's medication] list being reviewed by a qualified doctor assigned by
the company." (Resp. Ex. 12). Significantly, Eccles concerns were limited to the effects of
Womack's medication. By allowing Womack to return to work pending review of his
medication, without regard to his physical condition, Graymont implicitly admitted that
Womack's back condition did not preclude him from performing his duties. In fact, Graymont
did not assert Womack's exertional limitations precluded him from performing his duties until
his October 22, 2002, termination.
On September 14, 2001, Henriksen's information was reviewed by William Carr, an
orthopedic surgeon selected by Graymont. (Carr Chart Review). Carr noted that pain medication
"can affect different people in different manners but definitely has been known to cause mild to
moderate dizziness in patients." (Carr Chart Review, at p.2). As an illustration, Carr explained
that the Physician's Desk Reference (PDR) notes that Hytrin can cause fainting. Hytrin
commonly is prescribed for high blood pressure and prostate conditions. According to Carr, the
PDR notes that, "21 % of the patients [on Hytrin] experienced one or more of the following:
dizziness, hypotension, postural hypotension, syncope and vertigo." Id. On September 14, 2001,
Womack was not taking Hytrin, although it previously had been prescribed.

254

On September 21, 2001, Eccles advised Womack that Carr had evaluated Womack' s
medication and determined it was "not appropriate" for Womack to work around a hot kiln.
(Comp. Ex. 10). Apparently, Carr's opinion was based on Womack's use ofFlexeril, as
Henriksen opined Darvocet would not affect Womack "past his usual sleep period." (Comp. Ex.
9). Although Flexeril can cause drowsiness, no medical evidence has been presented regarding
the nature, extent or frequency of the side effects caused by Flexeril. Womack was advised that
his suspension would remain in effect "until this situation can be resolved." (Comp. Ex. 10).
Despite this representation, Womack has been terminated although he is no longer on
medication.
Obviously, precautions should be taken when employees who operate hazardous
equipment are prescribed medication. However, in suspending Womack, Graymont, in effect,
presumes that all employees who operate machinery while taking medication with potential side
effects are incapable of safely performing their jobs. The implausible nature of Graymont's
presumption is illustrated by Carr's Hytrin example from which it can be it can be deduced that
79% of people taking Hytrin do not experience dizziness or other serious side effects. (See Carr
Chart Review, at p.2).
Moreover, the workplace safety rule Graymont relies on only prohibits "employees
adversely affected in their use of any legally obtained drug" from performing their regular job.
(Emphasis added). (Resp Ex. 10). Even this workpla~e rule recognizes that employment
decisions involving potential side effects should be made individually, based on whether the
employee actually is experiencing adverse side effects.
As previously emphasized, Garymont was unaware of any relevant history of adverse side
effects. Graymont did not believe Womack experienced adverse side effects on July 4, 2001.
Finally, Graymont did not seek to determine whether Womack was currently experiencing
adverse side effects. It even allowed Womack to work overtime while it was "reviewing" his
medications. In this context, in the absence of evidence of actual side effects, Graymont is left
with Carr's report that Flexeril "certainly affects different people in different manners" as its
justification for Womack's suspension. (See Carr Chart Review, at p. l). It is highly unlikely that
Graymont heavily relied on Carr's Chart Review of Womack's medication as claimed.
It is noteworthy that while Graymont was considering the impact of Womack's
medication on his ability to work, it learned that Womack was charging the company with
discrimination under the Act. Womack's discrimination complaint noted that he was responsible
for MSHA's unwarrantable fai lure charges against Eccles and Hudson in August 1999, and
MSHA's interference charges against Mork in August 2001. In view ofWomack's recent
discrimination complaint, it is unreasonable to conclude that the company was compelled to
suspend Womack based solely on the superficial information provided by Carr. Rather, the
credible evidence strongly suggests that Womack's September 21, 2001, suspension was at least
partially in retaliation for the numerous charges Womack had brought against the company that
by now included Womack's protected discrimination complaint.

255

However, the analysis does not stop there. The company maintains that even if it was
motivated by Womack's protected activity, there was a medical basis for the suspension. It is not
surprising that after Womack was suspended, he was awarded L&I compensation based on
Graymont's decision that the treatment of Womack's job-related back injury prevented him from
working. Despite Graymont's questionable rationale, a medical finding that Womack was
incapable of performing his job duties provides an independent business justification for
Womack's September 21, 2001, suspension, regardless of his protected activity. Accordingly,
Womack's discrimination complaint with respect to his September 21, 2001, indefinite
suspension shall be denied.

g. Womack's Back Condition
Womack initially sprained his back after pulling large chunks of ash during the week
ending on July 26, 1999. Womack suffered burn injuries at work on August 4, 1999. At that
time, Womack complained of exacerbating his back sprain. Following the August 4, 1999,
incident, Womack was absent from work and eligible for L&I benefits for approximately seven
weeks from August 4 through September 11, 1999. (Tr. 92; Comp. Ex 5). L&I ultimately rated
Womack's burns as a 9% permanent skin impairment. Unlike his bum injuries, L&I has declined
to rate Womack's back condition as a job-related permanent partial disability. (Tr. 132; Resp.
Ex. 1).
Womack was initially seen by Dr. Arthur Moritz on July 26, 1999, with complaints of
progressive right upper back pain of one month's duration. Womack attributed the pain to a poor
grade of coal that caused him to rake ash from the kiln more frequently with greater exertion.
Womack denied any history of a lower back injury, although he reported a prior cervical strain.
(Moritz examination notes, July 26, 1999). A follow-up examination on August 5, 1999, noted
mild degenerative back disease. However, there was no evidence of superimposed acute bony
changes as current X-rays were consistent with past films. The examination findings were
consistent with a lumbago/lumbar ligamentous strain. (Moritz memorandum, Aug. 5, 1999).
At that time, Womack reported Naprosyn and Flexeril had provided some relief. (Moritz
examination notes, Aug. 5, 1999). Moritz noted, although Womack stated he was feeling better,
Womack's "wife is worried about the wear and tear he has received and the fact that he still has
pain on lifting." Id. Womack was subsequently seen on August 12, 1999, at which time Moritz
expressed optimism that Womack would make a full recovery within two to four weeks. (Moritz
memorandum, Aug. 12, 1999). The diagnosis was lumbosacral sprain. Id
On August 26, 1999, Moritz noted Womack had suffered a set back with a recurrence of
pain during physical therapy. Moritz ordered a CT scan and diagnostic work up. (Moritz
memorandum, Aug. 26, 1999). The diagnostic radiographic studies "failed to show serious
lumbosacral disc disease ...." although underlying degenerative joint disease was identified.
(Moritz memorandum, Sept. 2, 1999). Moritz released Womack for light duty with restrictions
including lifting no more than 30 pounds. Moritz anticipated the restrictions would last for two
months. Id. Womack was prescribed Hytrin for a mildly elevated PSA. (Moritz progress notes,
256

Sept. 24, 1999). On October 8, 1999, Plant Manager Ron Eccles advised L&I that benefits
should cease because Womack returned to "full duty" on September 13, 1999. (Letter from
Eccles to L&I, Oct. 8, 1999).
X-rays of the lumbar spine obtained during a March 17, 2000, orthopedic and
neurological examination were negative with the exception of borderline narrowing at L4-L5.
X-rays of the thoracic spine showed hypertrophic spurring without significant changes from films
taken on November 20, 1998. The diagnosis was history of lumbosacral sprain related to an
industrial injury of July 26, 1999. It was noted that "no further treatment measures are necessary
to resolve the residual effects of this injury." (Examination report of Robert Chambers, M.D.,
and J. Michael Egglin, M.D., Mar. 17, 2000). A subsequent orthopedic and neurological
examination on July 8, 2000, was unremarkable in that it disclosed no significant muscle atrophy,
limitation of motion or sensory loss. (Examination report of John Lipon, D.O., and Eugene
Wong, M.D., July 8, 2000). At that time, it was noted that Womack was not taking medication
for his back condition. The diagnosis again was lumbar strain. The physicians concluded
Womack's condition was medically fixed and stable and that no further curative measures were
necessary. Id.
Womack first visited Dr. Gary Henriksen on August 1, 2000, complaining of an
exacerbation of his back condition. Henriksen recommended that Womack should not return to
work until August 4, 2000. Womack was returned to light duty with a 40 pound lifting
restriction. (Letter from H.R. Johnson, M.D. to Nate D Mannakee, Esq., Oct. 12, 2001).
A January 31, 2001, cervical MRI revealed mild cervical degenerative changes
consisting of mild narrowing at the C5-C6 and C6-C7 levels and neuroforaminal narrowing to a
mild degree at the C4-C5 level bilaterally. There was no evidence of focal unilateral disc
herniation. (MRI report of Robert R. Livingston, M.D., Jan. 31, 2001).
The 40 pound weight lifting restriction remained in effect from August 2000 until
Womack's September 21, 2001, suspension. Id In this regard, Henriksen's workability reports
furnished to Graymont on December 12, 2000, July 12, 2001, September 4, 2001, September 24,
2001, and October 9, 2001, all reflect restrictions for lifting, pulling and pushing of no more than
40 pounds.
Mork testified that, "of course" he was aware of Womack's physical limitations.
(Tr.483). Mork understood that Womack's work releases restricted him from pushing or
bending. (Tr. 485). However, he noted that the company was "working with [Womack] on ...
[his] work restrictions." (Tr. 483). Despite Womack's restrictions, Mork opined that Womack's
impairment did not prevent him from performing his job duties. (Tr.498-500). Wakin testified
that he assumed Womack was off all medication that would hinder him from performing his job
after he" ... was released to come back to work for light duty .... " (Tr. 529-30).

