FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Temporary Reinstatement is a preliminary proceeding, and narrow in scope. The plain language of the Act states that “if the Secretary finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint.” 30 U.S.C. § 815(c)(2). The judge must determine whether the complaint of the miner “is supported substantial evidence and is consistent with applicable law.”^{^[3]} Sec=y of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). 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. 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. “Congress intended that the benefit of the doubt should be with the employee, rather than the employer, because the employer stands to suffer a lesser loss in the event of an erroneous decision since he retains the services of the employee until a final decision on the merits is rendered.” Sec’y of Labor, on behalf of Curtis Stahl v. A&K Earth Movers Inc., 22 FMSHRC 233, 237 (ALJ) (Feb. 2000).

In order to establish a prima facie case of discrimination in a full discrimination proceeding 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, Houston 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, a similar analytical framework is considered 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 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 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 evidence

On February 14, 2013, Houston filed a Discrimination Complaint, which included a brief Discrimination Report. In his Complaint, he reported that he was terminated from his job as a face support worker at the Highland No. 9 Mine on February 9, 2013. Exhibit B, Application for Temporary Reinstatement.

Following the filing of the complaint, the Secretary performed an investigation and determined that the Complaint was not frivolously filed. On April 10, 2013, the Secretary filed an Application for Temporary Reinstatement of Brad Houston.

Submitted with the Application for Temporary reinstatement was the April 3, 2013 Declaration of Special Investigator Freddie Fugate. The Declaration, in pertinent part, is as follows:

I am a Special Investigator employed by the Mine Safety and Health Administration, United States Department of Labor, and I am assigned to the District 7 Office in Barbourville, Kentucky. During the period of this investigation however, I was on detail at the District 10 Office in Madisonville, Kentucky.
As part of my responsibilities, I investigate claims of discrimination filed under Section 105(c) of the Mine Act. In this capacity, I have reviewed and gathered information as part of an ongoing investigation arising from a complaint filed by Brad Houston. My findings as a result of this investigation disclosed the following:

Brad Houston was employed by Highland Mining Company, LLC as a face support worker building brattices for the No.9 Mine sometime in September 2010.
In February 2013, Houston was working first shift on the Number 5 Unit. The roadway to the section was known to be muddy, filled with potholes, and was frequently the cause for delays in getting to the mine surface. At the end of his shift on February 6, 2013, Houston and 11 other crew members loaded onto a mantrip and headed to the surface. Casey Kennedy in a hurry to get to the surface, began to drive the mantrip recklessly and at a fast pace over the bumpy mine road. At some point during the four mile bumpy drive to the mine surface, Houston believes that he hit his head causing him to lose his hard hat and cap light. He stated that he was dazed and did not realize that he had lost the items until someone told him. Kennedy stopped the mantrip and Houston got off and found his hard hat in the roadway. He, however, was unable to find his cap light. As Houston headed back toward the mantrip, Kennedy took off and left him behind in the dark roadway without a light.
Eventually, Houston located a mine phone that was several breaks away and called the mine foreman's office. He told mine foreman Mickey Morris that he had hit his head due to the mantrip being driven recklessly and that he had been left underground without a cap light. Morris told Houston that a second mantrip should pass by and that he should ride to the surface on that one.
About 20 minutes later the second mantrip drove by and picked Houston up. Houston retold the miners on the second mantrip what happened to him and how he ended up alone in the dark roadway. Jeremy Hendrickson, a production supervisor, was one of the miners on the second mantrip.
Once on the surface, Houston reported the incident to Morris who was still in the mine foreman's office. He told Morris that he was left alone underground without a cap light, that he thought he might have suffered an injury as a result of hitting his head, and that the mantrip was being driven in a manner that could hurt someone. Morris offered Houston a new cap light but made no comments regarding Houston's other statements.
On February 8, 2013, Houston called the mine office complaining that his head hurt from the day before. He was told to bring in a doctors excuse when he returned to work. Houston was also scheduled to work Saturday, February 9, 2013, but he also called in on that day. On the same day union representative Larry Baker called Houston at home. Baker told Houston that he should make sure that he brought in a note from the doctor because the company was putting him on a "5 day" with the intent to terminate.
On Monday, February 11, 2013, Houston reported to work and gave the doctor's excuse to Faye Henshaw, the company secretary and timekeeper. Houston stated that he then spoke with Terry Miller, President of the UMWA. Miller told him that the union would attempt to put him on a program to save his job. A company official told Houston to come back to the mine the next day at 10:00 a.m.
Houston returned to the mine the next day at 10:00 a.m. and by 11:00 a.m. he was terminated. Mine Superintendent Ezra French told Houston to sign a "quit sheet." French told him that if he signed the "quit sheet" he would not give him a bad reference; otherwise, Houston would not be able to get a job with any Peabody or Arch mine in Kentucky. Houston reluctantly signed the "quit sheet."
Houston believes that he was discharged because he notified mine foreman Mickey Morris and production foreman Jeremy Hendrickson that he was left in the mine without a cap light and because he complained about the mantrip being driven in a reckless manner.

