Federal Mine Safety and Health Review Commission

On November 5, 2012, Mr. Bragg filed a Discrimination Complaint, which included a brief Discrimination Report. In his Complaint, he reported that he was terminated from his job as a bulldozer operator at the Huffman Surface Mine on October 19, 2012. In the Summary of Discriminatory Action, Bragg wrote the following: “I was laid off after reporting a safety hazard on the bulldozer I was operating.” Exhibit B, Application for Temporary Reinstatement.

Following the filing of the complaint on November 5, 2012, the Secretary performed an investigation and determined that the Complaint was not frivolously filed. On December 12, 2013, the Secretary filed an Application for Temporary Reinstatement of Wayne Bragg.

Submitted with the Application for Temporary reinstatement was the December 10, 2012 Affidavit of David E. Rhodes. The affidavit, in pertinent part, is as follows:

1. I am employed as a supervisory special investigator by the Mine Safety and Health Administration, United States Department of Labor, in Mount Hope, West Virginia.

2. As part of my official responsibilities, I investigate claims of discrimination filed by miners pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977 (the “Act”). In this capacity I have investigated the discrimination claim filed by Wayne Bragg on November 5, 2012. My investigation to date has revealed the following facts:

d. On November 5, 2012, Bragg filed a discrimination complaint for being discharged on October 19, 2012 after he listed hazardous conditions in the pre-operational slips for the mine’s bulldozers and/or after he was perceived to have made an anonymous complaint to MSHA about hazardous conditions on the mine’s bulldozers.

e. From May 2012 through July 2012, Bragg engaged in protected activity by documenting hazardous conditions for a Caterpillar D-11 T bulldozer in the daily pre-operational reports were reviewed by agents of the Respondent.

f. On August 1, 2012, MSHA conducted an inspection at the mine in response to an anonymous complaint alleging that one of the Caterpillar D-11 T bulldozers had defective seals that there was dust inside the bulldozer’s cab. Inspector Michael Boggs examined the Caterpillar D-11 T bulldozers and determined that the door seals on both of the bulldozers were defective. Inspector Boggs issued one violation, Section 104(a) Citation No. 8151132, for a violation of 30 C.F.R. § 77.1606(c).

g. Less than a week after Inspector Boggs issued Citation No. 8151132, Superintendent Tony Underwood made a threatening statement to Bragg and at least one other miner about the anonymous complaint to MSHA. In effect, Underwood stated that if he determined who had anonymously complained to MSHA, that person would be fired.

h. Respondent laid off twenty employees on October 19, 2012. Only four day-shift employees were included in the layoff, including Bragg and the other Caterpillar D-11 T bulldozer operator who had been working on August 1, 2012.

i. Due to the fact that Bragg had experienced hostility from an agent of the Respondent regarding the anonymous complaint about the defective door seals on one of the Caterpillar D-11 T bulldozers, and that Bragg was eventually discharged along with the other day-shift Caterpillar D-11 T bulldozer operator who had been working on August 1, 2012, Bragg has reason to believe that the Respondent terminated him because Bragg repeatedly recorded hazardous conditions in the pre-operation slips and/or because the Respondent suspected that he had made the anonymous complaint to MSHA regarding those same hazardous conditions.

j. There is reasonable cause to believe that Bragg was discharged because he was engaged in protected activities and/or because he was perceived to have engaged in such activities. Bragg suffered an adverse action when he was discharged on October 19, 2012.

Exhibit A, Application for Temporary Reinstatement.

Stipulations of the parties

During the hearing, the parties entered the following stipulations on the record:

1) The Administrative Law Judge has jurisdiction over these proceedings pursuant to Section 105 of the Federal Mine, Safety and Health Act of 1977, The Act, 30 U.S.C. Section 815, as amended.

2) Maple Coal Company is the operator of Huffman Surface Mine No. 1, Sycamore project.

3) Maple Coal Company's products affect commerce within the meaning and scope of Section 4 of The Act, 30 U.S.C. Section 804.

4) Wayne Bragg, the complainant in this matter, was employed as a bulldozer operator at Maple Coal Company. He began employment on November 6, 2008. He was laid off for the first time on March 16th, 2009, and rehired on July 31st, 2009.