257

Mork explained that whenever it was necessary to remove heavy material from the kiln,
the company accommodated Womack by providing him with an assistant. (Tr. 507). The
company similarly accommodated Harold Givens, a Graymont kiln operator for over
15 years. Unlike Womack who bas a large build, Givens is thin and considerably shorter than
Womack. Givens testified that the older he gets, the more trouble he has pulling ash balls and
lifting over 80 pounds. Givens indicated that the stoneman assists him when the exertional
demands of the job are too extreme. (Tr. 387, 398).

In support ofWomack's termination, Graymont relies on Henriksen's advice that
Womack should consider seeking alternative non-physical work that will not, over the long term,
adversely affect his back condition. In this regard, during an August I, 2000, examination,
Henriksen opined:
Manipulating heavy objects at the end of a 6-8 foot [rod] places
rather enormous torque on the cervical, thoracic, and lumbar spine.
While Mr. Womack is an exceptionally strong individual (if a little
overweight) the CT from a year ago and c-spine from today clearly
indicated the effects of this repeated heavy work with poor
ergonomics. While I realize that this is rather good paying work
compared to other jobs he may qualify for, I doubt seriously that he
will be able to do this for another 15 years, and I think eventual
vocational change will have to be made.
(Henriksen encounter notes, Aug. 1, 2000). In October 2001, when Womack was 52 years old,
Henriksen noted Womack could return to his JOI Gob of injury) on light duty, but Henriksen
repeated he" ... doubt( ed] that (Womack] can continue his current (very heavy work) job to age
65." (Henriksen encounter notes, Oct. 9, 2001). On May 31, 2002, Henriksen recommended that
Womack return to "permanent modified duty." Henriksen imposed lifting restrictions of 50
pounds, and pushing/pulling restrictions of 50 pounds with no more than 100 foot-pounds of
torque. Henriksen noted that maximum medical improvement had been attained and that further
follow-up was not required. (Henriksen workability report, May 31, 2002).
Womack returned to Henriksen on August 9, 2002. Henriksen noted:
SUBJECTNE: Patient indicates that he MAY be able to go back
to light duty if he gets a Work.Ability form that defines restrictions.
This would be under the preferred worker program. He states his
clinical symptoms are no different, and he still has 6/10 right sided
neck pain.

258

ASSESSMENT: I have always indicated that he could return to
work. I provided him with copies of the two IMEs suggested work
restrictions, one specifying "medium" work, one limiting him to
25#. The reality is that he has multilevel cervical, thoracic, and
lumbar DDD, and the greater the lifting he does the greater the
chance of further degeneration.
PLAN: Will provide letter clearing for light to medium duty as per
IME.
(Emphasis added). (Henriksen encounter notes, Aug. 9, 2002).
Obviously, physical labor becomes more difficult with advancing age. As Givens
responded when asked if he has problems performing his kiln operator job - - "I do, yeah. The
older I get." (Tr. 387). Henriksen's speculation that Womack may not be physically able to do
his job until age 65 is not medical evidence that Womack currently is unable to return to his
fom1er position within the limits of his exertional limitations.
In sum, the evidence reflects Womack sustained a job-related back sprain with periods of
exacerbation. The discomfort from Womack's back sprain is secondary to his underlying mild to
moderate degenerative back impairment. There is no objective clinical CT scan or MRI evidence
of a superimposed traumatic injury that requires surgical intervention.
Significantly, Graymont asserts its decision to place Womack on extended leave
in September 2001 was based solely on the hazards posed by Womack's medication.
(See Resp. Ex. 12). Prior to its October 18, 2002, decision to terminate Womack, Graymont
did not contend the severity of Womack' s back condition prevented him from performing his job.
On the contrary, Graymont admits Womack was capable of performing his job with a reasonable
accommodation. (Tr. 483, 498-500).
Finally, I am cognizant of Graymont's reliance on various statements in Womack's L&I
records concerning Womack's reported physical limitations and his reported difficulties in
performing his job. Such statements must be viewed in context. They were made in furtherance
ofWomack's claim for L&I benefits. For example, in a July 17, 2001, appeal ofL&I's decision
denying his claim for a monetary award, filed during a period when Womack was working
without incident, Womack stated:
I have received the order to closed (sic) my claim with a permanent
skin impairment of 9%. But my back has been rated a category 1
which does not contain a monetary award. I am appealing the back
claim . . . Many times I have to take the medications for pain even
though I have to work, and drive. The medications: Daypro
600mg 2xper day for swelling; Naproxen 500mg 1 to 2 times per
259

day for PAIN; Flexeril for muscle lOmg 1 pill 3 times per day. I
have suffered two (neck and back) permanent unresolved injuries
that the Department of Labor and Industries want (sic) to bring to a
close. The pain and burden falls on me, and eventually my
productivity, and ability to work .... My claim is being closed
based on information given by YOUR doctors who examined me
in about an hours time.
(Resp. Ex. 1). Womack is no longer qualified for L&I compensation. He is no longer taking
medication. Womack now maintains he is capable of returning to work. 12 His physician states
he can perform moderate activity.

h. Womack's Termination
After losing his L&I eligibility, Womack sought reinstatement on July 18, 2002.
Womack attached a July 16, 2002, statement from Henriksen that Womack was last prescribed
a muscle relaxant on April 9, 2002.
On July 29, 2002, Graymont requested Womack to provide more detailed medical
information. On August 13, 2002, Womack provided Henriksen's August 9, 2002, workability
report. Consistent with Womack's 30 pound exertional restriction first imposed by Dr. Moritz in
September 1999, that essentially remained in effect until Womack's September 21, 2001,
suspension, Henriksen restricted lifting, pulling and pushing to no more than 35 pounds. 13
Most importantly, Henriksen stated Womack was "on NO medications that will impair
[Womack's] balance, judgement, or reaction time." (Comp. Ex 20).
On September 4, 2002, Graymont sought an additional opinion from Henriksen
concerning Womack's ability to perform the essential functions of the kiln operator job. It is
instructive that Graymont did not seek to determine if Henriksen believed Womack was capable
ofretuming to the light duty he had performed prior to his suspension. (Tr. 483, 498-500).
The hearing was conducted on October 2 and October 3, 2002, at which time Womack
had not responded to Graymont's September 4, 2002, request. At the end of the hearing,
Graymont continued to assert that it had not received sufficient medical information. Graymont
continued to insist that Henriksen evaluate whether Womack could perform the essential

12

Womack now represents his L&I claim for his back condition is closed. (Womack
Reply Br. at p.15). Any further significant exacerbations reported by Womack after he returns to
work may reflect that he is unable to perform his job.
13

Womack had a 40 pound exertional limitation during a· substantial part of his two year
accommodation. (Tr. 483). The company does not allege that Womack's current 35 pound
limitation is materially less than his prior restrictions.
260

elements (the full exertional range) of his job, including lifting upwards of 80 pounds and
pushing "ash balls" weighing up to 150 pounds with an 8 to 10 foot poker weighing 20 pounds.
(Comp. Ex. 21, p.3). Graymont's request is odd given Womack's exertional limitation
of 35 pounds.
Henriksen responded to Graymont On October 7, 2002. Stating the obvious, Henriksen
opined that, pulling or pushing a 150 pound ball with a long poker "dramatically exceed[s ]"
Womack's ability to perform no more than moderate activity. (Letter from Henriksen concerning
Womack's restricted duties, Oct. 7, 2002).
Armed with this information, Graymont contracted the services of a certified
rehabilitation counselor to perform a job analysis to determine the essential elements of the kiln
operator job. The rehabilitation counselor concluded the kiln operator job required lifting as
much as 80 pounds. The analysis also noted the job required pushing, pulling and dragging ash
balls weighing over 200 pounds with the assistance of another person. (Job Analysis by
Catherine Parker, CRC, Oct. 9, 2002).
On October 18, 2002, Graymont, purportedly relying on the job analysis, concluded that
"[Womack] cannot perform the essential functions of [his] position with or without a reasonable
accommodation .... " (Letter from Wakin to Womack, Oct.18, 2002). Graymont did not
explain why Womack's previous accommodation was not possible. Consequently, Womack was
administratively separated effective October 22, 2002.
In analyzing whether the motivation for Womack's termination is as claimed,
the Commission has emphasized that:
... direct evidence of 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.'

Chacon, 3 FMSHRC at 2510 (quoting NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (81h
Cir. 1965). Some of the more common circumstantial indicia of discriminatory intent are
knowledge of the protected activity, hostility or animus towards it, coincidence in time between
the adverse action and the protected activity, and disparate treatment of the complainant. Id
Graymont admits knowledge ofWomack's protected activity. Graymont suspended
Womack approximately two weeks after it learned of his protected activity on September 4,
2001. Womack's termination occurred approximately two weeks after Womack's participation
in this hearing. Thus, there is a coincidence in time between Womack's protected activities and
the adverse actions that evidences a pattern of retaliatory conduct.