Based upon my investigation of this matter, Houston engaged in a protected activity when he reported his concerns about the recklessly driven mantrip and of being left underground without a cap light. I conclude that his complaint was not frivolously brought.

Exhibit A, Application for Temporary Reinstatement.

Brad Houston began working in the mining industry in 2008, and at Highland Mining on September 7, 2010. Tr. 11-12. He began at Highland Mining as a roof bolter, but has since worked a variety of other jobs at the mine. Tr. 12-13. Houston worked full time on rotating 10-hour shifts, meaning that every two weeks Houston would rotate into a different shift. Tr. 13-14.

On Wednesday, February 6, 2013, Houston was working the morning shift from 7 am to 5 pm. Tr. 15. He started the day working on the unit and then got pulled off to do belt work. Tr. 14-15. After performing belt work, Houston and his co-workers headed back to the unit and started running coal. Tr. 15. Toward the end of their shift, when they were done with their work, everyone boarded the mantrip to leave. Tr. 15-16. The unit they were working on was approximately 5 miles from the slope, and usually takes approximately 40-45 minutes to travel by mantrip. Tr. 24.

The mantrip has rubber tires, fits 14 miners, has a canopy over it, and has no doors on its sides. Tr. 24-25, 48-49. One of Houston’s coworkers, Casey Kennedy, was driving the mantrip, and Houston was sitting in the far back because the mantrip was full. Tr. 16, 50. Kennedy was driving erratically, causing at least one person to lose his hard hat. Tr. 16. Houston said that it may have been Kennedy who lost his hat, because he remembers him stopping and getting out of the mantrip to retrieve a hard hat. Tr. 58-59. People were yelling for Kennedy to slow down and stop. Tr. 17. The mantrip and belt were not making so much noise that the driver would have been unable to hear passengers yelling to him. Tr. 61-62.

Houston was getting jarred around in the back and he hit his head on the canopy top approximately a fourth of the way into the trip to the slope. Tr. 17, 24, 25. This caused Houston to get knocked out for one to several minutes. Tr. 17, 28. Houston’s head hitting the canopy also caused him to lose his hard hat. Tr. 17. Houston and others yelled for Kennedy to stop the mantrip so that Houston could find his hard hat. Tr. 17-18. Houston rolled out of the mantrip and, with the help of Kennedy shining a light, he looked for his hard hat 6-8 crosscuts behind him. Tr. 18, 62. When Houston finally found his hard hat, there was no cap light on it. Tr. 18. As he began looking for his cap light, Houston saw the mantrip leaving him. Tr. 18. He yelled for the mantrip to wait, but it still left without him. Tr. 19.

Houston was left alone and in the dark, with no cap light. Tr. 20. He could see light from a header, so he walked 6-8 crosscuts to the header and found a phone. Tr. 19-20. He called up to the mine surface and reached Mickey Morris, the mine superintendent.^{^[4]} Tr. 21. Houston introduced himself and told Morris that he had hit his head, lost his hard hat, and was down in the mine without a cap light. Tr. 21. Morris told Houston to wait for the next mantrip, which picked Houston up after approximately a half an hour. Tr. 22. This mantrip was driven by a roof bolter named Rick Bishop, and a face boss named Jeremy Hendrickson was on board. Tr. 23. Houston told Bishop and Hendrickson about what happened with the previous mantrip. Tr. 23.

After the second mantrip arrived at the bottom, Houston went back to the first mantrip to get his lunch bucket and tool bag. Tr. 25. While looking around the first mantrip, Houston found his cap light on the floorboard. Tr. 25. Houston then took the hoist up to the surface and went to the locker room to clock out. Tr. 26-27. Miners who were on the first mantrip told Houston that what Kennedy did to him was “wrong” and that he should “get that stopped.” Tr. 27. Houston responded, “I’m getting ready to go in here and let them know what happened.” Tr. 27.

