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 8, 2012

DECISION

Appearances:   Isabella M. Finneman, Esq., Katherine M. Kasameyer, Esq., U.S. Department of  Labor, Office of the Solicitor, 90 7th Street, Suite 3-700, San Francisco,

                         California 94103

             Kurt D. Hendrickson, Esq., Knox Lemmon Anapolsky & Schrimp LLP, 300  Capitol Mall, Suite 1125, Sacramento, California 95814 

Before:             Judge John K. Lewis

This case is before me upon a complaint of discrimination brought by the Secretary of Labor (“Secretary”) on behalf of Lance Carter (“Carter”), a miner, against Kino Aggregates, Inc., a corporation (“Kino Aggregates”) and Noble Plant, an individual, pursuant to § 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c).

Complainant Carter alleges that he had been unlawfully discharged by Respondents, Kino Aggregates and Noble Plant, in December 2009, during a Mine Safety and Health Administration (“MSHA”) inspection, due to Mr. Carter having engaged in protected activities, including raising various safety complaints regarding Respondents’ facility. Respondents allege that Mr. Carter was not, in fact, fired in December 2009, but voluntarily relinquished his employment by walking off the job. Additionally, Respondents allege that Mr. Carter was not recalled after a pre-planned lay-off due to his past poor work performance.

For reasons set forth below I find in favor of Complainant.

I. Procedural History

On February 8, 2010, Carter filed a complaint with MSHA alleging discrimination under Section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). After investigating the allegations, the Secretary decided there was sufficient evidence of discrimination to file a complaint on Mr. Carter’s behalf on May 21, 2010, pursuant to section 105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1). A hearing was held in Sacramento, California on November 2 and 3, 2011, at which both the Secretary and Respondents presented evidence and testimony. Subsequent to the hearing both parties submitted briefs which have been received and considered in rendering this decision.

II. Summary of the Testimony

A. Lance Carter

Kino Aggregates is owned by Respondent, Noble Plant, and the facility is essentially a river bed rock quarry. Kino Aggregates’ main customer, DeSilva Gates, is a highway construction business whose hot plant that manufactures asphalt lies adjacent to the Kino Aggregates facility. (See inter alia Tr. 20, 25-27, Vol. I; GX 1). construction business whose hot plant that manufactures asphalt lies adjacent to the Kino Aggregates facility.

Before his employment at Kino Aggregates, Mr. Carter had worked for Matthew Ready Mix for about twelve years at its Orville Plant. He was initially in charge of computers. In his final three years he was head of maintenance, being responsible for Occupational Safety and Health Administration (“OSHA”) compliance and highway truck safety compliance. He was also involved in the design and set-up of computer-controlled machinery, as well as the training of operators. He reportedly doubled production for Matthew Ready Mix during this period. (Tr. 15, Vol. I).

After working for Matthew Ready Mix, Mr. Carter worked for Baldwin Contracting (“Baldwin”), providing “modern technology to their rock plants.” (Tr. 16, Vol. I). Mr. Carter was also a plant foreman for Baldwin, being responsible for MSHA compliance. Id. He later worked as a mechanic for Lone Star Company and a quarry manager for Eagle Aggregates. Id. At Eagle Aggregates Mr. Carter “built the plant from flat ground” and “started the MSHA process from zero.” Mr. Carter testified he received eighty hours of training from MSHA. (Tr. 16-17, Vol. I).

In approximately July 2007, Mr. Plant hired Mr. Carter to work at Kino Aggregates. (Tr. 17, Vol. I). At the time of Mr. Carter’s hiring, Kino Aggregates only had a small plant in operation and Mr. Carter was initially hired as a union mechanic. Much of its machinery and “MSHA infrastructure” was being removed due to the dissolution of a partnership between Mr. Plant and Candy Vargas. (Tr. 18-19, Vol. I). Mr. Plant asked Mr. Carter to design a new plant; Mr. Carter designed the facility’s electrical and water systems, decided upon necessary machinery, and negotiated for and arranged the purchase of such equipment. (Tr. 20-21, Vol. I).

By June 1, 2008, Kino Aggregates was in full production. (Tr. 21, Vol. I). During “the busy season” the plant usually ran five to six days per week at ten hours a day. (Tr. 22, Vol. I). Due to the muddy conditions during the winter time, it was difficult to separate quarried materials into their various sizes. Kino Aggregates shut down for “winter maintenance and up-grades” because it was not cost effective to process materials during the winter months. (Tr. 22, Vol. I).

At Kino Aggregates Mr. Carter “carried the MSHA program.” (Tr. 28, Vol. I). He conducted all MSHA training, documented all safety meetings and was responsible for all aspects of the MSHA safety program. (Tr. 28-31, Vol. I). However, while Mr. Carter had complete “administrative responsibility” for MSHA related matters, all decisional authority rested with Mr. Plant. (Tr. 28, 30, 34-35, Vol. I).

During this time period, Mr. Carter expressed safety complaints about the lack of regular plant clean-up schedules and procedures. The build up of dirt and rock created, inter alia, the hazard of miners stumbling on walkways. (Tr. 37-38, 50-54, Vol. I). Mr. Carter also voiced concerns regarding inadequate dust control at the plant. Despite the obvious danger of respirable disease posed by crushed rock dust containing silica, Mr. Carter was unable to persuade Respondent to install an effective dust control system. Besides the danger of silicosis, excess dust also created the danger of mechanical and electrical breakdown. (Tr. 46-52, Vol. I; GX P1).