5) Mr. Bragg was laid off on October 19th, 2012.

6) On August 1st, 2012, MSHA Inspector Michael D. Boggs issued a Section 104(a), non-S&S, citation, number 8151132, for an alleged violation of 30 CFR Section 77.1606(d) 1606(c) related to cab door seals on two Caterpillar D11 dozers. The inspection was prompted by a Section 103(g) complaint. The penalty proposed and paid for the citation was $100.00.

Testimony of Wayne Bragg:

Wayne Bragg, Sr. began mining in 1976 or 1977 at American Electric Power driving a rock truck. Tr. 17. He then worked for Cedar Coal, where he operated a D9 bulldozer and a 992 Cat endloader. Tr. 17. His next position, between 1992 and 1996, was with Rodney Polatino for the DEP running an excavator, bulldozer and loader truck in order to reclaim mine seals at abandoned mines. Tr. 17-18. Bragg then worked at Frasure Creek where he operated a bulldozer, truck, and hoe. Tr. 19. He then went to Coal River before coming to Maple Coal in 2008. Tr. 19-20. At Coal River and Frasure Creek, Bragg received several trainings on a dozer, loader, rock truck, grader, motor grader, road grader, and backhoe. Tr. 19-20, 23.

At Maple Coal, Bragg primarily operated a D11 bulldozer. Tr. 20, 22. According to the Maple Coal training records, admitted as GX-4, Bragg received training on May 2, 2011, to operate a D9T bulldozer, a D11T bulldozer, and a D10 bulldozer. Tr. 21-22. These trainings were all certified by Underwood. Tr. 22. Bragg also received training on January 2, 2010, to operate a 777 rock truck, which has a dozer, loader, grader, excavator, and truck. Tr. 22. This training was certified by the evening shift foreman, William Treadway. Tr. 22. On November 6, 2008, Bragg received training, which was signed by Underwood, on a dozer, excavator, loader, and grader. Tr. 22-23.

Bragg testified that he reported safety hazards concerning defective door seals on the bulldozer he was operating after the seals had broken loose from the door. Tr. 26-27. As a result of the defective seal, dust was entering the cab and clogging the filters. Tr. 27. Bragg testified that he was suffering from headaches, sinus problems, and nose bleeds from excessive dust in his cab. Tr. 28.

On May 11, 2012, Bragg wrote in his pre-operational report that “the door seal’s falling off.” Tr. 29; GX-2.^{^[3]} In his May 21, 2012 pre-operational report, Bragg also wrote about the defective door seals. Tr. 30; GX-2. In his June 12, 2012 pre-operational report, Bragg again complained again about the defective door seals. Tr. 30; GX-2.

Bragg testified that he discussed the door seals problems with a foreman, named Melvin Adkins, and Superintendent Underwood. Tr. 31-32. Underwood responded that they were going to order a new door seal. Tr. 32. On one occasion, Adkins responded that he would address the issue when he had time, and on a second occasion said he that he would have the evening shift put seals on the bulldozer door. Tr. 32. Bragg testified that the evening shift did a poor job of gluing the seals back on, so that they quickly came off again. Tr. 32-33. Underwood told Bragg in May or June that the seals were being ordered. Tr. 33.

On August 1, 2012, Citation No. 8151132 was issued for the condition complained of by Bragg. Tr. 34; GX-3. The citation was pursuant to an E04 inspection, which are verbal hazard complaint inspections. Tr. 35. On the hazard complaint, admitted as GX-5, it lists problems with the window seals. Tr. 38.

On the Monday morning following the citation and issuance of the citation, Bragg attended the weekly safety meeting. Tr. 39-40. After the meeting, Underwood approached Bragg and Dave Williams, who operates an endloader, in the parking lot and spoke to them about the recent citation. Tr. 40. Bragg testified that Underwood told them, “I don’t know who called MSHA in there, but if I find out who did it, if they’ve had a bad…day, I will fire their asses.” Tr. 40.

Prior to the issuance of the citation, Bragg testified that he and Underwood got along well, and that Underwood was never critical of Bragg’s work. Tr. 40, 41. Bragg never received any disciplinary actions at Maple Coal. Tr. 44. However, following the citation, Underwood was very critical of Bragg’s work. Tr. 41. Bragg testified about one incident on the day before he was laid off where he was told by Underwood to perform a task, and then after 10 hours was told that he was not supposed to perform that task. Tr. 41-42. He described such incidents occurring often after the citation, stating, “I couldn’t do nothing [sic] right after that.” Tr. 41.

