FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: (412) 920-7240

FACSIMILE: (412) 928-8689

February 6, 2012

AMENDED DECISION AND ORDER

REINSTATING CHUCK E. MOSBY

Appearances:   Edward V. Hartman, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago, Illinois, representing the Secretary of Labor (MSHA) on behalf of Chuck E. Mosby

 Donna Vetrano Pryor, Esq., Patton Boggs LLP, Denver, Colorado, representing Mulzer Crushed Stone, Inc.

Before:             Judge Andrews 

Pursuant to section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary@) on January 6, 2012, filed an Application for Temporary Reinstatement of miner Chuck E. Mosby (AMosby@) to his former position with Mulzer Crushed Stone, Inc., (AMulzer@ or ARespondent@) at the Rockport Plant pending final hearing and disposition of the case.

On December 8, 2011, Mosby filed a Discrimination Complaint alleging, in effect, that his termination was motivated by his protected activity. In the Secretary=s application, she represents that the complaint was not frivolously brought, and requests an Order directing Respondent to reinstate Mosby to his former position as a machinist.

Respondent filed a request for hearing on January 17, 2012. An expedited hearing was held in Jeffersonville, Indiana on January 26, 2012. The Secretary presented the testimony of the complainant Mosby, and the Respondent did have the opportunity to cross-examine the Secretary=s witness, and present testimony and documentary evidence in support of its position. 29 C.F.R. '2700.45(d). At the hearing, the parties agreed that any temporary reinstatement should be economic only.

For the reasons set forth below, I grant the application and order the temporary economic reinstatement of Mosby.

Discussion of relevant 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 Ato play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif 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^st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95^th Cong., 2^nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623 (1978).

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 the 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).

Temporary 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. Sec’y 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 determining Awhether the evidence mustered by the miners to date established that their complaints are nonfrivolous, not whether there is sufficient evidence of discrimination to justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d at 744.

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 the adverse action complained of 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).

However, in the instant matter, Mosby 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 Areasonable cause to believe@ standard. Thus, there must be Asubstantial 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 the 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).

The evidence

On December 3, 2011, Mr. Mosby executed a Summary of Discriminatory Action, filed with his Discrimination Complaint of December 8, 2011. In this statement he wrote that on November 28, 2011, he was terminated from his job after eleven years of employment. He stated he was accused of lying to the company by Kevin Fulkerson, a maintenance Supervisor, who had gone through his toolbox and confiscated a personal notebook. Mosby wrote that he kept these notes regarding anything he spoke to the company about, from suggestions of improvement or efficiency, to violations, including times he had talked to management about safety violations or even EPA violations. He reported that a week or so before he was terminated he told his foreman, Joe Beckhort [sic], about an oxygen cylinder that had the cap missing and was not tied down; it had been removed from a welding cart. He stated that Joe Beckhort [sic] listened, noted it, and said he would take care of it, but the next day the problem had not been fixed. Mosby also recalled an incident about nine months before his termination when, following a three-day lay-off, he was asked in a very intimidating manner by Safety Director Brian Peter if he had anything to report him. Mosby wrote that, at the time, he was scared of losing his job, and said no. He ended the summary statement by concluding that because of finding his notebook, they were accusing him of lying. (Exh. S-2).

Submitted with the application was the January 5, 2012 Declaration of Thomas J. Pavlat, a Special Investigator employed by the Mine Safety and Health Administration. Mr. Pavlat stated that he had investigated the discrimination claim of Chuck E. Mosby against Mulzer Crushed Stone, Inc. He had determined the following:

c.         On or about November 8, 2011, the affected miner, Chuck E. Mosby, engaged in protected activity by reporting to his immediate supervisor, Joe Beckort, that an oxygen cylinder at Respondent=s worksite was missing a cap and was not properly secured.

d.        On November 28, 2011, after returning to work from the Thanksgiving holiday, Mr. Mosby was terminated by respondent.

