July 14, 2017, in
Madisonville, Kentucky. The parties had the opportunity to present witnesses, documentary
evidence, and arguments in support of their positions.
Discussion of Relevant Law
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., 1 Sess. 35 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 623 (1978).
created the temporary reinstatement as “an essential protection for complaining
miners who may not be in the financial position to suffer even a short period
of unemployment or reduced income pending the resolution of the discrimination
Reinstatement is a preliminary proceeding and narrow in scope. As such, neither
the judge nor the Commission is to resolve conflicts in testimony at this stage
of the case. Sec=y
of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July
1999). The substantial evidence standard applies.
of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425,
2426 (Dec. 1993). A temporary reinstatement hearing is held for the purpose of
the evidence mustered by the miners to date established that their complaints are non-frivolous, not whether
there is sufficient evidence of discrimination to justify permanent
Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990).
In adopting section 105(c), Congress indicated that a
complaint is not frivolously brought if it Aappears
to have merit.@ S. Rep. No. 181, 95th Cong.,
1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In
addition to Congress= Aappears
to have merit@ standard, the Commission and federal
circuit courts have also equated Anot frivolously brought” to Areasonable cause to believe” and Anot insubstantial.” Sec'y of Labor on behalf of Price v.
Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920
F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that
establishing ‘reasonable cause to believe’ that a violation of the statute has
occurred is a ‘relatively insubstantial’ burden.” Sec’y of Labor on behalf
of Ward v. Argus Energy WV, LLC, 2012 WL 4026641, *3 (Aug. 2012) citing Schaub
v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir.
In order to establish a prima facie case of
discrimination under section 105(c) of the Act, a complaining miner must
establish (1) that he engaged in protected activity and (2) that there was an
adverse action, which was motivated in any part by that activity. Sec=y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec=y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
In the instant matter, the Secretary and Lovell need not
prove a prima facie case of discrimination with all of the elements
required at the higher evidentiary standard needed for a decision on the
merits. Rather, the same analytical framework is followed within the
“reasonable cause to believe” standard. Thus, there must be “substantial
evidence” of both the applicant=s protected activity and a nexus
between the protected activity and the alleged discrimination. To establish the
nexus, the Commission has identified these indications of discriminatory
intent: (1) hostility or animus toward the protected activity; (2) knowledge of
the protected activity; and (3) coincidence in time between the protected
activity and the adverse action. Sec=y
of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has
acknowledged that it is often difficult to establish a Amotivational nexus between protected activity and the
adverse action that is the subject of the complaint.@ Sec=y of Labor on behalf of
Baier v. Durango Gravel, 21 FMSHRC 953, 957
(Sept.1999). The Commission has further considered disparate treatment of the
miner in analyzing the nexus requirement. Secretary of Labor on behalf of
Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev=d on other grounds,
709 F.2d 86 (D.C. Cir. 1983).
Discrimination Complaints were filed with the Secretary’s Application for
Temporary Reinstatement. (see, Application for Temporary Reinstatement, Exhibits
B and C). In each Summary of Discriminatory Action, Complainant stated, in
On Tuesday, May 9, 2017 I was assigned by GMS to work at
Riveredge Mine pinning. I reported to my supervisor that the weld was broken on
the ATRS I was working on. My supervisor told me that to continue pinning the
cut was the only choice that I had. I was ultimately let go and was told that I
did not have a position with Riveredge or GMS. I am requesting temporary
reinstatement and any back pay, wages or bonus that I have missed because of
the companies actions.
Declaration of Special Investigator Charles Jones was also filed with the Application
for Temporary Reinstatement (see, Exhibit A), and in pertinent part is as
I am a special investigator employed by
the Mine Safety and Health Administration, United States Department of Labor
(MSHA). I am assigned to the District 10 Office in Madisonville, Kentucky.