261

The record provides ample evidence ofhostility or animus towards Womack's protected
activities. Surely Graymont did not appreciate the unwarrantable failure and interference charges
resulting from Womack's complaints. In this regard, Mork repeatedly attempted to determine the
identity ofMSHA's informant, requesting MSHA to name its informant on August 29, 2001, and
again during the MSHA close-out conference on September 4, 2001. (Tr. 478-79; Comp. Ex. 8).
Attempts to determine the identity of a complainant constitute evidence of retaliatory intent.
Although not asserted as a justification for Womack's termination, Graymont objects to
"a barrage oflitigation and baseless complaints from Womack in every conceivable forum" that
followed Womack's disciplinary letters. (Resp. Br. at p.2). In this regard, in addition to the
claims filed against the company with the union, L&I, MSHA and this Commission, Womack
has brought charges before the Equal Employment Opportunity Commission (EEOC), and the
Tacoma Human Rights and Services Department. 14 Grayrnont's general hostility towards
Womack's numerous regulatory complaints includes hostility directed toward Womack's
protected activity as well.
In addition, Graymont's conduct reveals a pattern of behavior undertaken to mask its
retaliatory intent. With respect to the suspension, Graymont conceded it had no reason to believe
Womack suffered from any adverse side effects at work. Although Graymont received L&I
reports since September 1999 identifying Womack's medication, it denies having read them.
While Womack was on light duty and Graymont knew L&I was reimbursing Womack for his
medical treatment, Graymont asserts it was surprised to learn Womack was taking medication.
Assuming Graymont was unaware ofWomack's medicine, Graymont's reported surprise that
Womack was treated with medication is a further reflection of an absence of side effects at work.
(Tr. 532). Finally, although Womack relied on alleged side effects in his grievance, Graymont
concedes it did not believe him. Thus, in suspending Womack, Graymont insisted on obtaining a
list ofmedications that was already in its possession because ofreported side effects that it did
not believe occurred
To support Womack' s termination, Grayffiont enlisted the services of a rehabilitation
counselor in an attempt to justify its "determination" that Womack's 35 pound exertional
restriction precludes him from performing the essential elements of his job. This pretext further
evidences a hidden retaliatory agenda as it is clear that Womack cannot work as a kiln operator
without an accommodation.

14

Womack also has filed an ergonomics complaint and an asbestos complaint with L&I.
(Letter from Don Lofgren, Industrial Hygiene Regional Supervisor to Womack, January 2, 2003;
Womack Reply Br. at p.15). The asbestos complaint apparently followed a citation that
identified a confined area of asbestos in the company's mill area which was unlikely to cause
illness. As these complaints were filed after the hearing, the merits of these actions have not
been considered in this proceeding. I note parenthetically, however, that abuse of process, as
evidenced by a continuing stream of non-meritorious claims, may provide an independent
justification for adverse action.
262

Graymont relied on Womack's prescription regimen as the sole basis for imposition of
the leave of absence. Nevertheless, Graymont concluded the cessation ofWomack's medication
cleared the way for his tennination rather than for his reinstatement. 15 Such an implausible
decision is further evidence of a discriminatory motive.
Finally, with respect to disparate treatment, Givens continues to be employed as kiln
operator although it is apparent that he cannot perform the full range of the essential elements
identified in the job analysis. Yet Womack's inability to perform these same essential functions
purportedly justify Womack's termination.
Simply put, the record reflects:

Q. (By Mr. Womack) Mr. Wakin, from 1999 to 2001, did you
ever have any problem with me as an employee?
A. (By Mr. Wakin) No.
(Tr. 539).
Participation in a discrimination hearing before this Commission is sacrosanct. When
Graymont elects to tenninate Womack immediately following this hearing, reportedly
because Womack is not able to work with a reasonable accommodation, despite previously
accommodating Womack for two years, it does so at its own risk. Accordingly, the evidence

reflects Graymont's decision to terminate Womack effective October 22, 2002, is motivated,
at least in part, by Womack's protected activity.
In rejecting Graymont' s asserted justification as a pretext, I stress I am not substituting
my business judgement to resolve whether Womack's impainnent is amenable
to a reasonable accommodation. On the contrary, it was Graymont who detennined Womack
could perform his job with an accommodation. There are no objective diagnostic findings
demonstrating that Womack's back condition has deteriorated since he last worked in
September 2001. Nor has Graymont alleged any material change in Womack's impairment or
exertional limitations. It was only after Womack's intervening discrimination complaint and his
participation in this proceeding, that Graymont concluded Womack could no longer be
accommodated.

15

On September 21, 2001, Womack was advised the company was "temporarily
curtailing [his] work activities" because he "cannot be allowed to perform [his job] while taking
[his] drugs." Womack was informed he would "remain suspended without pay until this
situation can be resolved." (See Comp. Ex. 10).
263

I. Entitlement Date to Back Pay
The remaining issue concerns the appropriate effective date of back pay for
computational purposes. Although Womack's initial July 18, 2002, request for reinstatement
informed Graymont that he was no longer on medication, it did not include an acceptable current
physician's statement outlining his exertional limitations. On August 13, 2002, Womack
provided Graymont with Henriksen's August 9, 2002, workability report.
Graymont's subsequent requests for additional information, when viewed in context,
were insincere. These requests sought Henriksen's opinion as to whether Womack could
perform the essential functions of his job although Graymont knew Womack's physical activities
were significantly restricted. Performance of an independent job analysis, and Graymont's
request for additional medical information after August 13; 2002, only served to postpone
disclosure of the inevitable, i.e., that Graymont long ago decided to terminate Womack's
employment. Accordingly, Womack is entitled to relief as of August 13, 2002, when
Graymont received adequate relevant information concerning Womack's current exertional
limitations.

ORDER
In view of the above IT IS ORDERED that James Womack's discrimination complaint
concerning his reprimands, his five day suspension, and his suspension from September 21, 2001
through August 12, 2002, IS DENIED. Womack's discrimination complaint with respect to the
termination of his employment IS GRANTED with appropriate relief to be awarded as of
August 13, 2002.
·
This Decision on Liability is an interim decision. It does not become final until a
Decision on Relief is issued. Accordingly, IT IS FURTHER ORDERED that the parties
should confer before May 28, 2003, in an attempt to reach an agreement on the specific relief to
be awarded. The relief may consist of back pay as off August 13, 2002, and reinstatement to the
job position and duties Womack last performed on September 20, 2001, with equivalent pay and
benefits. Alternatively, the parties may agree to back pay as of August 13, 2002, plus monetary
damages representing economic reinstatement in lieu ofre-employment. If the parties agree to
stipulate to the appropriate relief to be awarded they shall file a Joint Stipulation on Relief on or
before June 18, 2003. An agreement concerning the scope and amount ofreliefto be awarded
shall not preclude either party from appealing this decision.

If the parties cannot agree on the relief to be awarded, the parties ARE FURTHER
ORDERED to file, on or before June 18, 2003, Proposals for Relief specifying the appropriate
relief to be awarded. For the purposes of calculating back pay, the parties are encouraged to
stipulate to an average weekly salary, including overtime. If the parties cannot reach a joint

264

stipulation, the parties should furnish documentation such as payroll records, pay subs or tax
returns to support their average weekly back pay calculation. IT IS FURTHER ORDERED
that each party should propose an appropriate lump sum monetary economic reinstatement in lieu
ofre-employment in this matter. After Petitions for Relief are filed, I will confer with the parties
to determine if there are disputed factual issues that require an evidentiary hearing.
Commission Rule 44(b), 29 C.F.R. § 2700.44(b), provides that the Judge shall notify the
Secretary in writing immediately after sustaining a discrimination complaint brought by a miner
pursuant to section 105(c)(3) of the Act. Consequently, the Secretary shall be provided with a
copy of this decision so that she may file a petition for assessment of civil penalty with this
Commission.

Jerold Feldman
Administrative Law Judge

Distribution: (Certified Mail)
James Womack, 410 East 60th Street, Tacoma, WA 98404
Robert Leinwand, Esq., Stole Rives, LLP, 900 S.W. Fifth Avenue, Suite 2600,
Portland, OR 97204
Mine Safety and Health Administration, Office of Assessments, 1100 Wilson Boulevard,
25 1h Floor, Arlington, VA 22209-2296
/hs

265

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

LAFAR.GE BUILDING
CHEMICAL CORPORATION,
Contestant

May28, 2003
CONTEST PROCEEDING
Docket No. CENT 2003-173-RM
Citation No. 6222293-03; 1108/2003

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, MSHA,
Respondent

Tulsa Plant
Mine ID 34-00026
ORDER OF DISMISSAL

Before: Judge Feldman
This contest case concerns Citation No. 6222293 issued on January 18, 2003, for an
alleged violation of the mandatory safety standard in section 56.14105, 30 C.F.R. § 56.14105,
governing the procedures for repair or maintenance of machinery or equipment. Citation
, No. 6222293 was issued because the mine operator's personnel are required to obtain dust
samples from a rotary kiln that rotates approximately 90 times per hour. In essence, the
provisions of section 56.14105 require machinery or equipment to be turned off and blocked
against hazardous motion prior to repair or maintenance unless motion or activation is necessary
for adjustments or testing. In such instances, personnel must be protected from hazardous
motion.
On May 2, 2003, the Secretary filed a Motion to Dismiss this contest matter because the
Mine Safety and Health Administration (MSHA) vacated Citation No. 6222293 on February 3,
2003, because the "standard [in section 56.14105] is not applicable." (Addendum vacating
Citation No. 6222293, February 3, 2003). Gary Burch, the miners' representative for
Boilermakers Local D-421, opposes the Secretary's decision to vacate the citation.
Without addressing the issue of Burch's standing to challenge the Secretary's action
vacating the citation, this Commission has concluded the Secretary has unreviewable discretion
to withdraw a citation charging a mine operator with a violation of her mandatory safety
regulations. RBK Construction, Inc., 15 FMSHRC 2099 (October 1993). Accordingly, the
Secretary's Motion to Dismiss the contest in Docket No. CENT 2003-173-RM IS GRANTED
and this proceeding IS DISMISSED.

Jerold Feldman
Administrative Law Judge
268

Distribution: (Certified Mail)
Gary Burch, Miners Representative, Lafarge Building Materials, 908 W. Memphis,
Broken Arrow, OK 74012
Susan M. Williams, Esq., Office of the Solicitor, U.S. Department of Labor,
525 S. Griffin Street, Suite 501, Dallas, TX 75202

/hs

269

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

May 30, 2003
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JOHN G. MUEHLENBECK,
Complainant

DISCRJMINATION PROCEEDING
Docket No. CENT 2002-230-DM
Eureka Materials Quarry
Mine I.D. 23-01840

v.