(Exh. S-3). The Special Investigator concluded that evidence exists that Mulzer Crushed Stone, Inc., Adecided to discharge Mr. Mosby based, in part, on his making an internal safety complaint,@ and determined that the discrimination complaint was not frivolously brought. (Id.)

The Respondent disputes that there is any nexus between Mosby=s safety complaint regarding the oxygen cylinder and any adverse action, namely his subsequent termination. Instead, Mulzer contends that Mosby was terminated in accordance with its progressive disciplinary policy. Mosby had already received verbal discussions regarding his behavior and a three-day layoff. Moreover, Respondent argues that Mosby did not engage in protected activity by keeping a log of safety issues that he neither reported nor corrected.

Stipulation of Facts

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

I.         Mulzer Crushed Stone, Inc., did business and operated a mine known as the ARockport Plant@ and was an operator as defined in Section 3(d) of the Mine Act, 30 U.S.C. Section 802(d).

II.        Mulzer=s operation is located at or near Rockport, Indiana, and is a mine, the products of which enters commerce or the operations of products which effect commerce, all within the meaning of Section 3(b) and 4 of the Mine Act, 30 U.S.C. Section 802(d) and 803.

III.      The affected miner, Mr. Chuck Mosby, worked for Respondent in its

            Rockport Plant as a maintenance employee, and is a miner within the meaning of Section 3(g) of the Mine Act, 30 U.S.C. Section 802(g).

IV.      On or about 7 or 8 November, 2011, Mr. Mosby reported to his immediate supervisor, Joe Beckort, that a compressed gas cylinder was missing a cap and was not properly secured.

V.        On November 28th, 2011, upon returning to work from the Thanksgiving holiday, Mr. Mosby was terminated by Mulzer Crushed Stone, Inc.

VI.      This temporary reinstatement proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission, and its designated Administrative Law Judge pursuant to Sections 105 and 116 of the Mine Act.

            Testimony of Chuck E. Mosby

Chuck Mosby, the Complainant, testified that he began working in a machine shop after graduating high school in 1982. (TR 16). He began working as a machinist in the maintenance department for Mulzer Crushed Stone=s Rockport, Indiana facility in November, 2000. (TR 14-15). In that capacity, he stated that he worked in a machine shop, operating lathes, milling machines, drill presses, and any other necessary machine to complete maintenance tasks. (TR 15). Mosby stated that on November 7, 2011, he observed an unsecured oxygen cylinder without a permanent cap. (TR 21). He described the cylinder as four to five feet tall, and approximately eight inches in diameter, with a valve on top. (TR 20). The cylinder is used for cutting metals or welding, and contains a high amount of pressurized gas. (Id.) He opined that the situation presented a safety hazard affecting those working in the area because if the cylinder would fall over and knock the valve off, the tank would become a projectile. (TR 21). According to Mosby, gas cylinders are supposed to be secured with a tie, strap or chain, whether they are stored or moved, to prevent tipping or falling. (TR 22). Upon observing the gas cylinder, Mosby stated that he reported to his supervisor, Joe Beckort, that the cylinder was standing unsecured and needed to be strapped. (TR 22-23). Mosby said he saw the cylinder again towards the end of his shift on the following day in the same location, but did not make any further report to anybody. (TR 23-24).

Mosby then stated that he clocked in on Monday, November 28, 2011, his first day of work after the Thanksgiving holiday, and was called to the office by Kevin Fulkerson, the maintenance superintendent. (TR 24-25). The meeting included Fulkerson, Mike Hughes, superintendent of the Rockport yard, and Joe Beckort, Mosby=s shop supervisor. (TR 25). Mosby testified that he was fired during that meeting, and believed his termination was due to his complaint about the gas cylinder. (TR 25-26).

On cross-examination, Mosby admitted that he did not resolve the situation regarding the gas cylinder, but reported it to his supervisor, which he believed fulfilled his obligations under the employee manual. (TR 29-30, 32-33). He added that it would have taken him approximately ten to fifteen minutes to resolve the situation himself, but he was never told to do so. (TR 33, 54). In further describing his work, Mosby stated that his duties varied, and he did whatever the foreman asked him to do, and he was to complete his tasks expeditiously to move on to the next assignment, rather than look for violations and correct them on his own. (TR 50-51).