On October 19, 2012, Bragg received a call from someone in safety telling him that he was laid off. Tr. 42. Bragg believed the call to be a hoax, and when he tried to go to the mine the following day, the guards would not let him enter. Tr. 43. Bragg testified that he believes he was laid off for reporting the defective door seals, stating, “After that door seals [sic], my job went downhill.” Tr. 44.

On cross-examination, Bragg testified that the pre-shift reports that he used to complain about the door seals go to the foreman, but that he did not know if they are then sent to maintenance. Tr. 46. He further testified that he was aware that there were layoffs occurring at other mines in the industry, particularly in southern West Virginia. Tr. 48. He testified that Williams, the other worker that Underwood spoke to, was not laid off, but was put on the evening shift by himself. Tr. 50. Bragg testified that three other day-shift employees were laid off on the strip. Tr. 50, 54.

Bragg also testified on cross-examination that he was planning on retiring in six months. Tr. 51. On redirect, Bragg stated that he was planning on retiring when he turned 65 years old. Tr. 54-55. Bragg also expressed uncertainty concerning his financial stability and any timeframe for retirement. Tr. 54-55.

Testimony of Eddie Turner:

Eddie Dale Turner has been the manager for all the above-ground operations for Walter Energy in West Virginia, which includes Maple Coal, since January 2010. Tr. 61. He has 31 years of experience in the surface mining industry. Tr. 61. For 12 years, Turner was an engineer at a coal company, and for the remainder of the time he has managed large surface operations. Tr. 61-62. He has a degree in civil engineering, is a registered professional engineer in West Virginia, Wyoming, and Kentucky, and has a surface mine certification in Kentucky. Tr. 62.

Turner testified that the company lost an order in April 2012 in Summersville and as a result the company shut down the operation and laid off 47 men. Tr. 62. Taylor described as “the triggering factor” for the layoffs the news in October that Maple Coal was out-bid on a coal order that it believed to be a certainty. Tr. 63. He testified that the company had over 100,000 tons of coal uncovered. Tr. 63. In the period between the layoff and the hearing, the company has not been producing coal, but instead has been hauling coal in order to deplete the inventory. Tr. 63.

Turner described the layoff process as being “three-fold,” which included a reduction at the underground mine, a reduction at the plant, and a reduction at the surface mine. Tr. 64. Turner was responsible for selecting the individuals to be laid off, and he testified that he used a five-point ranking system. Tr. 64. The first and second steps involve the HR representative reviewing the files to find any discipline or attendance problems. Tr. 64-65.^{^[4]} The third step involves a review of operator skill. Tr. 65. In the fourth step they look at “versatility.” Tr. 65. The fifth step is implemented in a tie-breaker, where they look at time of service at the mine and time of service with the company. Tr. 65.

Turner testified that he began the evaluation process with 48 men. Tr. 65. Turner ranked the employees in groups of ten. Tr. 65. He then “massaged” the numbers, taking into account issues such as which individuals had EMT or foreman certifications. Tr. 65. The resulting color-coded spreadsheet was admitted as RX-1. Tr. 66.^{^[5]} The color yellow symbolizes the equipment operators at the Sycamore Surface Mine, and they were all retained. Tr. 66-67. The color green symbolizes those on the reclamation crew, and the color brown symbolizes the maintenance crew. Tr. 67-68. The employees without color-coding were the individuals who were laid off. Tr. 68. The numbers on the left side of the sheet indicate Turner’s personal rankings of the employees. Tr. 69. Five of the numbers are skipped, and when asked about this discrepancy, Turner replied that it was the result of his starting at the top and working to the bottom of the list. Tr. 68; RX-1. Bragg is listed as number 45 because Turner viewed Bragg’s skillset as low among the workers. Tr. 69.

Also included on the spreadsheet are employees’ birthdates, hire dates, race, pay type, position, and the cities where they live. Tr. 69-70; RX-1. The last column has a mixture of EMT designations and nicknames such as “Smiley,” “Greasy,” and “Freddy.” Tr. 70-71; RX-1.