As part of my responsibilities, I
investigate claims of discrimination filed under section 105(c) of the Mine
Act. In this capacity, I have reviewed and gathered information as part of an
ongoing investigation arising from a complaint filed by Phillip Lovell. My
investigation has revealed the following facts to date:
At all relevant times, Respondents
Pennyrile Energy LLC (Pennyrile) and GMS Mine Repair (GMS) engaged in the
operation of a coal mine and are, therefore, “operators” within the meaning of
Section 3(d) of the Act.
The Riveredge Mine located in McLean
County, Kentucky, has products that enter commerce and is, therefore, a “mine”
within the meaning of Sections 3(b), 3(h), and 4 of the Act.
Phillip Lovell was employed through
contractor GMS as a roof bolter at Pennyrile’s Riveredge Mine from March of
2017 until on or about May 10, 2017. Lovell is a “miner” within the meaning of
Section 3(g) of the Act. Lovell worked under the supervision of Pennyrile and
On or about May 8, 2017, Lovell
reported a safety concern regarding a power cable to another miner while an
MSHA inspector was present. A foreman verbally reprimanded Lovell and
instructed Lovell to not point out safety hazards to MSHA.
On or about May 9, 2017, Lovell
reported a safety concern regarding a roof bolter ATRS (Automated Temporary
Roof Support) system to a foreman. Lovell stated his refusal to work with that
roof bolter until it was repaired. The foreman made no effort to address
Lovell’s safety concerns regarding the roof bolter. The foreman directed Lovell
to use the roof bolter immediately, and watched to make sure Lovell did so.
On or about May 10, 2017, Lovell called
the MSHA hotline to report the roof bolter safety hazard. After MSHA responded
by sending out an investigator, an hourly miner instructed Lovell to lie to the
MSHA inspector by saying that Pennyrile immediately removed the roof bolter
from service after Lovell reported the ATRS safety hazard. The miner also told
Lovell that “We know you called” and added, “We have something waiting for
you…you’re in for a bad day.” Lovell interpreted these statements as a threat
from miners on the unit, including the foreman, made in response to Lovell’s
safety report to the MSHA hotline.
On or about May 10, 2017, Lovell
discussed his concerns regarding his safety complaints and the threat made
against him with Pennyrile management. Pennyrile management offered to move
Lovell to another shift or another area of the mine. Lovell was interested in
the possibility of GMS transferring him to work at another mine. Pennyrile
management called GMS management to discuss Lovell. Directly after that
conversation, Pennyrile management and GMS management informed Lovell that he
was terminated from working at Pennyrile’s Riveredge Mine and terminated from
working for GMS. GMS management told Lovell that Lovell should have thought of
the consequences before Lovell called MSHA.
On or about May 12, 2017, Lovell filed
a discrimination complaint against Pennyrile and GMS for their unlawful acts.
Lovell has asserted that the actions of Pennyrile and GMS constitute
discrimination under the Mine Act.
Based upon my investigation of these
matters, I have concluded that Lovell’s complaint of discrimination was not
the hearing, a Statement of Interview taken by Special Investigator Charles Lee
Jones on May 16, 2017, was admitted as Exhibit CX-1 and referred to during
testimony of Complainant Lovell.
Summary of Testimony
Phillip Michael Lovell began
working for GMS Mine Repair as a roof bolter at Pennyrile’s Riveredge Mine in
March 2017. Tr. 18-19. GMS is a
contract company that Pennyrile uses to supply employees. Tr. 99. The employees
work for GMS, and receive their benefits from GMS. Tr. 99-100.
In this position, he operated a Roof
Ranger 3 Low Profile Fletcher pinner which has a double boom with two
Tr. 35. On the dates in question, his foreman and direct supervisor at the mine
was Matt Allen. Tr. 18-19. He was also supervised by Leslie Ashby, who worked
for Human Resources at the contractor, GMS Mine Repair. Tr. 19. Lovell
testified that he rarely spoke with Ashby, unless there was an emergency, or he
had to miss work. Tr. 70-71.
On May 8, 2017, there were MSHA
inspectors at the mine on Lovell’s unit. Tr. 19-20. There was a problem with
the roof bolter in that it lost power, and a mechanic came out to reset the
power on the roof bolter. Tr. 20. Lovell then reported to the mechanic that
there was a cut in the trailer cable of the roof bolter. Tr. 20-21, 36. The cable
was energized and there were approximately 480 volts running through it. Tr.