Additionally, Mr. Carter raised safety concerns regarding the inadequate foundations upon which various plant machines were positioned. The affected machinery could fall over, posing another hazard to miners. (Tr. 58-62, Vol. I). Mr. Carter also complained of the safety dangers associated with an untrained worker – Allen Reiss. Although designated a “night watchman” Mr. Reiss was involved in all aspects of the plant’s operations including the operation of machinery. (Tr. 60-71, Vol. I). Mr. Carter was prohibited by Mr. Plant from giving safety training to Mr. Reiss, based, in part, upon Mr. Plant’s fears that the union would learn of Mr. Reiss’ existence. (Tr. 61-61, Vol. I). The issue of inadequately trained miners was a constant source of friction between Mr. Carter and Respondent. (Tr. 67-69, Vol. I; GX P-1).

By approximately April 2008, Mr. Carter had concluded that he would not be able “to do what was necessary to stay in (safety) compliance.” (Tr. 34, Vol. I). “So as to avoid personal liability” Mr. Carter informed Mr. Plant that he would no longer be able to be responsible for any aspect of compliance with safety rules and wrote a letter to MSHA indicating such. (Tr. 34, Vol. I).

Mr. Carter believed that he would not be able to perform necessary safety functions because Mr. Plant had ignored his various safety concerns in the past. For example, in order to clear debris, miners were required to climb to the top of the plant “scalper.” However, there were no access ways, no ladders, and no walkways. A miner would be required “to climb steel” with no place to tie a safety apparatus. (Tr. 36, Vol. I). The scalper had a series of straight metal pieces that shook at high frequency and looked like a cattle guard at a 90° angle. As it was sometimes muddy and very slippery, a miner could easily lose his balance and slip or fall while swinging a sledge hammer to loosen debris. Mr. Carter once slipped, tumbling about ten feet into the “primary crusher,” suffering bruises. (Tr. 43-45, Vol. I; GX P-1).

On December 16, 2009, Mr. Carter went to work but was experiencing increasing lung pain which he attributed to the dusty conditions at the facility. Mr. Carter radioed James Potts that he would be leaving work early due to pulmonary problems. Mr. Potts said “Okay.” (Tr. 90-91, Vol. I). Mr. Carter also called off the next day, Friday, December 17, 2009. (Tr. 93, Vol. I). Either James or Melissa Potts took his call and again said “Okay.” (Tr. 93, Vol. I). On Monday, December 21, 2009, Mr. Carter telephoned Ms. Potts, again calling off due to illness and requesting permission to see a physician. (Tr. 94-97; GX P-2). The physician reportedly diagnosed Mr. Carter as suffering from “irritant bronchitis from excessive dust.” (Tr. 98).

On December 22, 2009, Mr. Carter returned to work, filled out a time card and handed his physician’s note to Mr. Potts. Id. That day Mr. Carter noticed that an MSHA inspector – Bill Berglof – was on the premises and Mr. Carter began accompanying Inspector Berglof around the facility.

After approximately four hours, Mr. Carter over heard Noble Plant – who had been following the inspection – speaking on his cell phone. Mr. Plant reportedly said: “We’ve got an MSHA inspection going on here, and Lance is pointing out every little thing.” (Tr. 101, Vol. I). In response to a remark that Mr. Carter had reportedly turned Kino Aggregates into MSHA, Mr. Plant stated: “I know. He cut his own throat real bad.” (Tr. 101, Vol. I).

As the MSHA inspector walked to the next site, Mr. Carter approached Mr. Plant who again upbraided Mr. Carter for having called MSHA and the union, and for “pointing out problems.” (Tr. 101, Vol. I). At the end of the conversation, Mr. Plant told Mr. Carter: “Well, as far as I’m concerned, you don’t work here anymore.” Mr. Carter asked: “Are you laying me off…right now or at the end of the day?” Mr. Plant responded: “Right now. Just go.” (Tr. 102, Vol. I). Mr. Carter testified that Mr. Plant never called him back to work after this episode, resolving any uncertainty that this was an actual final work termination as opposed to a temporary lay-off. (Tr. 106, Vol. I).

After this conversation, Mr. Carter applied for unemployment compensation, (Tr. 105, Vol. I), and signed up on the union out-of-work list (Tr. 108, Vol. I; GX P-4). He worked in various temporary jobs after Kino. (Tr. 108-114). At the hearing, Mr. Carter testified that he had been working as a crane operator for approximately one month, beginning this job in September 2011, and expecting such to last until March 2012. (Tr. 14, 114-115, Vol. I). Among his forms of income, Mr. Carter received an inheritance after his father’s death of $30,000 in cash, and a rental home with a fair market value of $120,000. (Tr. 119, Vol. I).

Mr. Carter testified that, due to various financial commitments and his marital breakup, he would never have voluntarily left his employment at Kino Aggregates. (Tr. 118, Vol. I).