Turner testified that before he decided who to layoff, he consulted with Beth, the HR manager. Tr. 71. She cautioned him about possible age discrimination, and told him not to layoff all the workers over 40 years old. Tr. 71. Turner said that he ended up laying off most of the younger workers, and described it as “almost a reverse discrimination deal.” Tr. 71. Turner testified that he had difficulty making the layoff decision among some workers, but not with Bragg. Tr. 71-72.

Turner testified that 67 people were laid off, which constituted more than half of the workforce, and included all but seven of the day shift workers and one person on the evening shift. Tr. 72, 78. All of the supervisors were retained. Tr. 72. Turner testified that one D11 bulldozer was shut down, and a bulldozer operator was needed to load coal and run the grade on the evening shift, and Dave Williams was chosen for retention. Tr. 72, 79. Turner stated that Melvin Adkins, the son of one of the supervisors, was laid off. Tr. 73. However, Melvin Adkins was recalled the day before the hearing because they needed a driller. Tr. 91. Ernest and William Underwood, who were brothers of Anthony Underwood, were not laid off. Tr. 84.

Turner testified that he laid off bulldozer operators that were better than Bragg. Tr. 74. He also stated that in the summer of 2012 the maintenance manager remarked to Turner that Bragg and John Patterson “were the worst two dozer men he had ever witnessed.” Tr. 74. After hearing this comment, Turner stated that he began watching Bragg and Patterson more closely. He stated, “These two guys work hard; they just can’t get the job done.” Tr. 74. Turner testified that starting in April or May, he put additional pressure on Adkins and Underwood to increase Bragg’s and Patterson’s production. Tr. 74-75. Prior to the layoff, Patterson left work for an illness, and Greg Querry took his place. Tr. 75. Turner testified that Bragg performed better working with Querry. Tr. 75. Turner testified that Jerry Shaw replaced Bragg after the layoff, and that Shaw is a “solid” employee. Tr. 78-79.

On cross-examination, Turner testified that they have pre-shift daily checklists as required by West Virginia law. Tr. 79-80. He does not look at the checklists every day, but only if something becomes an issue. Tr. 80. Turner testified that the problem with the door seals did not come to his attention until after the citation was issued. Tr. 80.

On cross-examination, Turner testified that by “versatility” he meant the ability to run multiple pieces of machinery. Tr. 80-81. Turner did not consider Bragg as versatile because he only saw him operating a bulldozer. Tr. 81. He testified that he never looked at Bragg’s file or original employment application to find out what other equipment he could run. Tr. 81, 86. He also did not speak to any of the foremen or to Bragg directly about additional equipment that he could operate. Tr. 86. He testified that he conducted no investigation as to whether Bragg was a versatile operator. Tr. 86. He stated that he based it solely on his personal perception. Tr. 87. Turner did not direct Bragg’s work on a daily basis, but he did witness Bragg’s work on occasion. Tr. 87. He testified that Underwood understood one of Turner’s reasons for laying off Bragg was that he was not versatile. Tr. 99.

Turner further testified that Bragg did not have any absenteeism, discipline, or safety problems. Tr. 81-82. Turner denied that Bragg’s complaints about the door seals or the 103(g) complaint had anything to do with Bragg’s layoff. Tr. 82.

Turner testified that he did not record how many points each employee received on his point system. Tr. 85. He testified that with regards to disciplinary action and absenteeism, all 50 employees received the same points. Tr. 85. Therefore these two factors were not relevant to the decision. Tr. 86.

After making the list, Turner provided Adkins, Underwood, the HR manager, Beth Roberts, and the senior safety manager, Herb Shady, the opportunity to review the list and question any layoff decisions. Tr. 87. Turner testified that Underwood saw the final list and made no changes. Tr. 88. They discussed the possibility of retaining Melvin Adkins, because his father was a supervisor, and instead laying off Curtis Stover. Tr. 88. They also discussed whether to layoff Joey Chambers or Joey Mullins, but decided to retain Chambers because he was an EMT. Tr. 89.