21. With that many volts going through the cable, Lovell described the cut in
the cable as presenting “a life-and-death situation” because it presented an
electrocution hazard. Tr. 36-37. The MSHA inspector was standing behind Lovell
when he reported the safety hazard, and his supervisor, Matt Allen, was
standing on the other side of the bolter. Tr. 21.
Allen was shocked and acted
surprised when Lovell pointed out the safety hazard while the MSHA inspector
was present. Tr. 21-22. Allen pulled Lovell aside after the MSHA inspector left
and told Lovell not to point out any cuts in the cable while MSHA was at the
mine. Tr. 22. Lovell responded that he “was simply telling the guy not to grab
on the cable that was still an energized cable.” Tr. 22.
The following day, on May 9, 2017,
Lovell was working as a roof bolter at the Riveredge Mine, and Allen was once
again his foreman. Tr. 23. Lovell reported that there was a broken ATRS weld,
which placed his life in danger.
Tr. 23. Lovell spoke to Allen about the issue, and Allen told him to set the
ATRS. Tr. 23-24. Lovell set the ATRS and the pressure gauge went to 1,500 PSI.
Tr. 24. It then dropped down to 1,000 PSI in a matter of seconds, which led
Lovell to conclude that it was unsafe. Tr. 24. When the PSI drops, it indicates
a warning that pressure is being lost. Tr. 39. This can lead to a piece of
falling plate or a slip of heavy rock onto the miners beneath it. Tr. 39-40.
Lovell told Allen that he was not going to pin it, and Allen responded that it
was not a safety hazard and that Lovell did not have much of a choice. Tr. 24,
41. Allen stood over Lovell for approximately 45 minutes until he pinned the
After Lovell bolted the entire area
and he was in the last open crosscut, a mechanic arrived to perform the weld on
the ATRS. Tr. 25. Lovell talked to the mechanic about there not being rock dust
or a fire extinguisher present. Tr. 25. Lovell told the mechanic that they
needed to take safety precautions seriously. Tr. 25. Allen and the mechanic
chuckled, and the mechanic responded that they didn’t have time for that. Tr.
The following day, on May 10, 2017,
Lovell called the MSHA hotline to report a broken ATRS. Tr. 26. When Lovell
arrived at Riveredge, people were panicking about MSHA’s arrival that day. Tr.
26. Allen was once again Lovell’s foreman that day, and he assigned him to
shovel the belt on each side of the tail piece. Tr. 27. Lovell felt as if he
was being punished by being assigned this task instead of roof bolting. Tr. 27.
After Lovell was finished
shoveling, Allen ordered him to go to the left side to pin. Tr. 27-28. At one
point, a guy on the unit told Lovell to come to the middle of the run and talk
to the MSHA inspector and Allen. Tr. 28. On the way to speak to the inspector,
Lovell’s pin partner,
Lucan Dugger, stopped Lovell and told him to lie to the
inspector and tell him that when they found the broken ATRS they backed it out,
fixed it, and put it back in the run the correct way. Tr. 28, 35-36. Dugger
told Lovell that if he “didn’t do what he asked…they’ll have something waiting
Tr. 28-29. Lovell felt like his life was in danger, and did as he was ordered
and told the inspector a false story. Tr. 29-30.
After Dugger walked away, Lovell pulled
the two inspectors that were still standing near him and told them the truth.
Tr. 29. He told them that he had called MSHA, about the roof bolter hazard from
the day before, and about how he had been threatened and told to lie to them.
Tr. 29-30. The MSHA inspectors did not feel comfortable leaving Lovell in the
mine that day. Tr. 30.
Keith Whitehouse, who was the
safety director, came underground and Lovell spoke with him. Tr. 30. Whitehouse
agreed with MSHA about taking Lovell out of the mine. Tr. 31. Whitehouse felt
that he should have a talk about harassment with the entire unit at the
surface, with underground superintendent, Kris Maddox, present.