Mosby also testified about notes he kept in a calendar book regarding safety issues, or other issues that bothered him. (Exh. R-C; TR 34-45). He made observations of safety hazards, some of which he reported, and others he did not. (TR 37-44). Mosby acknowledged that he had been disciplined for his actions, including kicking an empty plastic trash can, and being accused of not properly maintaining a piece of equipment. (TR 46-47).

Testimony of Jeff Mulzer, Vice President

Jeff Mulzer, Vice President for Administration with Mulzer Crushed Stone, testified on behalf of the Respondent. Mulzer stated that he made the determination to terminate Mosby=s employment after consulting with Gloria Allen, Director of Human Resources, and Brian Peters, Director of Safety. (TR 58). He likewise spoke with Mr. Fulkerson, but neither Fulkerson or Joe Beckort were part of the final determination regarding Mosby=s termination. (TR 59). He was unable to recall any discussion regarding unsecured gas cylinders prior to the issue being raised at the hearing. (Id.) Mulzer stated that the decision to terminate Mosby was in accordance with the company=s progressive disciplinary system, in which an escalating pattern is used to correct employee behavior. (TR 60-61).

Mulzer recalled notes regarding verbal warnings, and he likewise had recollection that Mosby was given a three-day layoff recently, which factored into the decision to terminate Mosby=s employment. (TR 61). Noting that he did not have a calendar in front of him, he was unable to recall when the decision to terminate Mosby occurred, but stated that it was after they reviewed his notebook. (TR 62-67, 73). He initially testified on cross-examination that he did not touch Mosby=s notebook, but spoke with Athe people who did the investigation.@ (TR 67). Mulzer later testified that he was involved in finding the notebook, after determining, in consultation with Ms. Allen, that it was reviewable since it was stored in a company toolbox on company property. (TR 69-70). According to Mulzer, they reviewed the information written in the notebook, looked at the items recorded and determined which had been reported and which had not, and considered Mosby=s work history. (Id.) Mulzer noted that he was aware of Mosby=s Areputation for being bombastic@, and that he Aunderstood that he was somebodyYto complain whenever he wanted to.@ (TR 68).

Testimony of Thomas J. Pavlat

Thomas Pavlat, a special investigator for the Mine Safety and Health Administration (AMSHA@) in the North Central District=s Peru, Illinois office, testified for the Respondent. Pavlat stated that he made an initial determination of the case, based on information he had received by late December, 2011. (TR 89-90). Based on that information, he determined that Mosby=s claim was not frivolously brought, and issued a declaration to that effect on January 5, 2012. (TR 90, Exh. S-3). In making that determination, Pavlat stated that his investigation was limited to conversation with Mosby. (TR 90-91). After making the initial determination, Pavlat testified that he continued his investigation, interviewed several witnesses, collected documents, and completed an analysis of this information, which contributed to the letter of January 20, 2012, notifying Mosby of the MSHA decision on his discrimination claim. He further testified that based on the evidence gathered during this subsequent investigation on the merits of the case, he then felt the claim was frivolously brought. (TR 92-93, 102-103, Exh. R-D).

Exhibits

The Secretary submitted three exhibits into the record at the hearing and they were duly admitted into evidence. (TR 18). Exhibit S-1 is the Application for Temporary Reinstatement, filed by the Secretary on January 6, 2012. The Secretary concluded, after an initial investigation, that the discrimination complaint was not frivolously brought.