Turner testified that several workers have been recalled, including Melvin Adkins on the day before the hearing and Bernard Fleshman on August 13. Tr. 95. Additionally, James Shaffer, Joey Mullins, Rick White Jr., Larry Hudson, and Shane McComas were scheduled for recall on January 7. Tr. 91.

Turner testified that the mine is leased from Pardee Minerals. Tr. 92. Maple Coal compensates Pardee per ton of extraction, and there is a minimum payment in the terms of the lease. Tr. 92. Maple Coal was not having trouble making those lease payments to Pardee. Tr. 92-93.

Prior to the October 19 layoff, there were two operating ten-hour shifts. Tr. 94. Turner testified that they currently expect a large deal with Stemcor that will allow them to bring back more employees. Tr. 93-94. There are no industry requirements as to how recall decisions are made. Tr. 94.

Testimony of Anthony Underwood:

Anthony L. Underwood has worked as the superintendent of Maple Coal’s Sycamore Surface Mine since July 2008. Tr. 100-101. He described his duties as implementing the mine plan with Turner and Adkins. Tr. 101.

Underwood testified that the door seals represented an ongoing problem because Caterpillar no longer manufactures the needed seals. Tr. 101. Therefore, the seals that were tried did not resolve the problem. Tr. 101. They tried to modify the seals they received from Caterpillar, but the glue failed to keep the seals intact. Tr. 102. Underwood testified that the defective seals did not constitute a major problem because the air conditioning systems in the equipment had positive pressure systems. Tr. 102. He testified that this system pulls air through filters at the top of the cab, and that a small gap should not lead to excessive dust in the cab. Tr. 103. Underwood admitted that Bragg told him about problems of the door seams and dust on several occasions. Tr. 103.

With regards to the pre-shift reports, Underwood testified that each operator was required to fill them out and, after doing so, Adkins collected them. Tr. 104. Adkins would then prioritize problems that needed immediate attention, and pass them on to the mechanics to fix. Tr. 104. Reviewing the collection of safety checklists, admitted as RX-2, Underwood testified that Bragg made several complaints in May and June, but did not list the door seals as a problem in July. Tr. 105-106. Underwood testified that other operators also reported the door seals, but did not know if any complained more than Bragg. Tr. 107.

Underwood testified that on the day of the inspection he accompanied Inspector Boggs. Tr. 107. He stated that he permitted Boggs to talk with Bragg and Patterson. Tr. 108. He testified that he was not upset about the citation, but that in his opinion the citation would not have been issued if there had been no complaint. Tr. 108-109. Underwood stated that in 2012, a total of seven citations were issued at the mine, and he was proud of that figure. Tr. 109. Underwood denied confronting or threatening Bragg and Williams after the citation was issued. Tr. 109. On cross-examination, he stated that he could not remember if he talked with them on that day. Tr. 113. He testified that as far as he knew neither the citation nor the previous complaints were factored into Bragg’s layoff. Tr. 109. Underwood further denied that he treated Bragg any differently after the citation. Tr. 110. Underwood testified that he did give Bragg increased attention following Turner’s discussion with him. Tr. 110.

On cross-examination, Underwood testified that the pressurized system in the cab would be reduced from any leaks. Tr. 111-112. After Bragg complained about the door seals in May and June, Underwood examined them a few times. Tr. 112. Underwood testified that in August he ordered a new style door seal from Caterpillar that appeared to work better than the previous replacements. Tr. 112.

Underwood testified that he had minimal input during the layoff process, and did not know about it until a few days before it went into effect. Tr. 114. Underwood stated that he discussed the list several times with Adkins, and thought it was fair. Tr. 115. He stated that he did not have a conversation specifically about Bragg. Tr. 115. Underwood confirmed that he told the investigator, David Rhodes, that Bragg was a good employee but that he could only operate one type of equipment. Tr. 115-116. In the six years that he has known Bragg, Underwood has only known him to operate a bulldozer. Tr. 116-117. Underwood task trained Bragg on several pieces of equipment, but he only ever assigned him to operate the bulldozer. Tr. 117. He stated that Bragg liked running the dozer and he was never needed on other equipment. Tr. 117. Underwood testified that Bragg was a good employee, but not among the best employees. Tr. 118. He testified that he laid off other employees that he also considered good employees. Tr. 119.