CONCRETE AGGREGATES, LLC,
Respondent

DECISION
Appearances:

Jennifer A. Casey, Esq., and Kristi L. Floyd, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver, Colorado, for
Complainant;
Gregory P. White, Esq., Clayton, Missouri, for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by the Secretary of
Labor on behalf of John G. Muehlenbeck against Concrete Aggregates, LLC, ("Concrete
Aggregates") under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §815(c)(2) (the "Mine Act"). A hearing in this case was held in Clayton, Missouri.
The parties presented testimony and documentary evidence and filed post-hearing briefs.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT
Muehlenbeck was hired by Concrete Aggregates in May 1999 to be the superintendent
at its Eureka Materials Quarry (the "quarry"). As superintendent, Muehlenbeck was the
number two man at the quarry and he reported directly to William ("Willie") Kopp, the
managing member of Concrete Aggregates. The quarry is a very small sand and gravel
operation on the edge of the St. Louis metropolitan area. Concrete Aggregates dredges
material from the bottom of a 35 acre, man-made pond using a barge; it cleans, sizes, and
prepares the dredged material, and sells the gravel and sand produced. Muehlenbeck
supervised four hourly employees. Because Muehlenbeck had previously been a union
carpenter, Concrete Aggregates paid him the prevailing carpenter's wage, making him the
highest paid employee at the quarry, even though he was a management employee.
270

Muehlenbeck was terminated from his employment with Concrete Aggregates on October 1,
2001. Muehlenbeck and the Secretary contend that he was terminated for engaging in
protected activities, but Concrete Aggregates argues that he was terminated for leaving the
quarry two hours early on Friday, September 28, 2001, without notice or permission.
William Kopp and his brother, Richard Kopp, own a number of related businesses in
the area. Richard Kopp is the managing member of Kirkwood Materials ("Kirkwood'), which
sells construction and landscaping material. Kopp-Ko is the holding company for both
operations. Kirkwood Materials has a sales outlet at the quarry. Although Kirkwood and
Concrete Aggregates are two separate corporations, the Kopp brothers coordinate the human
resource functions for both companies. Because both operations are small, they used Varsity
Group, a payroll provider, to handle payroll and other human resource functions. In May
2001, Gail Holden, a sales representative for Strategic Outsourcing, Incorporated ("SOI"),
approached the Kopp brothers about switching payroll providers. (Tr. 380-81). SOI could
provide better service for Concrete Aggregates and Kirkwood and also provide more generous
benefits to their employees, including workers' compensation benefits and an improved
401 (k) plan. (Tr. 378-79). Richard Kopp took the lead in negotiating the terms of service for
both Concrete Aggregates and Kirkwood employees.
Scott Frank, an area manager with SOI, testified that when a company uses SOI's
services, it acts as a co-employer with the host company. SOI provides employee benefits and
manages the payroll while the host company sets the terms and conditions of employment.
Concrete Aggregates describes SOI as an "employee leasing company'' that enables "smaller
companies to come together and pool their resources and create 'buying power' in order to
take advantage of greater benefits for employees." (CA Brief 4; Tr. 379-80). On September
19, 2001, William Kopp notified employees that Concrete Aggregates would be changing its
payroll and benefit provider to SOL Employees of Concrete Aggregates were combined with
employees of Kirkwood in order to secure one comprehensive benefit package. Concrete
Aggregates was the smaller of the two companies. SOI was to begin providing these services
in mid-October 2001.
Concrete Aggregates and Kirkwood scheduled a voluntary meeting on the evening of
September 20, 2001, at a nearby hotel to inform employees of the change. Representatives of
SOI were present to answer questions. No employees of Concrete Aggregates attended this
informational meeting. The next day William Kopp gave the employees of Concrete
Aggregates the pamphlets and paperwork that had been handed out at the meeting. This
packet of material included forms that employees had to sign. Some of the forms were routine
forms such as IRS W-2 forms. The form at issue in this case was entitled "Assigned
Employee Acknowledgments" ("employee acknowledgment form"). As the employees were
looking at this information packet, Jerry Rauscher, the mechanic on Muehlenbeck's crew,
showed Muehlenbeck language that concerned him. After they discussed the language,
Muehlenbeck became concerned with the form as well. A number of provisions in the
employee acknowledgment form concerned Rauscher, Muehlenbeck, and Bill Shurnacher,
271

who operated the plant and ran the loader on Muehlenbeck's crew. The most significant
provision that concerned them states, in part, as follows:
I agree that any legal complaint or dispute involving SOI,
Client, or any employee, officer, or director of SOI or Client (the
Arbitrating Parties), under whatever law, regarding my
employment, my application for employment, or any
termination from employment, will be submitted exclusively to
binding arbitration by a panel of either one or three neutral
arbitrators, which may be held in Charlotte, North Carolina, or
the capitol of the state in which I work, at the option of the party
demanding arbitration (or another mutually agreed location).
This means that any complaint or dispute will not be heard by a
court, a jury, or an administrative agency. I also agree that
having an administrative agency proceed purportedly on my
behalf would circumvent this agreement, therefore, I assign any
relief or recovery an administrative agency obtains purportedly
on my behalf from an Arbitrating Party to that Party.
(Exs. C-4, R-3). Concrete Aggregates' employees were concerned about the fact that they
could not use the Missouri court system, request a jury trial if they were severely injured, or
have Missouri government agencies intercede on their behalf. They were also concerned
about the provision requiring arbitration in North Carolina. Muehlenbeck was especially
concerned that, by signing the employee acknowledgment form, he would be waiving his
rights under the Mine Act and waiving his right to have MSHA or its inspectors offer him any
kind of assistance. An MSHA inspector had recently been at the quarry and discussed miners'
rights with employees so it was fresh in Muehlenbeck's mind. Muehlenbeck, Rauscher, and
Shumacher decided that they would not sign the employee acknowledgment form for the
above reasons. 1 (Tr. 85, 133, 213-14, 273). They signed all of the other forms and returned
them to William Kopp.
When Kopp discovered the next day that the employee acknowledgment form had not
been signed by these employees, he reminded them that the form needed to be signed before
SOI could begin providing payroll services. (Tr. 147-48, 213-14). Muehlenbeck advised
Kopp that the employee acknowledgment form violated provisions of the Mine Act and the
employees would not sign it. (Tr. 148-49, 215). Concrete Aggregates had copies of a booklet
at the quarry published by the Department of Labor entitled "A Guide to Miners' Rights and
Responsibilities under the Federal Mine Safety and Health Act of 1977" ("miners' rights
guide"). (Ex. C-5). When he left work that day, Muehlenbeck took a copy home to review

1

They had concerns about other provisions in the employee acknowledgment form including
a provision that stated that employees would get paid at the minimum wage if Concrete Aggregates
fails to pay SOI all moneys due under the contract between them.
272

and he highlighted those provisions in the booklet that he believed would be invalidated by the
employee acknowledgment form . Muehlenbeck presented the highlighted miners' rights
guide to William Kopp to show him the conflict between the employee acknowledgment form
and the rights afforded miners under the Mine Act. (Tr. 86-87, 216, 295, 440). Kopp
subsequently faxed portions of the guide to SOI. (Tr. 295-96, 485).
On Thursday, September 27, 2001, near the end of the shift, Kopp advised Concrete
Aggregates' employees that two representatives of SOI were at the quarry to answer any
questions they had about SOI and the employee acknowledgment form. Gail Holden and
Scott Frank of SOI, William Kopp, Muehlenbeck, Rauscher, and Shumacher attended this
meeting. The representatives of SOI downplayed the importance of the employee
acknowledgment form but, at the same time, stated that it had to be signed by everyone. Mr.
Frank called it a standard form agreement. (Tr. 91, 278). Mr. Frank stated that employees
could make changes to the wording, if they felt it was necessary. (Tr. 92-93, 332).
Muehlenbeck noted that the employee acknowledgment form includes language stating that no
modifications could be made to the agreement "unless signed by an authorized officer of
SOI." (Ex. C-4). There is no dispute that neither Mr. Frank nor Ms. Holden were authorized
officers of SOI.
The testimony concerning the discussions at this meeting varies significantly.
Muehlenbeck testified that the employees were pressured to sign the employee
acknowledgment form at the meeting and that when employees raised a question about it,
Frank tried to "brush it off' on the basis that the language "didn't mean what it said." (Tr. 9192). Muehlenbeck believed that Frank wanted to leave the meeting with signatures from all
three employees. Muehlenbeck stated that he raised issues about the rights of miners under
the Mine Act but that the SOI representatives never responded to these questions.
Muehlenbeck testified that the meeting got heated at times because he made clear that he was
not going to sign the employee acknowledgment form until all his concerns were addressed.
Muehlenbeck also testified that Frank told the employees that if they did not sign the
employee acknowledgment form, they might not get paid. (Tr. 95-97, 128). Muehlenbeck
understood this to mean that they could be fired for not signing. (Tr. 98). William Kopp did
not say much at the meeting. (Tr. 151 ). Muehl enbeck testified that near the end of the
meeting Kopp suggested that Muehlenbeck get an attorney to review the employee
acknowledgn1ent form and Kopp offered to pay the fees of this attorney. (Tr. 96, 135-36, 141,
151). Muehlenbeck did not take Kopp up on this offer.
Rauscher testified that the meeting became heated when the arbitration provision was
discussed. (Tr. 221). The SOI representatives kept asking "who are you going to sue?" (Tr.
221). One of Concrete Aggregates' employees responded " ifl can't bring in MSHA, OSHA,
or anyone on my behalf, why would I leave an arbitrating party [to] say my arm's worth only
$2,000 to you guys, but to a lawyer and jury it could be worth a bunch?" (Tr. 222). Rauscher
testified that the SOI representatives seemed to avoid answering any questions about MSHA.
He also testified that the SOI people indicated that any employee who did not sign the