Maddox did not go underground with
the miners on May 10. Tr. 84. He arrived at the bolter when the inspectors were
getting ready to leave and talked to them briefly. Tr. 84-85. He also talked
“for just a second” to Lovell, and Lovell made allegations that an hourly
employee had threatened him. Tr. 85. Lovell refused to identify the individual.
Lovell had a conversation on the
surface with Whitehouse and Maddox. Tr. 31. The MSHA inspectors, Wyatt Oates, as
well as a miner’s representative named John Parker,
were present for the beginning of the conversation. Tr. 31, 57, 92. They asked
Lovell what happened, and he explained the previous safety hazards and threat.
Tr. 32. Whitehouse and Maddox tried to resolve the situation by saying that
they could get him a different position if he kept his mouth shut. Tr. 32.
Maddox offered to move Lovell to another crew and another roof bolter. Tr. 58.
He said that Lovell could have any position that he wanted, and Lovell replied
that he wanted to explore his options. Tr. 59, 89. Lovell
wanted to contact GMS to find out what types of positions were available, but
was told that Maddox and Whitehouse would contact GMS, and that he should not
contact them. Tr. 32. They asked Lovell to step out of the office, and they
called GMS. Tr. 33. Maddox then proceeded to call GMS and said that Lovell
requested a transfer. Tr. 95. He told them
that Lovell “didn’t want to be at our mines anymore, so therefore we don’t want
him there anymore either.” Tr. 95. Maddox testified that he knew about Lovell
calling MSHA, and that it was common knowledge at the mine. Tr. 101. However,
he maintained that he did not make any comments to her about Lovell calling
MSHA. Tr. 101. GMS told Maddox to tell Lovell “to get his things and to call
when he left the mines.” Tr. 95.
A few minutes later, Lovell was
told to contact Ashby at GMS. Tr. 33. Lovell called Ashby at GMS and asked her
if she knew what was going on. Tr. 34. She replied that she had just talked
with Maddox and Whitehouse by phone and knew the situation. Tr. 34. She then
said that they don’t want Lovell at Riveredge any longer, and that he needs to
clear his stuff out. Tr. 34. Lovell said that he should not be fired for his
actions, and she replied that Lovell “should have thought of the consequences
before [he] called MSHA.” Tr. 34. Lovell did not receive any further calls or
offers of employment, and was told not to step foot on the property of either
company. Tr. 34. Lovell understood the meaning of this conversation as him
being fired. Tr. 34. Lovell came back to the office briefly and told Maddox
that he had been fired. Tr. 96.
Complainant, through the Secretary and private counsel, argue that Lovell has
met his burden of establishing that his complaints are non-frivolous, and as a
result he should be temporarily reinstated. The Complainant highlights his
protected activities of making safety complaints on May 8, 9, and 10, as well
as his call to MSHA to report safety issues. It argues that his termination on
May 10 constitutes an adverse action under the Act for which both GMS and
Pennyrile are liable. Further, it argues that there was knowledge, animus, and
a coincidence in time between the protected activity and the adverse action.
Pennyrile argues that management at Pennyrile offered Lovell transfers to other
shifts and other positions at the mine, and that in refusing, Lovell quit his
job at the mine. Pennyrile further argues that it was GMS who actually laid off
Lovell. It argues that because Lovell quit his position at Pennyrile, it should
not be liable for reinstatement.
GMS argues Lovell was not terminated, but was laid off.
scope of this proceeding is narrow. Credibility determinations are not made;
conflicts in testimony are not resolved. It is well recognized by the Courts
that the Secretary’s burden is “relatively insubstantial”. For example, beyond
the scope of the hearing is testimony and/or documentary evidence that the
adverse action was justified by unprotected activity alone or was also
motivated by unprotected activity or other non-discriminatory grounds. For the
reasons set forth below, I find that the record presents a reasonable cause to
believe the instant Discrimination Complaints were not frivolously brought.