Contentions of the parties:

The Secretary and operator dispute both the facts at issue in this case and the scope of a temporary reinstatement proceeding. The Secretary argues that the scope of a temporary reinstatement proceeding is narrow and limited to a determination of whether a miner’s complaint was frivolously brought. As such, the Secretary cites CAM Mining, 31 FMSHRC 1085, for the propositions that the judge may not resolve conflicts in testimony, make credibility determinations, or weigh the operator’s rebuttal or affirmative defense evidence against the Secretary’s prima facie case evidence. The operator takes the position that the Secretary’s burden of proof in establishing that the complaint was not frivolously brought is broader than described by the Secretary. The operator argues that the judge must consider all the evidence presented in determining whether the Complainant engaged in protected activity and whether there was a nexus between that activity and the adverse employment action. The operator contends that the inferences required in determining a nexus should be made sparingly and should fully consider the operator’s stated reasons for the adverse employment action.

With regards to the facts in dispute, the Secretary argues that Bragg engaged in protected activities when he listed hazardous conditions in the pre-operational reports for the mine’s bulldozers in May and June, 2012, when he made verbal complaints in July, 2012, and when he came under suspicion for making an anonymous safety complaint regarding the same hazardous condition. Following an August 1 inspection of the bulldozers, mine superintendent Anthony Underwood made threatening statements to Bragg, and their previously positive relationship deteriorated. Bragg suffered an adverse action on October 19, 2012, when he was included in a large layoff of workers. The Secretary argues that there was a nexus between the protected activities and the adverse action suffered by Bragg. The Respondent had actual or constructive knowledge of the contents of Bragg’s pre-operational report as well as the anonymous safety complaint and MSHA citation. The Secretary argues that the Respondent’s agent, Superintendent Underwood, showed animus or hostility toward the anonymous complaint to MSHA when he stated that if he found the person who complained, that individual would be fired.

The operator denies that Bragg was perceived to have brought anonymous complaints to MSHA about hazardous conditions or that Superintendent Underwood made any threatening statements. The bulldozer seals were a relatively minor issue from the operator’s perspective, and other miners made more complaints about the bulldozers than Bragg. It argues that Bragg was laid off as part of a larger reduction in force, which included one third to one half of Maple Coal employees. Additionally, the operator makes three additional requests: that if temporary reinstatement is granted, I demand a report by February 6, 2013; that if temporary reinstatement is granted, that the operator be permitted to rehire Bragg to an alternative job with the same pay and benefits; and that I take into account alleged statements that Bragg made concerning a planned retirement within six months.

Findings and conclusions

Protected activity

On May 11, 2012, Bragg wrote in his pre-shift report that there were problems with the door seals in his bulldozer. Tr. 29; GX-2. On May 21, 2012, Bragg again wrote in his pre-shift report that there were problems with the door seals in his bulldozer. Tr. 30; GX-2. On June 12, 2012, Bragg again wrote in his pre-shift report that there were problems with the door seals on his bulldozer. Tr. 30; GX-2. During that time, Bragg complained verbally about the defective door seals with foreman Adkins and superintendent Underwood. Tr. 31-32, 103. Bragg testified that as a result of the gap in the door seals, excessive dust was filling his bulldozer cab and clogging the air filters. Tr. 27. The dust led to headaches, sinus problems, and nose bleeds. Tr. 28.

On August 1, 2012, MSHA conducted an E04 inspection of the bulldozers after it received an anonymous complaint. GX-5. Underwood testified that during the inspection, Inspector Boggs spoke with Bragg and Patterson about the conditions of the bulldozers. Tr. 108. As a result of the inspection, MSHA issued Citation No. 8151132 for defective door seals on two bulldozers. GX-3. Less than one week after the citation was issued, Underwood spoke with Bragg and Williams, telling them, “I don’t know who called MSHA in there, but if I find out who did it, if they’ve had a bad…day, I will fire their asses.” Tr. 40. Following the citation, Underwood became highly critical of Bragg’s work. Tr. 41. Bragg testified that, “After that door seals [sic], my job went downhill.” Tr. 44. Bragg testified that this treatment continued until he was laid off on 10/19/2012. Tr. 41-42.