Houston then went to Morris, Hendrickson, and a face boss named Steve Buckhorn. Tr. 28. Houston told Morris again, with the others listening, about Kennedy’s erratic driving, how he hit his head and lost his hard hat, and how he was knocked out. Tr. 28, 29. When Houston told them that he had lost his cap light, Morris responded that he would get him a new cap light. Tr. 28. Houston described himself as being in shock. Tr. 65. None of the supervisors present responded in any other way to Houston’s complaint of reckless driving and injury. Tr. 28-29.

On a previous occasion, Houston complained to his face boss about Kennedy for a variety of safety incidents. Tr. 81-82. Houston testified:

I have reported [Kennedy], you know, ramming the back of my ram car when I’m driving it, you know, underground with – you know, hauling coal and – and, you know, you pulling up under the miner and you got a miner man out here, you know. And he’s wanting to come and, whatever, play derby with the cars. I have reported unsafe acts.

I have reported to Brad Peyton, my face boss. I reported unsafe acts that his guy’s done, and they don’t do nothing about it. I mean, they don’t say nothing to him.

Tr. 82.

Houston then went back to the locker room, put his belongings away, showered, and left for the day. Tr. 29. He had no gashes on his head, but had a bump that formed on the back of his head. Tr. 29. He was also experiencing popping in his ear on the side where his head was hit, and a great deal of soreness and pain in his shoulders, back, and hips. Tr. 29-30.

When Houston awoke the next day, he was woozy, his head was in a great deal of pain, and his body was stiff. Tr. 30. He described sitting on the side of his bed, “just trying to get myself together.” Tr. 30. He felt that something was wrong, so he called into the call-in line at work and said that he was going to the doctor. Tr. 30-31. He tried calling again at 8 am, when people from the safety department would be arriving at work, but he could not reach anyone. Tr. 31. Houston testified that he kept trying, and on the third or fourth time he reached someone from human resources, likely the human resources manager, Tonya McCullough.^{^[5]} Tr. 31, 106-107. Houston told her what happened, and she told him to go to the doctor. Tr. 31-32.

Houston went to the MOMs clinic in Henderson and saw a doctor. Tr. 32. The doctor examined Houston and prescribed him some medication, which Houston could not recall. Tr. 33, 57. Houston went home and called Highland again. Tr. 33. He couldn’t reach anyone, so he left a message on the voicemail of mine superintendent Aaron Farmer. Tr. 33.

On Saturday, February 9, Houston received a call from a union representative named Larry Baker. Tr. 33. Baker asked Houston if he knew that the company had him on a 5-day suspension with intent to discharge. Tr. 33. Houston responded that he was not aware of that, and Baker told Houston to remember to bring the doctor’s excuse on Monday. Tr. 34.

When Houston arrived for work on Monday morning, miners began approaching him telling him that they had heard that he was fired. Tr. 34. The union president, Aaron Miller, took Houston to go see Farmer. Tr. 34-35. Houston turned the doctor’s excuse in to the secretary while waiting to speak with Farmer. Tr. 36. After waiting for a while, Houston entered Farmer’s office, to speak with Farmer, Baker, and Miller. Tr. 35.

According to human resource manager, Tonya McCullough, the decision makers for discharge are her, Ezra French from human resources, and Farmer. Tr. 102-103. Farmer told Houston that because of call-in issues he was putting Houston on a 5-day suspension with intent to discharge. Tr. 36, 38. The company’s policy on missing work is that they prefer 24 hours notice, but in cases of emergency miners may call in one hour prior to the start of their shift. Tr. 101. In the previous year, Houston was issued several prior notices for call-in policy violations; however, at least one of these notices may never have been received by Houston after he moved and the company continued mailing to his old address. Tr. 78-80, 101-103. McCullough testified that the reason for the discharge was Houston’s alleged violation of the call-in procedure on January 26, 2013. Tr. 103.

Miller told Houston to return Tuesday at 10:00 am to talk about the matter further. Tr. 37. Houston returned on Tuesday morning and had a meeting with union representatives, including Miller, Baker, and Spike,^{^[6]} as well as four representatives of the company, including superintendent Farmer and French. Tr. 38. They provided Houston the opportunity to discuss his missing work or calling in late. Tr. 39. Houston did not tell French at that moment that he was being fired because he made a safety complaint because mine management already knew of his complaints. Tr. 86-87.

French then told Houston that Highland Mining was firing him and made him sign a “quit sheet.” Tr. 40. Houston did not want to resign, but he was told that a good recommendation from the company for future employment was contingent on his signing the quit sheet. Tr. 41-42. There was no grievance filed by the union on Houston’s behalf because Houston elected to resign. Tr. 112, 118. Houston and Miller tried to discuss the matter further with French, but French would not reconsider the matter. Tr. 42-43. Employees 1 & 2 were also discharged on February 7, 2013 for alleged violations of the call-in policy.^{^[7]}

Houston went to the Community Methodist Hospital Emergency Room a few days after he was discharged. Tr. 56. An MRI was performed, and Houston said that no internal bumps, bruises, or contusions were detected.^{^[8]} Tr. 55-56.