Engaged in Protected Activity
record contains evidence of several actions over a short time period that constituted
protected activities. First, on May 8, 2017, in the presence of MSHA inspectors
and his supervisor, Lovell reported to a mechanic that there was a cut or
pulled splice in the trailer cable of the roof bolter. Tr. 19-21, 36. This was
a high-voltage cable that was energized, and Lovell viewed it as a safety
hazard because it could lead to someone getting electrocuted. Tr. 21, 36-37.
the following day, on May 9, 2017, Lovell reported to his supervisor, Allen,
that there was a broken ATRS weld, which he believed placed his life in danger.
Tr. 23. Allen ordered Lovell to set the ATRS, and when he tried to do so, the
pressure dropped 500 PSI in a matter of seconds. Tr. 23-24. This indicated to
Lovell that the pressure supporting the roof was being lost, and that as a
result a piece of plate or heavy rock could fall on top of him. Tr. 24, 29-40. Lovell
attempted to refuse to perform the work, but his supervisor told him that he
did not have a choice, and stood over him for 45 minutes until he completed the
task. Tr. 24-25, 41.
was some testimony by others that they did not believe the broken weld
presented a safety hazard. Tr. 41. However, whether the broken weld constituted
a significant safety hazard is beyond the scope of this hearing. The Act does
not require that a miner prove that a significant safety hazard existed, but
only that he had a reasonable belief of a hazard underlying his complaint.
Lovell’s completion of his pinning tasks, a mechanic arrived to perform the
weld on the ATRS. Tr. 25. Lovell reported to the mechanic and his supervisor
that there was no fire extinguisher present, and the area was not properly rock
dusted. Tr. 25. They laughed, and the mechanic responded that they didn’t have
time for that. Tr. 25.
next day, on May 10, Lovell called the MSHA hotline to report a broken ATRS.
Tr. 26. After reporting such, another miner told Lovell to lie to MSHA and threatened
him. Tr. 28-29. Lovell reported this threat to the MSHA inspectors, as well as
Safety Director Whitehouse and Superintendent Maddox. Tr. 29, 32, 84-85. Each
of these safety complaints, calls to MSHA, and reports of threats constituted
protected activity under the Act. 30 U.S.C. §815(c)(1).
Suffered an Adverse Employment Action
May 10, following Lovell’s report of a threat in retaliation to his MSHA call,
Lovell had a meeting with, among others, Maddox and Whitehouse. Tr. 31, 57, 92.
At this meeting, Lovell was offered other positions at Pennyrile Mine. Tr. 32,
58. Lovell testified that he neither accepted nor rejected any of these offers
made in the meeting, because he wanted to first talk with GMS and better
understand his options. Tr. 32, 59,
89. Following this meeting, Maddox called GMS and told Ashby that Lovell
“didn’t want to be at our mines anymore, so therefore we don’t want him there
anymore either.” Tr. 95. When Lovell called Ashby a few minutes later, she told
him that he was not wanted at Riveredge any longer, and he needs to clear his stuff
from the mine. Tr. 34. Lovell responded that he should not be fired for his
actions, and she responded that Lovell “should have thought of the consequences
before [he] called MSHA.” Tr. 34.
argument that Lovell quit and therefore not entitled to reinstatement under Dolan
v. F&E Erection Co., 22 FMSHRC 171 (Feb. 2000), is misplaced. Though
Respondent is correct that a miner who voluntarily quits his job is not
entitled to temporary reinstatement, that is not what occurred here.
In the instant case, Lovell was asked in a meeting whether he wanted to be
transferred to other positions. Lovell did not respond by quitting, but rather
simply did not accept the offers on the spot. It was reasonable for Lovell to
want to discuss the matter with his employer, GMS, and to consider the matter
further. There are no indications that when he left the meeting to call GMS, he
believed that he had lost his employment. Tr. 96. Therefore, I find that Maddox’s
calling GMS and stating that they did not want Lovell at the mine any longer
constituted a “discharge…or cause to be discharged,” under the Act. 30 U.S.C.
similarly discharged Lovell when Ashby told him to clear his stuff from the
mine and did not give him any further offers of employment. Tr. 34. GMS’s
counsel has conceded that Lovell was laid off, but insists that he was not
terminated. Tr. 12. GMS is not alleging that there was a reduction in force or
some other economic layoff that might be grounds for a tolling argument.