Section 105(c)(1) states, in relevant part:

No person shall discharge or in any manner discriminate againstYor otherwise interfere with the exercise of the statutory rights of any minerYin any coal or other mine subject to this chapter because such minerYhas filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the operator's agentYof an alleged danger or safety or health violation in a coal or other mine.

30 USC ' 815(c)(1).

By reporting the defective door seals and dust in his bulldozer cab, verbally complaining about these hazards to supervisors, and being suspected of making an anonymous complaint about the problem, Bragg engaged in protected activity. Each of these activities counts as protected activity, and because they involve a prolonged effort to fix a discrete hazard, they can be viewed as a whole.

The complaints about the defective door seals in the pre-shift reports, as well as the verbal complaints, are covered under the plain meaning of §105(c)(1). The operator does not dispute this, but argues that the anonymous complaint to MSHA was not protected activity because there were no allegations that Bragg actually made the complaint. It also argues that the hazard report shows that the complaint was primarily about window seals, which would have led management to have concluded that another employee made the complaint.

An anonymous complaint to MSHA about a health or safety violation is protected activity. Similarly, discrimination based on suspicion that an employee made an anonymous complaint, even when the employee did not make the complaint, can constitute a violation of §105(c). Moses v. Whitley Development Corp., 4 FMSHRC 1475 (Aug. 1982). In the instant case, the complaint was anonymous and there is no confirmation in the record that Bragg made the complaint. In Moses, the Commission found discrimination when the operator harassed the complainant on suspicion that he had made an anonymous complaint to MSHA. In Moses, the complainant did not make the complaint, but the Commission held that the operator still violated §105(c). 4 FMSHRC at 1480. Citing the legislative history, the Commission stated:

Miners would be less likely to exercise their rights if no remedy existed for discriminatory action based on an operator’s mistaken belief that a miner had exercised a protected right. Indeed, the adverse effect of such action might be even more debilitating than discrimination over actual protected activity. In such instances, employees could reasonably fear that they might be treated adversely on the basis of suspicion alone, and thus would seek to avoid even the appearance of asserting their rights.

4 FMSHRC at 1480.

In the instant case, there is substantial evidence that management suspected Bragg of making the anonymous complaint to MSHA concerning the hazards with the bulldozer. Bragg understood Underwood’s comments to him, as well as the increased hostility, as stemming from management’s belief that he had complained to MSHA. Tr. 40-44. Underwood denied making threatening comments to Bragg concerning the citation and Turner testified that the change in treatment towards Bragg stemmed from a complaint by the maintenance manager. Tr. 74-75, 109. This conflict in testimony cannot be resolved in these proceedings. The Commission has made clear that the scope of a temporary reinstatement proceeding is limited, and the judge should not resolve conflicts in testimony or make credibility determinations. CAM Mining, 31 FMSHC at 1089. The judge’s role is to “evaluate[] the evidence of the Secretary’s prima facie case and determine[] whether the miner’s complaint of discrimination ‘appear[s] to have merit.’” Id. (citations omitted).

Bragg’s pre-shift reports would be enough to find protected activity. However, viewed as a whole, his pre-shift complaints, verbal complaints, and suspicion of anonymous complaints, all about the same subject matter, add up to protected activity.

Nexus between the protected activity and the alleged discrimination

Having concluded that Bragg engaged in protected activity, the examination now turns to whether that activity has a connection, or nexus to the subsequent adverse action, namely the October 19, 2012 layoff.

The Commission has recognized that a nexus between protected activity and a subsequent adverse action is rarely supplied exclusively by direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. More often, the determination of nexus is made by the trier of fact drawing an inference from circumstantial evidence. Id. In the instant case, inferences may be drawn from the evidence presented. 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; and (3) coincidence in time between the protected activity and the adverse action. CAM Mining, LLC, 31 FMSHRC at 1089. The Commission has also stated that it is appropriate for the judge to look at instances of disparate treatment of the complainant. See, e.g., Phelps Dodge Corp., 3 FMSHRC at 2510.