B. William Berglof

            At the hearing William Berglof testified that he had been working as an MSHA inspector in December 2009. (Tr. 134, Vol. I). On December 22, 2009, he had gone to Kino Aggregates to perform both an EO1 and health inspection. (Tr. 136-137, Vol. I). He met James Potts who later introduced him to Lance Carter. Mr. Potts indicated that Mr. Carter would accompany Inspector Berglof on his inspection. (Tr. 138). At a certain point Adam Plant also arrived on the scene and instructed Mr. Carter that he should go talk to Noble (Bud) Plant. (Tr. 139, Vol. I). When Inspector Berglof passed near Noble Plant’s truck, Inspector Berglof over heard Mr. Plant tell Mr. Carter “you didn’t have to call MSHA.” (Tr. 141, Vol. I). Later, Inspector Berglof asked Adam Plant where Mr. Carter had gone and was told by Adam Plant: “I think grandfather fired him, but I don’t know for sure.” (Tr. 142, Vol. I).

            Inspector Berglof indicated that he had written several citations during his inspection, some in the presence of Mr. Carter and some in the presence of Adam Plant. (Tr. 143, Vol. I).

C. Adam Plant

            At the hearing, Adam Plant testified that he was employed at Kino Aggregates since June 2003. (Tr. 145-146, Vol. I). The grandson of Noble Plant, Adam Plant was the current plant operator. (Tr. 147, Vol. I). Mr. Plant acknowledged that Lance Carter had “designed and built” the facility. (Tr. 152, Vol. I). Mr. Carter was also responsible for “all the MSHA training and everything” and “was the one responsible for safety on site.” (Tr. 157, Vol. I). Mr. Plant also indicated that Mr. Carter had unsuccessfully attempted to repair a secondary crusher in 2009. (Tr. 160-164, Vol. I).

            Adam Plant had not spoken with Mr. Carter from December 16, 2009, to December 21, 2009, but, due to Mr. Carter’s return of various work items, including a truck, truck keys, and cell phone, Mr. Plant believed that Carter had quit his employment on December 21, 2009. (Tr. 169-171, Vol. I).

            However, on December 22, 2009, Adam Plant observed Mr. Carter and Inspector Berglof performing an inspection. (Tr. 172-173, Vol. I). At some point, Mr. Carter left the inspection and walked by Noble Plant’s truck. Adam Plant did not see Carter stop at the truck nor did he hear any words exchanged between Noble Plant and Mr. Carter. (Tr. 172-173, Vol. I).

D. Melissa Potts

            At the hearing Melissa Potts, granddaughter of Noble Plant, testified that she had worked at Kino Aggregates since April 2004, and had been employed in various positions. Her present job was that of office manager, which included payroll and book-keeping duties. (Tr. 182-185, Vol. I). As office manager, she also reviewed time cards which were located in the scale house next to the time clock. (Tr. 185, Vol. I). The position of office manager also covered other administrative duties. If somebody wanted to go home sick, and could not find Noble Plant, the employee would advise Ms. Potts. (Tr. 186, Vol. I). Further, Ms. Potts was the individual who would approve doctor visits if Mr. Plant was not available. (Tr. 193, Vol. I).

            Ms. Potts further testified that, due to adverse weather conditions impeding plant operations, Kino employees were usually laid off in December. (Tr. 187, Vol. I).

            She did not directly speak to Mr. Carter on December 16, 17, 18 or 19. However, James Potts, her husband, who was hunting on plant property, did telephone her on December 19, 2009, informing her that Mr. Carter had dropped off his pick-up truck, keys, and cell phone next to the scale house. (Tr. 191, Vol. I). On December 21, 2009, Mr. Carter called Ms. Potts, requesting permission to make a physician visit. (Tr. 192, Vol. I).

            On the morning of December 22, 2009, Ms. Potts observed Mr. Carter in the scale house. However, she had no discussions with him. (Tr. 153, Vol. I). At approximately 11:30 a.m. Mr. Carter returned to the office, informing Ms. Potts that “he couldn’t stand” her grandfather. Ms. Potts was unsure of Mr. Carter’s exact words but he informed her that he was no longer going to work at Kino Aggregates, he was quitting, and thought he had a job at DeSilva Gates. (Tr. 194, Vol. I).

            Ms. Potts indicated that all of her and her husband’s income derived from working for her grandfather. (Tr. 197, Vol. I).

E. James Potts

            At the hearing James Potts, husband of Noble Plant’s granddaughter, Melissa, testified that he had been employed at Kino Aggregates since 2004, and was now working as a loader operator. (Tr. 208).

            On December 16, 2009, Mr. Carter had called Mr. Potts over the CB radio, informing him that he “was going home sick.” (Tr. 210, Vol. I). On December 19, 2009, while duck hunting on the plant premises, Mr. Potts noticed that Noble Plant’s 2002 Powerstroke – which Mr. Carter usually drove – was parked with the keys and Mr. Carter’s cell phone inside. Mr. Carter’s welder and various tools were missing. (Tr. 213, Vol. I). Mr. Potts opined that Carter, by December 21, 2009, was no longer employed by Kino Aggregates. (Tr. 217, Vol. I).

F. Noble Plant

            At the hearing Noble (Bud) Plant testified that he was the owner/president of Kino Aggregates. (Tr. 225, Vol. II). Kino Aggregates centered upon crushing aggregates to the specifications of ready-mix plants, principally DeSilva Gates. (Tr. 228, Vol. II).

When Mr. Plant initially hired Mr. Carter, Mr. Carter advised Mr. Plant that he could handle MSHA compliance issues. Mr. Plant entrusted Mr. Carter with the responsibility that Kino was in MSHA compliance. (Tr. 239-240, Vo. II). Mr. Carter had been given authority to resolve safety issues that the plant. (Tr. 241, Vol. II).