273

employee acknowledgment form could not be guaranteed a paycheck. (Tr. 223-24). William
Kopp offered to hire an attorney to answer any questions, but Rauscher did not think an
attorney was necessary. Frank told the assembled employees to "scratch out the parts you
don't like" in the paragraph, but the employees kept asking who had the authority to approve
changes to the form. (Tr. 225). Rauscher testified that he felt pressure to sign the form at the
meeting because it was a condition of his employment. (Tr. 227-28).
Shumacher testified that he decided to sign the employee acknowledgment form during
the meeting and that after he signed it, he left the meeting. (Tr. 276). He signed the form
because Ms. Holden assured him that he had probably signed a similar form with the Varsity
Group. Shumacher also had a private conversation with Kopp during the meeting that
satisfied him. (Tr. 278-79). He could not specifically remember any discussions about
MSHA but he is sure that it came up. Id.
Frank testified that he never heard anyone talk about "miners' rights" or "MSHA" at
this meeting. (Tr. 330, 339). The issues raised by the employees centered around their
concerns that any arbitration would be held in North Carolina. (Tr. 330-31 ). Frank also
testified that, because he had dealt primarily with Kirkwood, he did not know at the time of
the meeting that Concrete Aggregates engaged in mining. He stated that SOI does not
generally work with companies engaged in mining because of higher workers' compensation
lmowledge of the rights of miners under the
costs.2 (Tr. 335). He admitted that he has
Mine Act. (Tr. 331 ). He also testified that he told the assembled employees that they could
make changes to the employee acknowledgment form and he would "run them up the
flagpole" to the corporate offices in Charlotte. (Tr. 332-33) When Muehlenbeck crossed off
the entire arbitration paragraph, quoted above, Frank advised him that such a major change
would probably not fly. Frank denied that anyone from SOI threatened to withhold an
employee's paycheck ifthere was a delay in signing the forms or that he pressured anyone to
sign the form during the meeting. (Tr. 337, 341).

no

William Kopp testified that he did not believe that the employee acknowledgment
form would infringe on the rights of miners. (Tr. 395-96). He further testified that he would
not do anything to go against the Mine Act and that, if SOI attempted to prevent a miner from

2

It is clear that SOI was aware that some of the employees at Kirkwood/Concrete
Aggregates engaged in mining. Several SOI employees visited the quarry prior to October 1, 2001.
Concrete Aggregates faxed several pages of the miners' rights guide to SOI prior to the meeting on
September 27. (Tr. 295-96). In addition, SOI' s director ofloss control visited the facility in January
2002 to perform a safety survey for SOI and his report mentions the quarry and MSHA compliance.
(Ex. R-4). In a· letter to counsel for the Secretary dated February 15, 2002, the general counsel for
SOI stated that SOI never agreed to provide services to those employees at the quarry engaged in
mining. (Ex. R-1 ). Although it appears that SOI does not generally accept business from high risk
operations such as mining, SOI knew or should have !mown that some ofthe employees at the quarry
were miners. (Tr. 383-84).

274

asserting his rights under the Mine Act, he would cancel the contract with SOI. Id. Kopp
testified that he did not understand exactly what Muehlenbeck was getting at during this
meeting and that Muehlenbeck seemed to be concerned that he wanted to retain his right to a
jury trial in St. Louis if he was injured on the job. (Tr. 397-98). He admits that Muehlenbeck
raised Mine Act issues at the meeting. (Tr. 485). Kopp stated that, near the end of the
meeting, he suggested that anyone who had any concern could hire an attorney to review the
employee acknowledgment form at his cost. (Tr. 398-99). He testified that there was some
urgency in getting the signed employee acknowledgment forms to SOI but he did not believe
that the forms had to be signed the day of the meeting. (Tr. 411 ).
On the morning of Friday, September 28, 2001, Muehlenbeck reported to work as
usual. During his lunch break, he was sitting near the Concrete Aggregates office at the
quarry with other employees when Brandy Lauer, the secretary for Concrete Aggregates,
approached the men holding a fax she had received from the main office of Kirkwood. She
read the fax out loud to the men. The fax was a reminder that the employee acknowledgment
f01m had to be signed and returned to Kirkwood's main office. The fax stated that employees
could put the words "under protest" under their signature. (Tr. 104, 228-29).
Muehlenbeck became distraught and angry that he was again being asked to sign the
employee acknowledgment form. (Tr. 105-06, 229-31, 253, 298). Frustrated that his concerns
were not being addressed, Muehlenbeck went into the Concrete Aggregates office, put his
two-way radio on the desk, and left the quarry to go home. He left at about 1 :30 p.m., two
hours before his normal quitting time of 3:30 p.m. Lauer saw him leave, but Muehlenbeck did
not tell Kopp or anyone else at the quarry that he was leaving. (Tr. 156-58, 427). Shortly
thereafter, Rauscher also left the quarry.
The operator of the dredge on September 28, 2001, was Bob White, who had been
working at the quarry for six weeks.3 (Tr. 413). The pond covers about 35 acres as illustrated
in exhibit R-10. (Tr. 418). Shortly after Muehlenbeck left the quarry, a hydraulic hose on the
dredge ruptured spewing hydraulic oil over the dredge which caused the hose used to vacuum
up material from the bottom of the pond to become clogged with material. (Tr. 414-17). Mr.
White attempted to get Muehlenbeck on the two-way radio so that he could provide
assistance. (Tr. 421). Muehlenbeck did not respond to his call. Muehlenbeck and Rauscher
are the only mechanics at the quarry. William Kopp heard the call and he tried to find
Muehlenbeck and Rauscher. (Tr. 424). Kopp believes that, by leaving the quarry without
permission or notice, Muehlenbeck put White in jeopardy. (Tr. 419, 426).
Although hoses rupture on the dredge with some frequency, Kopp testified that the
matter must be attended to quickly, especially when the vacuum line is clogged. (Tr. 422).
Kopp stated that he prefers to have two dredge operators and a mechanic at the quarry

3

Bob White is the brother of Gregory White, counsel for Concrete Aggregates. Bob White
signed the employee acknowledgment form.
275

whenever the dredge is being operated. (Tr. 418-19, 423). Kopp and other employees worked
over the weekend cleaning out all of the product lines and getting the dredge in operating
order. (Tr. 425-26). Kopp believes that if Muehlenbeck had not left the property,
Muehlenbeck would have been able to tell White via the radio how to get the lines cleared
before he lost all of the hydraulics. (Tr. 425-26). Muehlenbeck did not attempt to call or
otherwise get hold of Kopp that day or over the weekend.
When Muehlenbeck came to work on Monday, October 1, 2001, William Kopp asked
him, "Where did you go Friday?" (Tr. 108). Muehlenbeck did not say where he had gone but
told Kopp about the fax that Ms. Lauer read to the employees. Muehlenbeck told Kopp that
he "got pissed off and left." Id. Muehlenbeck also said, "I'm not going to sign that piece of
paper, Willie." Id. Kopp responded, "Fine, get your tools, gather your tools, turn in your
keys." Id. Kopp terminated the employment ofMuehlenbeck and Rauscher that morning. 4
Kopp testified that he terminated Muehlenbeck because he left the quarry without permission.
(Tr. 376-77; Ex. R-5). He stated that a supervisor walking off the job is a very serious
offense. Muehlenbeck and the Secretary believe that Muehlenbeck was terminated for
refusing to sign the employee acknowledgment form.

II. DISCUSSION WITH FURTHER 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, 95th Cong., !51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2"d Sess., Legislative History ofthe Federal
Mine Safety and Health Act of I 977 at 623 (1978) ("Legis. Hist."). "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 ofLabor on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797800 (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

4

The Secretary offered to file a discrimination complaint on behalf of Rauscher but he
declined to pursue the case because he had obtained employment elsewhere. Rauscher testified that
Kopp told him that he would "eventually'' have to sign the employee acknowledgment form. (Tr.
235).
276

1981); Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine
operator may rebut the primafacie case in this manner 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 primafacie 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 (41h Cir. 1987).

In her brief, the Secretary states that the "refusal to sign a document that conflicts with
statutorily protected rights is not an issue that has been addressed by the Commission." (S. Br.
13). She argues that the facts giving rise to Muehlenbeck's termination and subsequent claim
of discrimination "most closely resemble that of a work refusal - an activity protected under
section 105(c) of the Mine Act." Id. She cites the legislative history of the Mine Act which
states that the protections of section 105(c) should be interpreted to include "the refusal to
work in conditions which are believed to be unsafe or unhealthful and the refusal to comply
with orders that are violative of the Act. ... " ("Legis. Hist. at 623"). The Secretary contends
that Muehlenbcck's refusal to comply with Concrete Aggregates' order to sign the employee
acknowledgment form was protected activity because the terms of the form violated section
105(c) of the Mine Act. She maintains that Complainant established that his termination was
the direct result of Muehlenbeck's refusal to sign the form. The Secretary argues that
Concrete Aggregates grossly exaggerates the problems created by Muehlenbeck's early
departure from the quarry on September 28 and that this justification for terminating him is
pretext to mask the unlawful reason for the termination. The Secretary contends that
Muehlenbeck's departure from the quarry was "a direct, immediate, and reasonable response
to the unlawful demands of his employer." (S. Br. 25). Consequently, Muehlenbeck should
be granted "leeway" for his "impulsive behavior" because it was in response to Concrete
Aggregates' "wrongful provocation." (S. Br. 26) (citation omitted).
Concrete Aggregates argues that ther~ is no evidence that the arbitration clause in the
employee acknowledgment form was enforceable as to the Mine Safety and Health
Administration or this Commission. There is no evidence that signing the form would have
interfered with or abrogated Muehlenbeck's Mine Act rights. Complainant merely established
that Muehlenbeck was bothered by the form, that he had difficulty explaining to William
Kopp why this form concerned him, and that he walked off the job as a result of a fax received
in the office without discussing his concerns with Kopp. Concrete Aggregates contends that
the Secretary failed to establish aprimafacie case.