Findings and conclusions

Protected activity

Houston engaged in at least two protected activities, either of which alone would be sufficient to prove the first element of the test for temporary reinstatement. Houston’s first protected activity was his several complaints concerning the reckless driving, his injury, and his being left without a light underground in a roadway. Houston first told the mine superintendent Mickey Morris about the incident and his injury when he phoned to the surface. Tr. 21. Houston then complained to a face boss on the trip back on the second mantrip. Tr. 23. Houston then went to see Morris in his office. Tr. 28. Houston complained to Morris, with face boss Buckhorn listening, about Kennedy’s erratic driving, his head injury, and his being left in the dark underground. Tr. 28. The next day, when Houston was experiencing wooziness, as well as head, shoulder, hip, and back pain from his injury, he told McCullough in human resources about his injury. Tr. 31, 106-107. Later that day, Houston left a message for mine superintendent Aaron Farmer, where he also stated that he would not be at work because of the injuries sustained the previous day. Tr. 33.

The Respondent argues that the erratic driving was a “one-time event” and that Houston has not shown that it was a violation of a specific provision of the Mine Act or the Regulations. Tr. 126. This argument misunderstands the broad scope of activities protected under §105(c). The legislative history explains that “The Committee intends that the scope of the protected activities be broadly interpreted by the Secretary.” S. Rep. No. 95-181, at 35. Similarly, it states:

The listing of protected rights contained in section [105(c)(1)] is intended to be illustrative and not exclusive. The wording of section [105(c)] is broader than the counterpart language in section 110 of the Coal Act and the Committee intends section [105(c)] to be construed expansively to assure that miners will not be inhibited in any way in exercising any rights afforded by the legislation. This section is intended to give miners, their representatives, and applicants, the right to refuse work in conditions they believe to be unsafe or unhealthful.

Id. at 35-36. The legislative history is clear that complaints concerning health and safety matters are protected by Section 105(c). The Mine Act and Regulations cannot possibly comprehend every unsafe and unhealthful activity in the mine, and it is not incumbent upon the miner to cite to a specific health or safety regulation in making a complaint. Such a “hypertechnical and purpose-defeating interpretation” would limit the ability of miners to make legitimate health and safety complaints. Donovan on Behalf of Anderson v. Stafford Const. Co., 732 F.2d 954, 959 (D.C. Cir. 1984).

Houston’s second protected activity was his calling off work on February 7, 2013, the day after he was injured.^{^[9]} Houston’s head injury caused him to be knocked out for one to several minutes. Tr. 17, 28. On that day he experienced popping in his ear on the side where he hit his head, and he felt a great deal of soreness and pain in his shoulder, back, and hips. Tr. 29-30. He also developed a visible bump on the back of his head. Tr. 29. When Houston awoke the next morning, he was woozy, his head was in a great deal of pain, and his body was stiff. Tr. 30. Houston had to sit on the side of his bed “just trying to get myself together.” Tr. 30. Houston felt there was something wrong and needed to go to the doctor. Tr. 30-31. Therefore, Houston called into work and told them that he would not be coming to work that day. Tr. 30-31.

Houston’s injury, as well as the symptoms he described, made it unsafe for him to go to the mine on February 7. His calling in and stating that he would not be at work was essentially a refusal to work in unsafe conditions. “Section 105(c) confers on a miner the right to refuse to work if he sincerely believes his working conditions expose him to an identifiable danger. Thus, the right to refuse work is personal to the miner who fears a perceived danger.” Mountain Top Trucking Co., Inc., 1997 WL 34994, *23 (ALJ) (Jan. 1997). In James Eldridge v. Sunfire Coal Company, 5 FMSHRC 408, 464 (March 1983), Judge Koutras held that a miner’s work refusal was protected when he refused to work beyond his normal shift because of his communicated concerns that he was “too tired and exhausted” to continue working on a pillar section until the entire pillar was extracted. 5 FMSHRC 408, 464 (ALJ) (March 1983). Similarly, here Houston’s refusal to work with a head injury, pain, wooziness, and instability constituted protected activity.