             In the summer of 2009, the HP 300 (the secondary plant crusher) seized up and Mr. Carter unsuccessfully attempted to repair it. (Tr. 248-249, Vol. II). Eventually, the machine had to be shipped out for repair at over $40,000 in costs. (Tr. 250, Vol. II). Despite being unsatisfied with Mr. Carter’s machine repair attempts, Mr. Plant felt that Mr. Carter “could run the plant fairly” and planned to “bring (him) back during the off-season.” (Tr. 252, Vol. II).

There was an off-season at Kino Aggregates because, usually, the plant shut down in December. Inclement weather made materials too wet to crush properly and presented various safety hazards. (Tr. 243, Vol. II). On December 16, 2009, Carter had telephoned Plant asking what part he was going “to play in the winter shut down and maintenance and repairing the crushing plant.” (Tr. 253, Vol. II). Plant asked that Carter discuss the question after the shift was over. (Tr. 254, Vol. II). However, Carter left the plant premises on December 16 before again talking to Plant. During the next few days Plant did not communicate with Carter. By December 18, 2009, Plant was uncertain regarding Carter’s employment status and “just figured he quit.” (Tr. 258, Vol. II).

            On December 22, 2009, the day of the MSHA inspection, Carter “punched in” for work. Plant was telephoned by his wife who informed him that Carter was participating in the MSHA inspection. (Tr. 264). Although he observed Carter and inspector Berglof from his pick-up truck, Plant did not drive over to the pair; but, after speaking with his wife, sent his grandson Adam “to follow those guys around and see what was going on.” (Tr. 265-266, Vol. II). Mr. Plant indicated that a bad back required him to use a pick-up truck to conduct his plant management duties. (Tr. 226, Vol. II). At some point Carter walked away from the inspector and passed Plant’s truck. However, Plant did not speak to Carter. (Tr. 266-267, Vol. II).

            It was company policy to pay anybody who punched in on the pay clock and so Carter was paid for his hours on December 22, 2009, despite that Plant no longer considered Carter an employee.

            Plant denied that he had terminated Carter for participating in the MSHA inspection on December 22, 2009, explaining: “He had already quit. How could I terminate him or fire him? I never talked to him.” (Tr. 269, Vol. II). Stating that Kino Aggregates was a union shop, governed by a union contract, and that Carter was a union member, Plant indicated that he had never terminated Carter according to union guidelines or otherwise. (Tr. 233-237, Vol. II).

            Plant had “no idea” whether Carter had complained to MSHA or the union about safety conditions at Kino. (Tr. 270, Vol. II). Nevertheless, it had been Mr. Plant’s “policy for fifty years” to pay individuals if they filed unemployment compensation claims and never to contest such. (Tr. 229, Vol. II).

            On cross examination Mr. Plant conceded that he did not know whether Mr. Carter had called in sick on December 17, 18, or 19. (Tr. 275, Vol. II). He also confirmed telling Mr. Carter to bring his truck to the facility to repair an oil leak for which the company would pay. (Tr. 275-276, Vol. II). Mr. Plant further conceded that Mr. Carter had communicated to him complaints about inadequate clean-up at the facility. (Tr. 277, Vol. II).

            Mr. Plant “definitely thought he (Mr. Carter) was a good employee.” (Tr. 287, Vol. II). Although he was curious as to why Mr. Carter decided to quit, Mr. Plant did not call Mr. Carter to find out the reason for such. (Tr. 287, Vol. II).

G. Diane Watson

            At the hearing Diane Watson testified that she was a supervisory special investigator for the Western District of MSHA. (Tr. 289, Vo. II). She had previously conducted a 110(c) investigation for Kino Aggregates in 2006. In February 2010, she revisited Kino to investigate the training of an individual who was being exposed to mine hazards – Allen Reiss. (Tr. 290-291, Vol. II). She questioned Noble Plant who indicated that Mr. Reiss was a night watchman who sometimes operated a forklift and other equipment. Mr. Plant was unaware of any training that Mr. Reiss had undergone. Mr. Plant’s granddaughter, Melissa Potts, was unable to find any training records. (Tr. 291-292, Vol. II).

            Ms. Watson had never seen training records of Mr. Reiss previously admitted by Respondent. (See inter alia Tr. 292-293, Vol. II; GX P-10).

III. Findings of Fact and Conclusions of Law

            Under established Commission law, a complainant establishes a prima facie case of a violation of section 105(c) if a preponderance of the evidence proves (1) that the complainant engaged in a protected activity and (2) that the adverse action complained of was motivated in any part by the protected activity. Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 329 (Apr. 1998); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, sub nom. Consolidation Coal Co. v. Marshall, 63 F. 2d 1211 (3rd Cir. 1981).

            The mine operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part motivated by the protected activity. Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n. 20 (Apr. 1981). If the mine operator cannot rebut the prima facie case, it may defend affirmatively by proving that it would have taken the adverse action based upon the miner’s unprotected activities alone. Driessen, 20 FMSHRC at 328-29; Pasula, 2 FMSHRC at 2800. In analyzing a business justification as an affirmative defense for an adverse action, the Commission has held that:

The proper focus, pursuant to Pasula, is on whether a credible justification figured into motivation and, if it did, whether it would have led to the adverse action apart from the miner’s protected activities…[T]he narrow statutory question is whether the reason was enough to have legitimately moved that operator to have disciplined the miner. (Citations omitted).