277

A. Protected Activity
I agree with the Complainant that the facts in this case most closely resemble a work
refusal. The Commission and the courts have recognized the right of a miner to refuse to
work in the face of perceived hazards. See Price v. Monterey Coal Co., 12 FMSHRC 1505,
1514 (Aug. 1990); Secretary of Labor on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC
516, 520 (Mar. 1984), afj'd mem., 780 F.2d 1022 (6th Cir. 1985). A miner refusing work is
not required to prove that a hazard actually existed. See Robinette, 3 FMSHRC at 810-12. In
order to be protected, work refusals must be based upon the miner's "good faith, reasonable
belief in a hazardous condition." Id. at 812; accord Gilbert v. FMSHRC, 866 F.2d 1433, 1439
(D.C. Cir. 1989). The complaining miner has the burden of proving both the good faith and
the reasonableness of his belief that a hazard existed. See Robinette, 3 FMSHRC at 809-12;
Secretary of Labor on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993, 997 (June
1983). A good faith belief "simply means honest belief that a hazard exists." Robinette, 3
.
FMSHRC at 810.
In this case, Muehlenbeck is not required to prove that the employee acknowledgment
form would actually interfere with his Mine Act rights; he just has to show a good faith
reasonable belief that the arbitration clause on the form would interfere with these rights. I
find that Muehlenbeck met his burden of proof on this issue. The language in the arbitration
clause is rather broad in its scope. A layman, unfamiliar with the law as it has developed
under the Mine Act, could reasonably believe that a miner could no longer seek the
protections afforded by the Mine Act. I find that Mr. Muehlenbeck's belief was reasonable
and that he held that belief in good faith. He was genuinely concerned that by signing the
form he could be waiving his rights under the Mine Act. Consequently, I find that he engaged
in protected activity when he raised questions about the effect of the arbitration clause on his
rights under the Mine Act.
When "a miner expresses a reasonable, good faith fear in a hazard, the operator has a
corresponding obligation to address the perceived danger." Gilbert v. FMSHRC, 866 F. 2d
1433, 1440 (D.C. Cir 1989). If an operator adequately addresses a miner's concerns so that
"his fears reasonably should have been quelled," an otherwise reasonable work refusal can
become unreasonable. Id. at 1441. The Secretary argues that Concrete Aggregates "wholly
failed to address Muehlenbeck's concerns regarding the arbitration" provision. (S. Br. 17).
She points to the fact that Kopp failed to sit down with the employees and explain the terms of
the provision. When Muehlenbeck gave Kopp a highlighted copy of the miners' rights guide,
Kopp failed to respond. Instead, Kopp arranged a meeting with SOI representatives who had
no knowledge of an employee's rights and responsibilities under the Mine Act. These
representatives were not empowered by SOI to authorize any changes to the employee
acknowledgment form. The SOI representatives simply tried to appease Muehlenbeck by
saying that it was a "standard form" that he should not be concerned about. Muehlenbeck left
the meeting with no gre<l;ter understanding of the impact of the arbitration language on his
Mine Act rights than before. The Secretary contends that Kopp did nothing after the meeting
278

to allay employee concerns. She characterizes Kopp's offer to pay for an attorney to review
the employee acknowledgment form as an effort to shift responsibility to the employees to
make sure that the form would not impinge on their rights.
I believe that Mr. Kopp simply wanted this dispute to go away. I credit his testimony
that he would not let SOI trample the rights of miners. I conclude that, because SOI would not
have a continuing presence at the mine, Kopp believed that once the forms were signed, with
or without changes in the language, SOI would not have any dealings with MSHA and would
not be in a position to quash the rights ofminers. 5 Nevertheless, Kopp never sat down with
Muehlenbeck and the other employees to tell them that Concrete Aggregates would continue
to allow them to exercise their rights under the Mine Act as before. Instead, he relied on SOI
to address the concerns. When it appeared during the meeting that SOI was not being
successful, he suggested that they find an attorney who could provide legal advice and he
agreed to pay the costs for the attorney. It is quite obvious that this gesture did not allay the
concerns ofMuehlenbeck or Rauscher. I find that Concrete Aggregates did not adequately
address Muehlenbeck's concerns so that they "reasonably should have been quelled."
B. Adverse Action

The primary issue to be resolved is whether Muehlenbeck was terminated, at least in
part, because he engaged in this protected activity. If his termination was motivated in any
part by his protected activities, then Concrete Aggregates must show its termination of
Muehlenbeck was also motivated by unprotected activities and that it would have taken these
actions for the unprotected activity alone.
I find that the preponderance of the evidence demonstrates that Concrete Aggregates
terminated Muehlenbeck because he left the quarry on September 28 without permission or
telling Kopp that he was doing so. I reach this conclusion for the reasons discussed below.
Mr. White operates a rotating cutting head at the end of a long boom on the dredge that
extends under the water to the bottom of the pond. (Ex. R-8). The cutting head breaks up the
rock on the bottom and this broken material is vacuumed up through the boom. The material
is transported across the surface of the pond to the plant through piping that extends along
floating buoys. (Ex. R-10). The dredge was the sole means of production at the quarry at the
time of this incident. If the cutting head remains under water for a long time without rotating

5

In a letter to counsel for the Secretary, the General Counsel of SOI stated that the service
agreement between SOI and its clients makes clear that the agreement does not relieve the client "of
its duties and legal obligations with respect to worksite safety and compliance with legal obligations
regulating worksite safety and labor." (Ex. R-1, p.2). The agreement further provides that the
"client will comply with all federal, state, and local laws and regulations applicable to its
operations." Id
279

it can become stuck in the material at the bottom of the pond. (Tr. 422-23). Thus, repairing
hydraulic lines on the dredge must be attended to quickly.
I credit Kopp's testimony that he tries to have two dredge operators present at the
quarry whenever it is operating. (Tr. 418-19, 423, 480). In September 2001, Bob White was
still an inexperienced dredge operator and Muehlenbeck was the only experienced dredge
operator. Whenever White had a problem, Muehlenbeck would provide assistance over the
two-way radio or by going on board the dredge. Kopp testified that if a dredge operator called
in sick, he usually did not operate the dredge that day. (Tr. 481-82). Muehlenbeck and
Rauscher were the only two mechanics qualified to repair equipment at the quarry.
After Muehlenbeck and Rauscher left the quarry, the dredge broke down. Kopp
discovered that his superintendent, who is also his experienced dredge operator and a qualified
mechanic, had walked off the job without notice and that the other mechanic had also left
without notice. An inexperienced operator was on the dredge asking for help. The actions of
Muehlenbeck and Rauscher placed Kopp in a difficult position and could have endangered
Mr. White.
When Muehlenbeck returned to work on Monday, Kopp asked, "Where did you go
Friday?" Muehlenbeck did not provide a rational explanation but simply mentioned the fax
and said that he was "pissed off' about it. (Tr. 108). Kopp could not fathom why
Muehlenbeck would leave his post two hours early without permission because of the dispute
over the form. He was "shocked" that Muehlenbeck left the property without permission. (Tr.
429). Muehlenbeck was in a trusted and vital position at the quarry and Kopp depended on
him to oversee operations at the quarry. (Tr. 427-29). Concrete Aggregates only employed
Muehlenbeck, Rauscher, Shumacher, White, and Brandy Lauer. By leaving the quarry,
Muehlenbeck and Rauscher created a significant problem for Kopp. Muehlenbeck's departure
was particularly troublesome for Kopp because he supervised the operations at the quarry.
In determining whether a mine operator's adverse action is motivated in any part 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
Labor on behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November
1981), 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).
In this case, I find that Kopp had knowledge ofMuehlenbeck's protected activity.
Kopp was somewhat confused as to why Muehlenbeck was so concerned because Kopp did

280

not intend to reduce the rights of miners at the quarry after the SOI contract was put into place.
Nevertheless, Muehlenbeck gave Kopp a copy of the miners' rights guide so he knew or
should have known that Muehlenbeck was concerned that the employee acknowledgment
form would indeed infringe upon his rights as a miner. There is also a very close coincidence
in time between the protected activity and the adverse action. Kopp did little to address
Muehlenbeck's concerns.
Whether Concrete Aggregates demonstrated animus or hostility toward the protected
activity is a closer issue. On one hand, Kopp believed that the employee acknowledgment
form would not change anything with respect to miners' rights. There is absolutely no proof
that Kopp is.hostile toward the rights of miners or that he would become hostile under the SOI
agreement. In addition, Kopp offered to pay for an attorney to look into the matter for
Muehlenbeck. On the other hand, it is evident that Kopp was perplexed and troubled by
Muehlenbeck's refusal to sign the employee acknowledgment form. I agree with Concrete
Aggregates that Kopp did not try to force Muehlenbeck to sign the form right away. Kopp
knew that, if Muehlenbeck retained an attorney to review the form, there would be a
considerable delay before the matter was resolved. Kopp never told Muehlenbeck that ifhe
did not sign by a particular date he would be terminated, he would not be paid, or he would be
disciplined. (Tr. 409-10). Nevertheless, there was some urgency inasmuch as the services of
the Varsity Group were set to expire in mid-October and the contract with SOI was set to take
effect that date. Concrete Aggregates and SOI put pressure on the employees to sign the
employee acknowledgment form. Workers compensation coverage is mandatory in Missouri
and the SOI service agreement would not become effective until all of the paper work was
completed. The fax set to the quarry by the office manager for Kirkwood suggested that the
employees sign the form "under protest." Although there is no evidence in the record as to
who made that suggestion, it must have been made by Richard Kopp, perhaps after
consultation with William Kopp. I find that there was some hostility toward Muehlenbeck's
continuing objection to signing the employee acknowledgment form.
Disparate treatment does not really come into play because this case presents a unique
set of circumstances. The fact that Muehlenbeck had not been disciplined before and that he
had a good record of perfo1mance reviews is irrelevant. The only person in similar
circumstances was Rauscher who was tenninated along with Muehlenbeck.
Resentment had been building at the quarry as a result of the dispute over the
employee acknowledgment form. For the reasons set forth above and because Muehlenbeck
discussed the fax with Kopp just before he was terminated, I find that Muehlenbeck's
continuing refusal to sign the form may have played some part in Kopp's decision to tenninate
him. Because of the nature of the conversation on the morning of October 1, the record in this
case makes it impossible to conclude that Muehlenbeck's refusal to sign the employee
acknowledgment form was not considered by Kopp. Consequently, I find that Concrete
Aggregates did not establish that the termination ofMuehlenbeck was in no part motivated by
the protected activity. As a result, I must analyze the case as a "mixed-motive" case.