Hostility or animus towards the protected activity

As the Commission has noted, A[a] three week span can be sufficiently close in time@, especially when there is evidence of intervening hostility, animus or disparate treatment. CAM Mining, LLC, 31 FMSHRC at 1090. Likewise, in All American Asphalt, a 16-month gap existed between the miners= contact with MSHA and the operator=s failure to recall miners from a layoff; however, only one month separated MSHA=s issuance of a penalty resulting from the miners= notification of a violation and that recall failure. Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999). Similarly, in Pamela Bridge Pero v. Cyprus Plateau Mining Corp., the Commission found a five-month gap to constitute close temporal proximity between the protected activity and the adverse employment action. 22 FMSHRC 1361, 1365 (Dec. 2000).^{^[7]} The Commission stated AWe >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.=@ Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34, 47 (Jan. 1999) (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991).

Under Commission precedent, both the Secretary’s more liberal timeframe and the operator’s more conservative timeframe satisfy the proximity in time factor. I find that the time between Bragg’s protected activity and his layoff was approximately two and a half months. This time frame is not so short that it alone would create a presumption of a nexus, however it is not so long that it is implausible that the adverse employment action stemmed from the protected activity. Taken together with the other factors, I find that there was a nexus between the protected activity and the adverse employment action.

The operator has requested that if temporary reinstatement is granted, (1) I demand a report from the Secretary by February 6, 2013; (2) that the operator be permitted to rehire Bragg to an alternative job with the same pay and benefits; and (3) that I take into account alleged statements that Bragg made concerning a planned retirement within six months. With regard to the first request, §105(c)(3) of the Act provides time limits for the Secretary to follow, and it is presumed that the Secretary will follow the prescribed timeframes. With regard to the second request, I order the operator to immediately reinstate Bragg to the position he held prior to his layoff on October 19, 2012, at the same rate of pay and benefits for that position, or to a similar position with the same or equivalent duties, at the same rate of pay and benefits. With regard to the third request, I place no durational limits on the reinstatement.

Conclusion

In concluding that Bragg=s complaint herein was not frivolously brought, I give significant weight to the evidence of record that he had a history of complaining about the door seals in written reports and verbally. I also conclude that the operator showed animus toward Bragg’s protected activities and there was a sufficiently close connection in time, approximately two and a half months, between the suspicion of his complaint to MSHA and his layoff.

The operator asserts that its layoff of Bragg was not the result of discrimination, but simply part of a larger reduction in force. Although the operator may, in any subsequent proceedings, prevail on the merits, I find that the operator’s evidence on this record is not sufficient to demonstrate that Bragg’s complaint of discrimination was frivolously brought. To the contrary, since the allegations of discrimination have not been shown to be lacking in merit, I find they are not frivolous.

ORDER

Based on the above findings, the Secretary=s Application for Temporary Reinstatement is granted. Accordingly, Maple Coal Company is ORDERED to provide immediate reinstatement to Wayne Bragg, at the same rate of pay for the same number of hours worked, and with the same benefits, as at the time of his discharge.

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 Maple Coal did not violate Section 105(c) of the Act.

/s/ William S. Steele

William S. Steele

Administrative Law Judge

Distribution: (Certified Mail)

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave., Suite 1500, Pittsburgh, PA 15222

Matthew N. Babington Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247

Wayne Bragg, P.O. Box 174, Kimberly, WV 25118

^{^[1]} Under the Act, protected activity includes filing or making a complaint of an alleged danger, or safety or health violation, instituting any proceeding under the Act, testifying in any such proceeding, or exercising any statutory right afforded by the Act. See 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).

^{^[2]} ASubstantive evidence@ means Asuch relevant evidence as a reliable mind might accept as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

^{^[3]} The pre-operational reports are also referred to as “per-shift reports.”

^{^[4]} Turner testified that the first step of the 5-point system involved HR looking at discipline and attendance problem. He then skipped over number two and went straight to number three. Therefore, I am presuming he intended to testify that the first two steps were conducted by HR.

^{^[5]} Turner testified that there were multiple versions of the spreadsheet, but that the one submitted into evidence was the one he worked off of for layoff purposes. Tr. 83.

^{^[6]} It should be noted that treatment of Bragg deteriorated after he was suspected of having made the complaint to MSHA, with a threatening statement made less than one week after the inspection. Tr. 40, 41-42.

^{^[7]} In Pero, the complainant also suffered increased scrutiny in the period following her protected activity. 22 FMSHRC at 1362.