Therefore their assertions that Lovell was laid off and not terminated is a
distinction without a difference. A layoff is a “discharge” under the Act.
Nexus Existed Between the Protected Activity and the Adverse Employment Action
discussed supra, to obtain a temporary reinstatement a miner must raise
a non-frivolous claim that he engaged in protected activity with a connection,
or nexus, to an adverse employment action. Having concluded that Lovell engaged
in protected activities and suffered an adverse employment action, the
examination now turns to whether those activities have a connection, or nexus,
to the subsequent adverse action. The Commission recognizes that direct proof
of discriminatory intent is often not available and that the nexus between
protected activity and the alleged discrimination must often be drawn by
inference from circumstantial evidence rather than from direct evidence. Phelps
Dodge Corp., 3 FMSHRC at 2510. The Commission has identified several
circumstantial indicia of discriminatory intent, including: (1) hostility or
animus toward the protected activity; (2) knowledge of the protected activity;
(3) coincidence in time between the protected activity and the adverse action;
and (4) disparate treatment of the complainant. See, e.g., CAM Mining,
LLC, 31 FMSHRC at 1089; see also, Phelps Dodge Corp., 3 FMSHRC
of the protected activity
to the Commission, “the Secretary need not prove that the operator has
knowledge of the complainant's activity in a temporary reinstatement
proceeding, only that there is a non-frivolous issue as to knowledge.” CAM
Mining, LLC, 31 FMSHRC at 1090, citing Chicopee Coal Co.,
21 FMSHRC at 719. In the instant matter, there is sufficient evidence of knowledge
by both Pennyrile and GMS management of the various protected activities to
meet the evidentiary threshold.
reported the cut in the trailer cable on May 8 in the presence of MSHA
inspectors and his supervisor, Matt Allen. Tr. 20-21. Lovell testified that
Allen was shocked and surprised by the complaint, and pulled Lovell aside and
told him not to point out cuts in the cable while MSHA was present. Tr. 21-22.
similarly had knowledge of Lovell’s complaint concerning the ATRS weld on May 9
because the complaint was made to Allen. Tr. 23-24. Following the problem with
the drop in pressure on the ATRS, Allen ordered Lovell to continue pinning in a
manner that Lovell feared was unsafe. Tr. 24-25.
was also aware of Lovell’s complaint concerning the lack of a fire extinguisher
and rock dust because Lovell made the complaint in his presence. Tr. 25. Lovell
testified that Allen and the mechanic laughed at the idea that they needed to
take these safety precautions seriously. Tr. 25.
there was knowledge by Pennyrile’s Maddox and Whitehead, as well as GMS’s
Ashby, concerning Lovell’s call to MSHA and the threats made to him. The
meeting with Maddox, Whitehead, and others occurred in part as a response to
the threat Lovell received. Further, Maddox testified that he knew about Lovell
calling MSHA because it was common knowledge at the mine. Tr. 101. Though Ashby
had minimal contact with Lovell generally, she too was aware of his calling
MSHA. Tr. 70-71. In the conversation where Ashby fired Lovell, she told him
told that he “should have thought of the consequences before [he] called MSHA.”
in time between the protected activity and the adverse action
Commission has accepted substantial gaps between the last protected activity
and the adverse employment action. See e.g. CAM Mining, LLC, 31
FMSHRC at 1090 (three weeks) and Sec'y of Labor on behalf of Hyles v.
All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a 16-month gap existed
between the miners' contact with MSHA and the operator's failure to recall
miners from a lay-off; however, only one month separated MSHA's issuance of a
penalty resulting from the miners' notification of a violation and that recall
failure). The Commission has stated “We ‘appl[y] no hard and fast criteria in
determining coincidence in time between protected activity and subsequent
adverse action when assessing an illegal motive. Surrounding factors and
circumstances may influence the effect to be given to such coincidence in
time.”’ All American Asphalt, 21 FMSHRC 34 at 47 (quoting Hicks
v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991).
the instant matter, extremely close proximity in time between the
protected activities and the adverse actions greatly favors a finding that a
nexus existed between the protected activities and the adverse actions. The
protected activities at issue here all occurred on May 8, 9, and 10, 2017.