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As the Secretary states, in a mixed-motive case:
It is not sufficient for the employer to show that the miner
deserved to have been fired for engaging in unprotected activity;
if the unprotected conduct did not originally concern the
employer enough to have resulted in the same adverse·action,
we will not consider it. The employer must show that he did in
fact consider the employee deserving of discipline for engaging
in unprotected activity and that he would have disciplined him
in any event.

Robinette, 3 FMSHRC at 819-19. An operator can try to establish this defense "by showing,
for example, past discipline consistent with that meted out to the alleged discriminatee, the
miner's unsatisfactory past work record, prior warnings to the miner, or personnel rules or
practices forbidding the conduct in question." Bradley v. Belva Coal Co., 4 FMSHRC 982,
993 (June 1982).
I find that Muehlenbeck's termination was precipitated by the fact that he left without
notice or permission coupled with the fact that he could not explain his absence. If
Muehlenbeck had provided Kopp with an explanation on the morning of October 1, he would
not have been terminated. If, for example, Muehlenbeck had to rush to the hospital because a
relative had been in a serious auto accident, Kopp would not have fired him. If there had been
no dispute over the employee acknowledgment form and Muehlenbeck left the quarry two
hours early because, for example, he was angry that Kopp would not let him take a vacation
day on the following Friday, Kopp most certainly would have terminated Muehlenbeck. There
is no evidence, or even a suggestion in the record, that Muehlenbeck would have been fired
for refusing to sign the employee acknowledgment form ifhe had remained at work on
September 28. The evidence makes clear that Kopp decided to terminate Muehlenbeck
because he left the quarry in anger without explanation or permission.
There is no evidence of past discipline "consistent with that meted out" to ·
Muehlenbeck because no employee had ever left the quarry two hours early in a fit of anger
before. The Secretary contends that Muehlenbeck frequently left early to buy parts needed at
the quarry. Such conduct does not help support the Secretary's argument. When
Muehlenbeck left early to get parts, he was performing work for his employer, he generally
used bjs radio to notify others that he was going and to ask if anyone needed anything, and he
did not leave two hours early. Muehlenbeck simply left early enough to run by a parts store on
the way home to buy supplies or parts he would need the next day. That Kopp permitted
Muehlenbeck to buy supplies in that manner is not inconsistent with his termination on
October I.
As discussed above, "unsatisfactory past work record, prior warnings to the miner, or
personnel rules or practices forbidding the conduct in question" is not relevant under the facts

282

of this case. Muehlen beck was not terminated for a poor work record or infractions that
would be subject to past discipline. He was terminated because he left work two hours early
without notice or permission in a fit of anger. His behavior displayed a serious lack of
judgment for a quarry superintendent. Based on the record in the case, I hold that Concrete
Aggregates' termination of Mr. Muehlenbeck was primarily motivated by his unprotected
activity and that it would have terminated him for the unprotected activity alone.

C. Provocation
The Secretary contends that Muehlenbeck's "impulsive behavior" in leaving the quarry
should be overlooked because he was wrongfully provoked by Concrete Aggregates. The
Commission has "recognized the inequity of permitting an employer to discipline an employee
for actions which the employer provoked." Sec '.Y of Labor on behalfof McGill v. US. Steel
Mining Co., 23 FMSHRC 981, 992 (Sept. 2001). A Commission judge is "obligated to
determine whether the actions for which the miner was disciplined were provoked by the
operator's response to the miner's protected activity...." Id "An employer cannot provoke
an employee to the point where she commits such an indiscretion as is shown here and then
rely on this to terminate her employment." NLRB v. M & B Headwear Co., 349 F.2d 170, 174
(4111 Cir. 1965). "The more extreme an employer's wrongful provocation the greater would be
the employee's justified sense of indignation and the more likely its excessive expression."
Id
"Whether an employee's indiscreet reaction upon being provoked is excusable is a
question that depends on the particular facts and circumstances of each case." Sec '.Y of Labor
on behalf ofBernardyn v. Reading Anthracite Co., 22 FMSHRC 298, 306 (March 2000).
Thus, I must determine whether the facts in this case, when viewed in their totality, place
Muehlenbeck's conduct within the scope of the "leeway" the courts grant employees whose
"behavior takes place in response to an employer's wrongful provocation." Id. at 307-08
(citation omitted). I find that Muehlenbeck should not be granted leeway in this instance. The
incident that allegedly provoked Muehlenbeck was the reading of a fax by Ms. Lauer that had
been sent by the office manager at Kirkwood. The fax reminded Muehlenbeck and Rauscher
that they needed to get the form signed. (Tr. 293). The employees were told that they could
sign the employee acknowledgment form ''under protest." At this point, Muehlenbeck became
enraged, threw the company radio on the desk, and left the mine. Muehlenbeck testified that
he was "real upset." (Tr. 106). He did not attempt to find Kopp to discuss the matter, he just
left the property in anger and disgust.
Although the employee acknowledgment form was a point of contention between
Muehlenbeck and Concrete Aggregates, the reading of a fax about the form by the company
secretary was not the kind of provocation that would justify Muehlenbeck abandoning his job
for the day. Indeed, because the fax suggested that he sign the form "under protest," it is
apparent that the company was still trying to reach an accommodation with him over the issue.
There had been no indication made to Muehlenbeck from Kopp or anyone else at Concrete
283

Aggregates or Kirkwood that his job was on the line or that his rights as a miner would be
curtailed upon the signing of the form. Complainant has not established that Muehlenbeck's
"sense of indignation" was justified or that the "excessive expression" of his anger had been
reasonably provoked.
The facts in this case can be contrasted with the facts in Bernardyn. In that case, Mr.
Bemardyn had refused to drive a truck on a muddy and sbppery road at a speed that he
considered to be unsafe. When his supervisor ordered him to drive faster, Bemardyn radioed
the union safety committeeman and, during this radio conversation, cussed out his supervisor.
Bemardyn was fired for using profanity and threatening his supervisor over the radio. The
Commission remanded the case to the administrative law judge to make findings on the
provocation issue. 22 FMSHRC at 307. The Commission noted that "[h]ad Bemardyn
complied with [his supervisor's] instruction to drive faster, it would have put him in harm's
way." Id In the present case, Muehlenbeck was not being asked to perform a task that was
unsafe. There was no immediacy in the situation from Muehlenbeck' s perspective.
Muehlenbeck knew or should have known that the issue surrounding the employee
acknowledgment form had not been resolved at the meeting on September 27 and that his
employer would be bringing it up again. There is nothing to indicate that the suggestion
contained in the fax that Muehlenbeck sign the employee acknowledgment form "under
protest" was anything but a good faith response from the company to Muehlenbeck' s
concerns. The fax was not hostile or threatening. Simply put, the fax and the company's
attempts to resolve the issues surrounding the employee acknowledgment form were not
''wrongful provocations" and Muehlenbeck's response, abandoning his position at the quarry,
was excessive and unreasonable.

III. ORDER
For the reasons set forth above, the complaint of discrimination filed by the Secretary
of Labor on behalf of John G. Muehlenbeck against Concrete Aggregates, LLC, under section
105(c) of the Mine Act is DISMISSED.

Richard W. Manning
Administrative Law Judge

284

Distribution:

Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
Gregory P. White, Esq., 8000 Bonhomme Ave, Suite 316, Clayton, MO 63105-3515
(Certified Mail)

RWM

285

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue , N.W., Suite 9500
Washington, DC 20001

May 30, 2003
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2002-187-M
A.C. No. 41-03751-05516
Docket No. CENT 2002-188-M
A.C. No. 41-03751-05517
Docket No. CENT 2002-249-M
A.C. No. 41-03751-05518

v.

Docket No. CENT 2002-266-M
A.C. No. 41-03751-05519

BIG BUCK ASPHALT,
Respondent

Docket No. CENT 2003-18-M
A.C. No. 41-03751-05520
Docket No. CENT 2003-91-M
A.C. No. 41-03751-05522
Phelps Pit
ORDER ON RECONSIDERATION
APPROVING SETTLEMENT MOTION
Before: Judge Feldman
These cases are before me upon petitions for assessment of civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). The Secretary has filed a
motion to approve a settlement agreement and to dismiss these matters. A reduction in civil
penalty from $48,262.00 to $12,065.00 is proposed. The parties have proposed that the agreed
upon $12,065.00 civil penalty will be paid in an initial installment of $2,500.00, with the
remaining $9,565.00 to be paid in nineteen monthly installments. The proposed substantial
reduction and extended payment schedule are based on Big Buck Asphalt's alleged financial
condition that reportedly precludes its ability to pay a higher civil penalty.