Sec’y 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).

            In evaluating whether a complainant has proven a casual connection between protected activities and adverse action, the following factors are to be considered: (1) knowledge of the protected activity; (2) hostility or animus towards protected activity; (3) coincidence in time between protected activity and adverse action; and (4) disparate treatment. Chacon, 3 FMSHRC at 2516-17. The nexus in time between the protected activity and the adverse action can, standing alone, establish a sufficient basis upon which to find improper motive to terminate. Sec’y of Labor on behalf of Clay Baier v. Durango Gravel, 21 FMSHRC 953 (Sept. 1999). The ultimate burden of persuasion is with the Complainant. Pasula, 2 FMSHRC at 2800.

            I find that, for reasons discussed infra, the Complainant has carried his burden of proving that Respondent discharged him in violation of the anti-discrimination provisions of section 105(c) of the Act.

A. Protected Activities

The clear preponderance of the evidence establishes the first element of a prima facie case of a violation of section 105(c). At hearing Respondent’s witnesses, including Noble Plant, conceded that Mr. Carter’s duties included all aspects of health, safety, and MSHA compliance issues. (See inter alia Tr. 239-241, Vol. II). I accept as true Mr. Carter’s contentions that throughout his tenure at Kino he continually voiced complaints of possible danger, safety, or health violations, ranging from inadequate clean-up to hazardous machine conditions to untrained personnel.

As outlined in the summary of Complainant’s pleadings, as documented in Mr. Carter’s written notes (GX P-1), testimony supra, and as persuasively argued in the Secretary’s post hearing brief – the total evidences establishes a prima facie showing that Mr. Carter had engaged in protected activity and/or had been perceived by Respondents to have engaged in protected activity.

B. Adverse Action Motivated by Protected Activity

            The record further establishes a prima facie case as to the second prong of Driessen: that the adverse action complained of was motivated in any part by the protected activity. Driessen 20 FMSHRC 324 (Apr. 1998).

            I find Mr. Carter’s description of his confrontation with Noble Plant on December 22, 2009 to be credible. I credit Mr. Carter’s testimony that he had over heard Noble Plant stating that Mr. Carter had “cut his own throat” for “pointing out every little thing” during the MSHA inspection. (See also Tr. 101, Vol. I).

            Given the Complainant’s credible testimony that he had been verbally dismissed by Noble Plant on December 22, 2009, and given the testimony of Inspector Berglof that he had overheard Noble Plant reprimanding Mr. Carter on December 22, 2009 – “you didn’t have to call MSHA” (Tr. 141, Vol. I) – there is believable direct evidence that Complainant’s December 2009 discharge was motivated by his protected activity.

C. Circumstantial Evidence

            Even assuming arguendo the direct evidence above cited is deemed insufficient to establish discriminatory motivation, there is abundant circumstantial evidence establishing such. I essentially concur with the arguments and supporting case law advanced by the Secretary in her post-hearing brief that there is sufficient circumstantial evidence to establish that Mr. Carter’s termination was motivated by Mr. Carter’s protected activity and/or Noble Plant’s suspicion or belief that Mr. Carter had engaged in protected activity.

Circumstantial evidence must be relied upon in cases involving 105(c) complaints because “[d]irect evidence of discriminatory motivation is not often encountered; more typically, the only available evidence is indirect.” Chacon, 3 FMSHRC at 2510. The Commission has enumerated some of the circumstantial indica of discriminatory motivation: 1) knowledge of the protected activity; 2) hostility or animus toward protected activity; and 3) coincidence in time between the protected activity and the adverse action. Sec. of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999); Chacon, 3 FMSHRC at 2511.

The Commission has held that “an operator’s knowledge of the miner’s protected activity is probably the single most important aspect of a circumstantial case.” Baier, 21 FMSHRC at 957 (quoting Chacon, 3 FMSHRC at 2510). The Commission has also held that “discrimination based upon a suspicion or belief that a miner has engaged in protected activity, even though, in fact, he has not, is proscribed by section 105(c)(1).” Elias Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1480 (Aug. 1992).

Noble Plant suspected or believed that Mr. Carter had filed a complaint with MSHA, and further believed that such complaint was the cause of the December 22, 2009 inspection. Mr. Plant’s rebuke of Mr. Carter, “you didn’t have to call MSHA,” demonstrates that Mr. Plant suspected or believed that Mr. Carter engaged in a protected activity and clearly expressed a hostility or animus toward that protected activity. (Tr. 141, Vol. I).

Further, the proximity in time between Mr. Carter’s protected activity and termination establishes a causal connection. Courts have held that a short proximity of time between the protected activity and the adverse action can be evidence of discriminatory motivation. See Donovan v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984) (termination two weeks after protected activity was “itself evidence of an illicit motive”). The Commission has stated that there are not any “hard and fast criteria in determining coincidence in time between protected activity and subsequent adverse action when assessing an illegal motive.” Secretary of Labor on behalf of James Hyles v. All American Asphalt, 21 FMSHRC 34, 47 (Jan. 1999) (citation and internal quotation marks omitted). Nevertheless, the Commission found temporal propinquity where about a month passed between MSHA’s issuance of a penalty and the operator’s denial to recall from temporary layoff the four complaints who had alerted MSHA of the violations which induced the penalty. Id. at 47. The Commission focused on the proximity between the issuance of the penalty and the adverse action, even though the four complaints’ actual protected activity of alerting MSHA occurred approximately sixteen months before the adverse action, because the Commission found that the issuance of the penalty was the “straw that broke the camel’s back.” Id.; See also Pamela Bridge Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361 (2000) (four months between safety complaints and termination was sufficient to establish proximity).