Exhibit S-2 includes Mosby=s complaint to MSHA regarding his dismissal. Mosby completed MSHA Form 2000-124, entitled ADiscrimination Report@, on December 3, 2011, and Discrimination Complaint, MSHA Form 2000-123, which was filed by Mosby on December 8, 2011. In the handwritten December 3, 2011 Report, Mosby wrote that he was terminated from employment after Kevin Fulkerson accused him of lying to the company. Mosby further noted that Fulkerson went through his toolbox and confiscated his personal notebook, which he had used to make personal notes, suggestions, or notes regarding safety or EPA violations to Apeople and management@. In addition, Mosby noted that he informed Beckort about the oxygen cylinder being unsecured and missing a cap. He noted that the problem had not been fixed as of the next day, and that he kept the notebook, in part, because he had experienced Aproblems for several years getting the company to take my problems seriously.@ He concluded the report by noting that he had not reported anything to Brian Peter when asked nine months prior because he felt intimidated and was scared of losing his job.

The December 8, 2011 Complaint was filed by Mosby with the Indianapolis Field Office in MSHA=s North Central District. It identifies Mulzer Crushed Stone as the Respondent Organization, and Kevin Fulkerson, Maintenance Superintendent, as the person responsible for the discriminatory action.

Exhibit S-3 is the Declaration of Thomas J. Pavlat, signed January 5, 2012. In the declaration, Pavlat stated that he had investigated Mosby=s discrimination claim, and at that point in his investigation, Pavlat determined that on or about November 8, 2011, Mosby engaged in protected activity by reporting the oxygen cylinder=s condition to his immediate supervisor, Beckort. He likewise noted that Mosby was terminated upon reporting for work on November 28, 2011. Based on the information he had, Pavlat concluded that evidence existed that Mulzer decided to discharge Mosby Abased, in part, on his making an internal safety complaint.@ He concluded, A[t]hus, it is my determination that the discrimination complaint filed by Chuck E. Mosby was not frivolously brought.@

Respondent likewise entered four exhibits into the record at the hearing and they were duly admitted into evidence. (TR 31-32, 35). Exhibit R-A is an AAcknowledgement of Receipt@, purportedly a page from Mulzer=s published employee manual. It is signed by Chuck Mosby and a company representative. Exhibit R-B includes the cover page, pages 9-10, and 33-34 of the 2007 Edition AEmployee Manual@ for Mulzer Crushed Stone, Inc., Materials Transport, Inc., and Shamblin Stone, Inc.

Exhibit R-C includes seventeen side-by-side pages of the calendar books used by Mosby to record his notes, suggestions and observations of safety complaints. The exhibit consists of selected pages from 2007 and 2010 date books. The book contains numerous entries, including observations of safety violations. Mosby noted that the book itself is not always indicative of the dates of the incidents; rather, it was a spare notebook which he utilized for the previously stated purpose, and if the entry had a date handwritten with it, that was the date of the occurrence. (TR 49).

Exhibit R-D is the letter dated January 20, 2012, from MSHA=s North Central District Manager to Mosby. The letter advises Mosby that MSHA=s review has determined that Afacts disclosed during the investigation do not constitute a violation of Section 105(c). Therefore, discrimination, within the confines of the Mine Act, did not occur.@

The record includes significant discussion about the relevance of Pavlat=s investigation and determinations subsequent to his January 5, 2012 declaration, which may have been relied upon in the January 20, 2012 letter. (TR 78-88, 93-101). Pavlat=s testimony reflects a change in his position after a further in depth evaluation of the circumstances. However, the January 20, 2012 letter is neither signed by him, nor does it state that the claim was frivolously brought. Rather, the letter reflects that the Secretary will not proceed with a discrimination case on Mosby=s behalf, under Section 105(c)(2) of the Mine Act. The letter further advises Mosby of his right to proceed with an action on his own behalf, under Section 105(c)(3) of the Mine Act.

The Commission has noted that the Secretary=s decision Anot to proceed with the discrimination complaint does not transform that complaint into a frivolous action.@ Secretary of Labor on behalf of Mark Gray v. North Fork Coal Corp., 33 FMSHRC 27, 41 (Jan. 2011). The Commission further explained that, A[t]o the contrary, not only does the Secretary=s negative determination not reduce the complaint into a frivolous claim, the Commission has explicitly acknowledged that it >may find discrimination where the Secretary has not= and the >the Secretary=s determination not to prosecute [a] discrimination caseYis not probative=@ of whether discrimination occurred. Id., quoting Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1117 (July 1995).