Lovell was discharged from Pennyrile and GMS on May 10, 2017, immediately after
his final protected activity.
or animus towards the protected activity
Commission has held, “[h]ostility towards protected activity-- sometimes
referred to as ‘animus'--is another circumstantial factor pointing to
discriminatory motivation. The more such animus is specifically directed
towards the alleged discriminatee's protected activity, the more probative
weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps
Dodge Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted).
a single instance, even circumstantial in nature would suffice, here there are
several indications of animus. Following Lovell’s complaint about the cut in
the cable, Allen told him not to make such complaints in the presence of MSHA
inspectors. Tr. 22. Following Lovell’s complaint concerning the broken ATRS
weld and the drop in pressure, Allen ignored Lovell’s concerns and ordered him
to use the machine. Tr. 24-25. Following Lovell’s complaint about the lack of
rock dust and fire extinguisher, Allen laughed. Tr. 25. Then, on May 10, after
Lovell called MSHA, Allen assigned him to shovel the belt, which Lovell felt
was a form of punishment. Tr. 26-27.
statement to GMS that they didn’t want him at the mine any longer exhibited
animus towards Lovell’s protected activity, as did GMS’s statement upon firing
Lovell that he should have thought about the consequences of his actions when
he called MSHA. Tr. 34, 95.
forms of disparate treatment are encountered where employees guilty of the
same, or more serious, offenses than the alleged discriminatee escape the disciplinary
fate which befalls the latter.” Secretary of Labor on behalf of Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, 2512 (Nov. 1981). The Commission has
previously held that evidence of disparate treatment is not necessary to prove
a prima facie claim of discrimination when the other indicia
of discriminatory intent are present. Id. at 2510-2513.
there was disparate treatment of Lovell was not developed on this record, but
the fact that he was fired by GMS after being threatened by a miner at the
Pennyrile Mine raises the question of whether other GMS employees have been
treated in the same way, or given the benefit of a personnel policy of a more
graduated approach to employee discipline.
concluding that Lovell’s complaint herein was not frivolously brought, I find
that there is reason to believe he engaged in protected activities, and that
there was a nexus between the protected activities and his termination. Miner Phillip Lovell is entitled to Temporary Reinstatement
under the provisions of Section 105(c) of the Act.
hereby ORDERED that Phillip Lovell be immediately TEMPORARILY
REINSTATED to his former job with GMS at the Pennyrile mine at his former
rate of pay, overtime, and all benefits he was receiving at the time of his
This Order SHALL
remain in effect until such time as there is a final determination in this
matter by hearing and decision, approval of settlement, or other order of this
court or the Commission.
I retain jurisdiction
over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e) (4). The
Secretary SHALL provide a report on the status of the underlying
discrimination complaint as soon as possible. Counsel for the Secretary SHALL
also immediately notify my office of any settlement or of any
determination that Respondents did not violate Section 105(c) of the Act.
Kenneth R. Andrews
Distribution (Via E-mail and Certified Mail):
Christopher M. Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219 firstname.lastname@example.org
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 email@example.com
Mark E. Heath, Esq., Counsel for Pennyrile Energy, LLC,
Spilman, Thomas & Battle, PLLC, P.O. Box 273, 300 Kanawha Boulevard, East,
Charleston, WV 25329 firstname.lastname@example.org
Andrew Ellis, Corporate Compliance and HR Manager, GMS Mine
Repair, 224 Moyers Road, Bruceton Mills, WV 26525 email@example.com
William C. Means, Esq., General Counsel, GMS Mine Repair,
224 Moyers Road, Bruceton Mills, WV 26525 firstname.lastname@example.org
Mr. Phillip Lovell, 830 Sancut Rd., Madisonville, KY 42431 email@example.com