In the instant case, Noble Plant’s termination of Mr. Carter on December 22, 2009, was in extreme temporal proximity to Mr. Carter’s perceived protected activity. Mr. Plant believed that Mr. Carter had complained to MSHA about Kino Aggregate’s safety practices; Mr. Carter suffered the adverse action only a few hours after the beginning of the MSHA inspection. This creates a strong inference of discrimination. The MSHA inspection on December 22, 2009, which produced numerous citations and orders issued to Kino Aggregates, was the “straw that broke the camel’s back,” Mr. Carter having lodged multiple complaints to Mr. Plant over a variety of safety issues over his two-and-one-half-year employment by Kino Aggregates. The December 22, 2009 inspection forced Mr. Plant to resolve the safety and health issues that Mr. Carter had been complaining about for months. The close temporal proximity establishes that it was not simply by chance that Mr. Carter was fired mid-inspection. Rather, Respondents’ belief or suspicion that Mr. Carter’s engaged in protected activity directly caused his termination. Therefore, I find a prima facie case of discrimination under § 105(c) has been established.

Respondents’ defenses are unsupported by the record and are contradictory, inconsistent, and pretextual in nature.

Respondents inter alia contend that no discrimination claim may be made because no adverse action had actually ever occurred. The Complainant voluntarily withdrew from employment in December 2009, and was never, in fact, fired by Respondent. Respondent’s contention necessarily rests upon the credibility of witnesses who appeared at hearing and the weight this Court chooses to give to such. It is black letter law that the Administrative Law Judge, as trier-of-fact, must assess the credibility of all witnesses and determine the weight their testimony deserves.

            At hearing, Mr. Carter credibly testified that given, inter alia, his strained finances, he would never have voluntarily quit his employment at Kino Aggregates. (Tr. 118, Vol. I). Evidence presented regarding Mr. Carter’s spotty and less remunerative employment after December 2009, is further supportive of Mr. Carter’s contentions. (Tr. 115-116, Vol. I). All of Respondent’s witnesses, including Noble Plant, acknowledged the vitally significant role Mr. Carter had played in the design, fabrication, and over all operation of Kino Aggregates.

            Respondents argue that Complainant “abandoned his job out of frustration” on December 16, 2009 (or thereafter), and that therefore he was not a “miner” as defined under 30 U.S.C. § 802(g) so as to be entitled to discrimination protections afforded by the Miner Act. (See Respondent’s post-hearing brief at pp. 16-17).

            I found the Complainant’s explanations regarding having taken sick leave due to respiratory problems on December 16, 2009, to be much more credible than the assertions of Respondents. (See also Doctor’s First Report of Occupational Injury or Illness at GX P-6 which further supports Complainant’s testimony).

            I further reject any conclusion that Mr. Carter had voluntarily quit on December 22, 2009. I find it incredible that such a valued employee as Mr. Carter could simply walk off the job one day without explanation – and Noble Plant, the mine operator, would not speak to or later contact Mr. Carter to ascertain why. (See also Tr. 287, Vol. II). The only credible explanation for Noble Plant’s failure to question Mr. Carter regarding his sudden departure was that Mr. Plant had, in fact, fired Mr. Carter on December 22, 2009, and thus, had no reason for further inquiry.

            I specifically find that Noble Plant verbally fired Mr. Carter on December 22, 2009, due to Complainant’s actual or perceived protected activities and further find that Mr. Carter had not voluntarily relinquished his employment on December 22, 2009.

            In addition to alleging that Mr. Carter had voluntarily quit his employment, Respondents also contend that Mr. Carter had not been asked to return to work after the winter lay-off due to his poor work performance.

            Although the Respondents deny that Complainant was actually discharged in December 2009, I find that the Respondents’ failure to recall Mr. Carter after winter lay-off due to his alleged past poor work performance, to have constituted a de facto discharge for protected work activity and was, therefore, a discriminatory adverse action.

            A mine operator may affirmatively defend against a prima facie case establishing that any adverse action was also motivated by unprotected activity, and that it would have taken the adverse action for the unprotected activity alone. Robinette, 3 FMSHRC at 8118, n. 20; See also Jim Walter Resources, 920 F.2d at 750, citing Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the Commission’s Pasula-Robinette test).

            I find the late raised claim of Mr. Carter’s discharge based upon poor work performance is both inconsistent with Respondents’ own witness testimony and blatantly pretextual in nature.

            As noted supra, Noble Plant himself, the only individual who had the power to discharge employees, denied that he had fired Mr. Carter in December 2009. (See inter alia Tr. 289-287, Vol. II). Noble Plant “definitely thought he (Carter) was a good employee” (Tr. 287, Vol. II), “could run the plant fairly” and had planned to bring (Carter) back during the off-season. (Tr. 252, Vol. II). Thus, Respondents’ affirmative defense is vitiated by Noble Plant’s own testimony.