Accordingly, Exhibit R-D, and the information contained therein, may be relevant to the consideration of Mosby=s underlying complaint. It is not relevant, however, to the matter presently at issue, namely whether the claim was frivolously brought. As such, it is not considered in this decision.

Findings and conclusions

Protected activity

On about November 7 or 8, 2011, Mosby advised his supervisor, Joe Beckort, of the presence of an oxygen cylinder which was standing unsecured, and uncapped. 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)(Emphasis added). By notifying his supervisor of the unsecured, uncapped gas cylinder, I find that Mosby engaged in protected activity.

Moreover, Mosby stated that he believed his suggestions or safety complaints were neither acted upon nor respected. His aggravation led him to a discussion with a counselor, who suggested Mosby record his thoughts in a diary-like log book. Mosby followed this suggestion and began making what he described as observations of safety issues or violations, or suggestions to improve efficiency. Mosby asserted that this log was never intended to be used to attack the company, but rather, was his personal book designed to prevent him from becoming upset.

The Respondent argues that keeping a log book is not protected activity, citing Collins v. Federal Mine Safety and Health Review Com'n, 42 F.3d 1388 (6^th Cir.), 1994 WL 683938 (C.A.6) (unpublished). The only similarity between Collins= and Mosby=s circumstances is that each of them kept their respective safety logs private; however, their reasons for doing so diverged greatly. In Collins, for example, the Claimant knowingly violated the law, and kept a record of his activities solely to protect himself and his job, if ever confronted with his violations. (1994 WL 683938 at 4). The Court considered Collins= motivation in determining that Agranting relief would frustrate the congressional purpose of encouraging miner participation.@ (Id.)

Mosby did not use the log as a means to cover any violative actions. Instead, Mosby used his log to identify violations or suggestions, and compile them in written form to avoid the aggravation of being ignored by the company. Although he stated that he never showed the log to anyone, or even told anyone about its existence, he acknowledged that some of the items found in the log were raised with supervisors, while others were not.

After considering the circumstances of this case, I find Mosby further engaged in protected activity by keeping the safety log, and reporting some of the safety conditions contained therein to company personnel.

Nexus between the protected activity and the alleged discrimination

Having concluded that Mosby engaged in protected activity, the examination now turns to whether that activity has a connection, or nexus to the subsequent adverse action, namely Mosby=s November 28, 2011 termination.

Respondent has cited Secretary of Labor on behalf of Ronald A. Markovich v. Minnesota Ore Operations, in which the Administrative Law Judge noted that timing of a discharge may be evidence of a nexus with protected activity, but Athat is not always the case.@ 18 FMSHRC 1250, 1256-1257 (July 1996)(ALJ). As the ALJ further observed, 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 a nexus is made by the trier of fact drawing an inference from circumstantial evidence. Id. 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 at 2510.

Hostility or animus towards the protected activity

Mosby did not recall being treated differently by Beckort after raising the issue with the gas cylinder. Moreover, in deciding to terminate Mosby, Jeff Mulzer stated that he and Beckort did not directly speak about this incident; however, it is unclear from the record whether Beckort spoke to any of the other individuals who contributed to the decision. Moreover, Mulzer was uncertain about who alerted him to the presence of Mosby=s log book of safety issues, including that it Acould=ve been Beckort.@ (TR 70). The safety log listed a number of observations by Mosby regarding safety concerns and suggestions. Mosby did not always report his safety concerns, believing that his observations were not respected or acted upon. In addition, Mulzer acknowledged that he was aware of Mosby=s reputation to be Abombastic@ and AsomebodyYto complain whenever he wanted to.@ Considering the record as a whole, I find that Respondent had hostility or animus towards Mosby=s protected activity.