286

In support of its assertion that payment of a higher penalty would impact on its
ability to remain in business, the parties rely on a financial statement for the year ending
February 28, 2002, for Four G. Asphalt, Inc., d/b/a Big Buck Asphalt, prepared by a certified
public accountant. The financial statement fumished by the Secretary lacks the Accountant's
Review Report designated as page 1 in the Table of Contents. Consequently, the financial
statement does not reflect whether the information contained therein was audited. In this regard,
the financial statement notes that the reported amounts of revenues and expenses are based on
management "estimates and assumptions." Unaudited financial statements do not provide a basis
for establishing payment of a civil penalty will adversely affect a mine operator's ability to
continue in business. See Spurlock Mining Co., Inc., 16 FMSHRC 697, 700 (April 1994).
The financial statement reflects gross income of $1,276, 154.00 and an unspecified "cost
ofrevenue" of $1,304,010.00 resulting in a reported loss of $27,856.00. The financial statement
reflects Pete Gallegos, Sr., is the President of Big Buck Asphalt. The financial statement further
reflects that Pete Gallegos Paving, Inc., "is the parent owner" and "primary customer" of Big
Buck Asphalt. Javalina Ready-Mix, Inc., also owned by Pete Gallegos Paving, Inc., also is a
significant customer of Big Buck Asphalt.
The parties' Motion to Approve Settlement was denied on February 26, 2003.
25 FMSHRC 101. The motion was denied because of outstanding questions concerning the
relationship between Big Buck Asphalt and Pete Gallegos Paving, Inc., that may impact on
whether there is a financial hardship that justifies the structured payment schedule and substantial
reduction in the civil penalty proposed by the parties. Consequently, the February 26, 2003,
Order denying the approval of the settlement terms requested the submission of more detailed
financial information, including audited financial statements. 25 FMSHRC at 102.
On March 25, 2003, counsel for Big Buck Asphalt replied that, as a consequence of its
dire financial condition, the company "cannot afford the luxury of having audited financial
statements." (Resp. To Feb. 26, 2003, Order, at p.2). Big Buck provided additional assurances
that its financial condition precluded payment of a higher civil penalty.
On May 30, 2003, the Secretary's counsel reiterated her support of the parties' proposed
settlement terms. In support of the settlement agreement, the Secretary relies on the unaudited
financial statement for the business year ending February 28, 2002. As additional support, the
Secretary notes a letter from CitiCapital Commercial Corporation identifying a Big Buck Asphalt
debt that is in default.
While I remain skeptical, given the additional assurances, I will not interfere with the
parties' settlement in these matters. Accordingly, based on the representations and
documentation submitted in these proceedings, I conclude that the proffered settlement is not
inconsistent with the penalty criteria set forth in Section 110(1) of the Act. WHEREFORE,
the motion for approval of settlement IS GRANTED. Accordingly, on reconsideration,
IT IS ORDERED that the respondent pay a total civil penalty of $12,065.00.
287

Pursuant to the parties' agreement, payment is to be made in twenty (20) monthly
installments. The first installment shall be $2,500.00 payable on July 1, 2003. The remaining
nineteen (19) installments shall be paid at the rate of $500.00 per month payable on the first of
each month beginning on August 1, 2003, with the exception of the last payment which shall be
in the amount of $565.00. Failure to abide by this payment schedule will result in the remaining
balance becoming immediately due and payable . .Upon timely payment of the entire $12,065.00
civil penalty, these cases ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor,
525 South Griffin Street, Suite 501, Dallas, TX 75202
Pete Gallegos, Sr., President, Big Buck Asphalt, 4320 Trade Center Blvd., Laredo, TX 78041,
Donato D. Ramos, Esq., Attorney At Law, Walker Plaza, Suite 100, 5810 San Bernardo Ave.,
Laredo, TX 78041
/hs

288

ADl\fiNISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

May 30, 2003

CDK CONTRACTING COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 2001-420-RM
Citation No. 7935401; 4/23/2001
Docket No. WEST 2001-421-RM
Order No. 7935402; 4/23/2001

v.
Docket No. WEST 2001-422-RM
Order No. 7935403; 4/23/01
Docket No. WEST 2001-423-RM
Order No. 7935404; 4/23/2001
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEST 2001-424-RM
Order No. 7935406; 4/23/2001
Docket No. WEST 2001-425-RM
Order No. 7935407; 4/23/2001
Docket No. WEST 2001-426-RM
Citation No. 7935408; 4/23/2001
Docket No. WEST 2001-427-RM
Citation No. 7935409; 4/23/2001
Docket No. WEST 2001-428-RM
Citation No. 79425 19; 4/23/2001
Mine ID 05-00037 L35
Portland Plant/Quarry

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMfNISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2002-461-M
A.C. No. 05-00037-05506 L35
289

Docket No. WEST 2002-464-M
A.C. No. 05-00037-05509 L35

v.

Docket No. WEST 2003-5-M
A.C. No. 05-00037-05511 L35

CDK CONTRACTING COMPANY,
Respondent

Portland Plant & Quarry
ORDER GRANTING, IN PART, MOTION TO COMPEL
CDK Contracting Company filed a motion to compel the Secretary to produce (l) any
Special Assessment Review Forms that were prepared with respect to the citations and orders
contested in these cases; and (2) the Special Investigation file relating to Citation No. 7935401
and Order No. 7935402.

I. Special Assessment Review Forms.
CDK Contracting states that these forms may contain factual information that is relevant
to the penalty criteria and that it is entitled to these forms in preparation of its defense. The
Secretary contends that these forms are irrelevant to these proceedings because Commission
judges assess penalties de novo. She also contends that the forms are protected by the
deliberative process privilege. She maintains that they are subject to the deliberative process
privilege because they contain predecisional, deliberative recommendations made by the MSHA
inspector to his supervisors about whether a special assessment should be initiated.
The Secretary's special assessment process in 30 C.F.R. § 100.5 is totally irrelevant in
these proceedings. Commission administrative law judges assess penalties taking into
consideration the six penalty criteria in section 11 O(i) of the Mine Act, 30 U.S.C. § 820(i),
without regard to the Secretary's special assessment provisions. If I find that the Secretary has
established violations in these cases, I will assess each penalty based only on the penalty criteria
without taking into consideration how the Secretary assessed the violation.
The Special Assessment Review Forms contain facts that the MSHA inspector presents to
his supervisor to support a special assessment. Thus, these forms may contain factual
information that relates to the penalty criteria. The deliberative process privilege protects
communications between subordinates and supervisors within the government that are
"antecedent to the adoption of an agency policy." Contests of Respirable Dust Sample Alteration
Citations, 14 FMSHRC 987, 992 (June 1992) (citation omitted). The deliberative process
privilege "covers recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than the policy of
the agency." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
Documents that are protected by the privilege "are those which would inaccurately reflect or
prematurely disclose the views of the agency, suggesting as agency position that which is as yet
290

only a personal position." Id. Nevertheless, "even if the document is predecisional at the time it
is prepared, it can lose that status if it is adopted, formally or informally, as the agency position
on an issue or is used by the agency in its dealing with the public." 1 Id.
I find that the Special Assessment Review Forms are not protected by the deliberative
process privilege in this instance. The Secretary did not provide these forms for my in camera
review, but such forms always set forth the inspector's factual basis for recommending that a
special assessment be considered by the Secretary. The Secretary accepted the inspector's
recommendations as the agency's position when the subject citations and orders were specially
assessed. Thus, even if the forms had once been protected by the privilege, they lost their
protected status when the Secretary adopted his recommendations.
In addition, the Secretary's position with respect to Special Assessment Review Forms is
inconsistent at best. I take official notice of the fact that I have been assigned several cases in the
past few years in which Special Assessment Review Forms have been attached to the Secretary's
petition for assessment of penalty as a part of Exhibit A. A good example is Plateau Mining
Corp., WEST 2002-207, which is currently pending before me. The special assessment review
form for each citation in that fatality case was attached by the Secretary to the petition for
assessment of penalty. In addition, the Secretary has introduced these forms into evidence at
hearings to support her case. See, e.g., Basin Resources, Inc., 19 FMSHRC 1565, 1570-71 (Sept.
1997) (ALJ); S & M Construction, Inc., 18 FMSHRC 1018, 1051-52 (June 1996) (ALJ). The
Secretary cannot make her Special Assessment Review Forms public in some cases and claim
that it is privileged in others.

I find that the requested Special Assessment Review Forms may have some relevance to
the Secretary's negligence and unwarrantable failure determinations. For the reasons set forth
above, CDK Contracting's motion to compel production of the Special Assessment Review
forms is GRANTED and Secretary is hereby ORDERED to provide counsel for CDK
Contracting a copy of the requested Special Assessment Review Forms as soon as possible.

II. Special Investigation File
CDK states that it believes that the Special Investigation file for Citation No. 7935401
and Order No. 7935402 contains factual information relevant to the citations and orders at issue
in these proceedings. The Secretary objects to producing this file on the grounds that it is not
relevant. She also objects to providing portions of the file that are protected by the deliberative
process privilege, the informant's privilege, or the attorney-client privilege. The Secretary states
that, "[s]ubject to and without waiving these objections, the file is attached with the exception of
redacted or withheld privileged information as detailed in a privilege log." (S. Objection 2).

1

A more detailed discussion of the deliberative process privilege is contained in my order
in Newmont Gold Co., 18 FMSHRC 1532 (August 1996).
291

Because counsel for the Secretary represents that he has provided the requested Special
Investigation file to counsel for CDK Contracting with privileged sections redacted, CDK
Contracting's motion relating to the special investigation file is DENIED.

~

'

Richard W. Manning.
Administrative Law Judge

Distribution:
Karen L. Johnston, Esq., Jackson & Kelly,1099 18th Street, Suite 2150, Denver, CO 80202 (Fax
and First Class Mail)
Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Fax and First Class Mail)
RWM

292

*

U.S. GOVERNMENT PRINTING OFFICE: 2003 496-533/85704