            Over the Secretary’s strenuous objection, Respondents were permitted for the first time to raise business justification as an affirmative defense in this matter. (See TR. 160-163, Vol. I; see also Respondents’ earlier pleadings, including past answer(s) containing no specific allegation of poor work performance/discharge and Respondents’ bench memoranda contending that Complainant voluntarily quit his employment in December 2009).

            Though permitting the Respondents to raise the within poor work performance defense at hearing, after a careful review of the record, including Noble Plant’s denials of discharge and favorable descriptions of work performance, I am constrained to agree with the Secretary that such defense is pretextual.

            The Commission’s inquiry into an operator’s business justification is limited to whether the reasons are plausible, whether they actually motivated the operator’s actions, and whether they would have led the operator to act even if the miner had not engaged in protected activity. Likewise, the Commission may not impose its own business judgment as to an operator’s action. Pendley v. FMSHRC, 601 F.3d 417 (6th Cir. 2010).

            Whether Complainant was discharged in December 2009 for poor work performance or whether Complainant was not recalled after the winter lay-off, the record simply does not support a business justification defense for Respondents’ actions.

            Noble Plant’s equivocal testimony on point has already been cited. Respondents’ argument that Mr. Carter would have been laid off in 2009 due to the usual pre-planned winter lay-off (Tr. 253, Vol. II), is undermined by Noble Plant’s testimony that he had planned to bring Mr. Carter back during the off-season. (Tr. 252, Vol. II).

            I specifically find that Mr. Carter’s unsuccessful attempts to repair a crushing machine in the summer of 2009 do not constitute a plausible business reason for Mr. Carter’s discharge in December 2009, or Respondents’ decision to not recall Mr. Carter over half-a-year later. In fact, such repair attempts lead me to conclude that Mr. Carter was a multi-skilled employee who reasonably attempted complex repairs in-house to avoid unnecessary expenses for Respondents.  Further, none of Respondents’ other witnesses, Adam Plant, Melissa Potts, or James Potts, offered any compelling testimony regarding alleged poor work performance.

            Respondents argue that Adam Plant’s testimony should be given the “most weight.” (See Respondents’ post hearing brief at p. 23). In assessing witness credibility and the weight to be accorded testimony, the Administrative Law Judge must consider any possible bias or underlying interest in the outcome which might motivate a witness not to tell the whole truth. Like all the witnesses presented by Respondents, Adam Plant had a family relationship to Noble Plant and worked for the family business. Adam, in fact, replaced Mr. Carter as Kino Aggregates’ new Plant Manager. As grandson of Respondent and employee/replacement manager of Respondents’ Dantoni Mine, Adam Plant had an underlying familial bias and economic interest in the outcome of the case. Thus, Adam Plant is less than a wholly disinterested witness and I find he is less than fully credible.

            Ultimately, the undersigned is required to resolve directly opposing testimony as to a critical fact question: did Mr. Carter have a confrontation with Noble Plant on December 22, 2009 at Mr. Plant’s pick-up truck during which Mr. Plant fired Mr. Carter?

            Noble Plant denied that any conversation had taken place and Adam Plant denied ever witnessing such. Yet Inspector Berglof – who I found to be the most disinterested witness – testified, under oath, that he had in fact seen and heard Noble Plant castigating Mr. Carter for having called MSHA. (See Tr. 104-141, Vol. I). Inspector Berglof’s testimony is credible and has essentially corroborated Mr. Carter’s testimony.

            The Respondent’s business justification defense(s) do appear “flimsy” and “unsupported,” suggesting that Respondents “seized upon a pretext to mask” their discriminatory motivation. NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1034 (10th Cir. 2003) (quoting NLRB v. Dillon Stores, Division of Dillon Cos., Inc., 643 F.2d 687, 693 (10th Cir. 1981)). See Johnson v. Paradise Valley Unified School District, 251 F.3d 1222, 1228 (9th Cir. 2001) (“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134 (2000), cert. denied, 534 U.S. 1055 (2001)). The Commission has similarly rejected pretextual explanations which the operator “seized upon” as an excuse to carry out a discriminatory design. Secretary of Labor on behalf of Robert Ribel v. Eastern Associated Coal Corp., 7 FMSHRC 2015, 2021 (Dec. 1985).

            The record is replete with explanations and/or non-explanations of Respondents’ witnesses that undermine their ultimate credibility, contradicting common sense, logic, and life experience. A critical employee suddenly walks off the work premises, never to return, but Noble Plant never enquires why. Respondents allege Complainant’s voluntary withdrawal and/or discharge due to poor work performance but do not report such, as required, to the state of California employment department. (See also GX P-7). Moreover, if Allen Reiss had in fact been provided MSHA training by Noble Plant prior to Mr. Carter’s discharge in December 2009, why were Respondents unable to produce supporting documents during Supervisory Investigator Diane Watson’s visit to Dantoni Mine in February 2010? (See also Watson testimony at Tr. 290-294, Vol. II; Secretary’s post-hearing arguments regarding Respondents’ possible fabrication of documents).

IV. Conclusion

I find that Respondents have failed to establish any affirmative defense to Petitioner/Complainant’s discrimination claims. I further conclude that Petitioner’s and Complainant’s claims of discrimination under § 105(c) have met the requisite proof to be granted.