Knowledge of the protected activity

Mosby informed his supervisor, Beckort, about a safety violation. As the shop supervisor, and Mosby=s direct supervisor, he was a representative of the operator. Thus, the Respondent was aware of the safety complaint. Moreover, Jeff Mulzer testified that he received information regarding the existence of Mosby=s safety log. He acknowledged that he was involved in finding the notebook. At first he said that he did not touch the notebook, but only spoke to those who investigated the situation. Later, however, he stated that Awe@ determined that they could rightfully access Mosby=s toolbox, take the notebook, and review the information. The record is clear that whether Mr. Mulzer was personally involved, or relied on information provided by Respondent=s employees after their investigation, Respondent was aware of the presence of the notebook and the information contained therein.

Accordingly, I find sufficient evidence that the Respondent had knowledge of Mosby=s protected activity.

Coincidence in time between the protected activity and the adverse action

In the present matter, the time between Mosby=s protected activity, namely his November 7-8, 2011 safety complaint regarding the unsecured and uncapped oxygen cylinder, and his actual termination, on November 28, 2011, was approximately twenty days. According to Mulzer, the decision to terminate Mosby was made on either November 25, 26 or 27. Moreover, the record is entirely unclear as to when Mosby=s notebook was obtained and reviewed by the Respondent=s employees.

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). 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).

The time between Mosby=s most recent safety complaint until the termination was approximately twenty days. The record is unclear about when Mosby=s safety log was discovered, but it may have been in that intervening twenty-day period. Moreover, although Mosby was terminated on November 28, 2011, the decision to terminate him was made one to three days prior. Thus, I find that the time span between the protected activities and the adverse action is sufficient to establish a nexus.

Disparate Treatment of Mosby

Mosby acknowledged two previous instances of discipline for his behavior or actions at the worksite, including a verbal discussion and a three-day layoff. In describing the Respondent=s progressive disciplinary process, Mr. Mulzer indicated that the typical pattern included, Aa verbal warning, maybe multiple verbal warnings, written warning, possibly one of those three-day layoff[s], and then maybe a final warning or not, and then termination.@ (TR 60). On cross-examination, Mulzer added that following the progressive policy depends on the circumstances and the Aseriousness of the incident and the situation.@ (TR 62).

Both Mosby and Mulzer identified at least one verbal warning, and Mulzer believed the file may have included notes of multiple verbal conversations. Neither identified a written warning having been issued to Mosby. Likewise, Mosby was not afforded the tentative final warning. Although Mulzer noted that the Respondent=s progressive disciplinary policy can be altered for serious situations, he offers no insight as to why Mosby was not afforded each step of the identified policy.

Accordingly, I find Respondent disparately treated Mosby, because he was treated differently than provided for by the Respondent=s disciplinary policy.

Having considered the four factors above, I find that the Secretary has established a nexus between Mosby=s protected activity and the Respondent=s subsequent adverse action.

Conclusion

In concluding that Mosby=s complaint herein was not frivolously brought, I give significant weight to the evidence of record that he had a history of and engaged in a number of protected activities including the most recent complaint regarding the unsecured and uncapped oxygen cylinder. I also conclude that Respondent showed animus toward Mosby=s alleged protected activities and that there was a close connection in time, approximately three weeks, between his first alleged protected activity and his November 28, 2011 discharge. That time may be less, depending upon the time the safety log was discovered and reviewed.

Respondent asserts that its discharge of Mosby was based on his unprotected activities, such as violating the company=s policy on reporting or resolving safety violations. In addition, it asserts that their decision was made in accordance with its established escalating disciplinary plan. Although Mulzer may, in any subsequent proceedings, prevail on the merits, I find that Respondent=s evidence on this record is not sufficient to demonstrate that Mosby=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, Mulzer Crushed Stone, Inc., based upon agreement of the parties, is ORDERED to provide immediate economic reinstatement to Chuck E. Mosby, 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.

/s/ Kenneth R. Andrews

Kenneth R. Andrews

Administrative Law Judge

Distribution: (Certified Mail)

Donna Vetrano Pryor, Esq., Patton Boggs LLP, 1801 California Street, Suite 4900, Denver, CO 80202

Edward Hartman, Esq., and Matthew Scheff, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, Suite 844, Chicago, IL 60604