A. Damages

            Pursuant to the statutory relief provided at 30 C.F.R. § 815(c), Complainant is entitled to “rehiring or reinstatement” in his former position of plant operator at Respondents’ Dantoni Plant.

B. Duty to Mitigate

            The Mine Act provides that a miner who has been discharged is required to mitigate his damages by making reasonable efforts to find employment. Sec. of Labor v. Gabel Stone Co., 23 FMSHRC 1222 (2001), aff’d Gabel Stone Co. v. FMSHRC, 307 F.3d 691 (8th Cir. 2002). A discharged worker’s efforts at reemployment however, are not to be judged by the “highest standard of diligence.” NLRB v. Arduini Mfg. Corp., 394 F.2d 420 (1st Cir. 1968). Moreover, a discriminatee’s alleged failure to mitigate damages is an affirmative defense. James Keys v. Reintjes of the South, Inc., 21 FMSHRC 1127 (Oct. 1999). See NLRB v. Mooney Aircraft, Inc., 366 F.2d 809 (5th Cir. 1966) (Failure to mitigate damages by refusal to search for alternative work or by refusal to accept substantially equivalent employment is an affirmative defense.)

            At hearing, the Complainant credibly described his good faith efforts to find new employment. (Tr. 108-115, Vol. I). In its cross-examination, Respondents failed to affirmatively prove that Complainant was somehow derelict in fulfilling his duty to mitigate damages.

C. Pain, Suffering, and Emotional Distress

            In prior pleadings Petitioner has requested damages for pain, suffering, and emotional distress associated with Respondents’ unlawful termination. I find no documentary or testimonial evidence to support said damage claims and deny such.

D. Other Damages

            Section 105(c)(3) provides that when a discrimination complainant’s claim is granted the Administrative Law Judge may grant “such relief as it deems appropriate.”

            Given the within findings that Complainant did not voluntarily quit employment and was in fact, discharged for unlawful discriminatory reasons, Respondents are ordered to expunge and/or purge any negative personnel file references regarding Complainant’s alleged resignation and/or discrimination complaint. Respondents are further ordered to post a notice at Dantoni Mine that they will not violate § 105(c)(1) of the Act.

E. Back Pay, Interest, and the Secretary’s Proposed Civil Penalties

            Pursuant to § 105(c), this Court finds that as further relief the Complainant is entitled to “back pay and interest” since December 22, 2009. I further find that Respondents are entitled to deduct Complainant’s interim net wages received from other employment since December 22, 2009 from the gross pay that Complainant would have otherwise received from Respondents. The Respondents, however, are not entitled to a deduction for any unemployment compensation benefits received by Complainant.

            The parties have not agreed as to the actual gross amount that Complainant would have received from Respondents since December 22, 2009. (See different amounts suggested by the Secretary and Respondents in their post-hearing briefs). While an Administrative Law Judge has broad discretion in fashioning an appropriate remedy so as to make the discriminatee “whole,” I find an insufficient record as to the issue of Complainant’s outstanding gross pay since December 22, 2009. I therefore retain jurisdiction of this matter for purposes of establishing the amount of monetary damages, including back-pay and interest, owed to Complainant.

            If the parties cannot reach an agreement as to such, I shall hold further proceedings, including evidentiary hearing, if necessary, to determine an appropriate remedial amount. Pending its disposition of the within monetary damages claim(s), I shall also withhold ruling on the Secretary’s proposed civil penalty of $15,000.

ORDER

            It is hereby ordered that Petitioner’s and Complainant’s discrimination claims under Sections 105(c)(1) and 105(c)(2) are granted. 

             It is further ordered that Complainant be reinstated to his former position of plant operator at Respondents’ Dantoni Mine.

            It is ordered that Respondents expunge from their personnel records any negative references to Complainant’s alleged resignation in December 2009, and further purge their personnel records of any negative references to Complainant’s within discrimination action.

            It is ordered that Respondents post a notice at Dantoni Mine that they will not violate § 105(c)(1) of the Mine Act.

            It is further ordered that Complainant’s claims for pain, suffering, and emotional distress damages be denied.

            I find that Complainant has met his duty to mitigate damages.

            I further find that the record is insufficient as to the gross pay that Complainant would have earned from Respondents since his discriminatory discharge on December 22, 2009. I therefore maintain jurisdiction of this matter for purposes of establishing the actual amount of monetary damages, including back pay and interest, for which Respondents are now liable.

            With reference to such, Respondents are entitled to deduct the actual net interim earnings received by Complainant from other employers since December 22, 2009. Respondents, however, are not found to be entitled to any deductions for unemployment compensation benefits received by Complainant since December 22, 2009.

            The parties are ordered within thirty days of the date of this order to advise the undersigned whether they have agreed as to specific monetary damages owed to Complainant. If the parties cannot agree, an evidentiary hearing regarding such shall be scheduled.

            I shall further withhold ruling on the Secretary’s proposed civil penalty of $15,000 pending disposition of the within monetary relief claim.

                                                            /s/ John Lewis

                                                            John Lewis

                                                            Administrative Law Judge

Distribution: (Certified Mail)

Isabella M. Finneman, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7^th Street, Suite 3-700, San Francisco, CA 94103

Kurt D. Hendrickson, Esq., Knox Lemmon Anapolsky & Schrimp LLP, 300 Capitol Mall, Suite 1125, Sacramento, CA 95814