Nexus between the protected activity and the alleged discrimination

Having concluded that Houston engaged in protected activity, the examination now turns to whether that activity has a connection, or nexus to the subsequent adverse action, namely the February 7, 2013 suspension with intent to discharge followed by the intended discharge.^{^[10]}

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. It is not necessary, however, to establish all four indications of discriminatory intent. For example, where there is knowledge of the protected activity and coincidence in time between the protected activity and the adverse action, a causal connection is supported. Sec’y of Labor, on behalf of Yero Pack v. Cimbar Performance Minerals, 2012 WL 7659706, *4 (ALJ) (Dec. 2012).

Knowledge of the protected activity

Houston’s supervisors had knowledge of his complaints and concerns about the February 6 incident, as well as his refusal to attend work on February 7. Regarding the February 6 incident, the record reveals that Houston complained to every coworker and supervisor that he could find. Even though the incident occurred at the end of his shift, Houston complained to a coworker and face boss on the second mantrip, his coworkers in the shower room, a face boss and mine superintendent, an HR manager, and another mine superintendent. 23, 27, 28-29, 31, 33. Considering the short span of time between the injury caused by the erratic and unsafe driving and Houston’s termination, he directly complained to a large group of people. As a result, mine personnel and management had ample knowledge of the incident.

Houston’s supervisors also had knowledge of his refusal to attend work on February 7. Houston called the company call-in line several times to tell them of his refusal to come into work. Tr. 30-31. He left a message on the call-in line, spoke with McCullough in human resources, and left a message on the machine of superintendent Farmer. Tr. 31, 33. Houston’s coworkers even knew about the reason he called off. This is shown by the call Houston received on Saturday from a union representative telling him that he should bring a doctor’s note on Monday. Tr. 34-35. Accordingly, I find sufficient evidence that the Respondent had knowledge of Houston’s protected activities.

Hostility or animus towards the protected activity

“Hostility towards protected activity—sometimes referred to as ‘animus’—is another circumstantial factor pointing to discriminatory motivation. The more such animus is specifically directed towards the alleged discriminatee's protected activity, the more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 2 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). Animus can take the form of action or inaction. In Sec’y of Labor on behalf of Turner v. National Cement Company of California, the Commission found animus where the operator was not responsive to the miner’s safety concerns. 33 FMSHRC 1059, 1069 (May 2011). Houston had previously complained to management about his safety concerns regarding Kennedy’s handling of equipment and treatment of him underground. Tr. 81-82. However, nothing was ever said to Kennedy. Tr. 82. When Houston suffered a head injury due to Kennedy’s reckless driving, and was left underground in the dark, Houston relayed the incident to his fellow coworkers, to Hendrickson (a face boss), twice to Morris (a mine superintendent), to McCullough (the HR manager), and to Farmer (a mine superintendent). Tr. 21, 23, 27, 28-29, 31, 33, 106-107. The only responses he received were from McCullough, who told him to see a doctor, and Morris who first told him to wait for a second mantrip and then responded that he would provide Houston with a replacement cap light. Tr. 22, 28, 31-32. There is nothing in the record to suggest that any actions were taken on Houston’s concerns and complaints or that any corrective measures were taken. I find that such silences in the face of serious safety complaints and injury constitute animus toward a miner’s protected activity.

Circumstantial evidence of animus toward the protected activities can also be found in the Respondent’s rush to check Houston’s personnel record for dischargeable offenses after his complaint. Houston complained of the unsafe driving and his injury on February 6, and he refused to work on February 7 because of this injury. On February 7, following these protected activities, the company suspended Houston with the intent of discharging him for an alleged absence almost two weeks prior. Tr. 103. Considering the record as a whole, I find that Respondent had hostility or animus towards Houston’s protected activity.

Coincidence in time between the protected activity and the adverse action

With regards to coincidence in time between the protected activity and the adverse action, 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). 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).

In the instant case, Houston’s protected activities occurred on February 6 and 7. He was given a 5-day suspension with intent to discharge on February 7, and was discharged and essentially forced to sign a “quit sheet” on February 12. Tr. 36, 38, 40. I find that this short coincidence in time between the protected activity and the adverse action is circumstantial evidence of a nexus.

Disparate Treatment

“Typical forms of disparate treatment are encountered where employees guilty of the same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2512 (Nov. 1981). In the instant case, the Respondent submitted evidence of Employees 1 and 2 who were allegedly discharged for violating the call-in policy. However the circumstances of these other discharges, or whether the call-in policy was uniformly applied by the Respondent, remain unknown. There is no evidence on record of any other employees punished less severely for the same or similar alleged misconduct. This issue has not been fully developed, hence there is no evidence of disparate treatment. However, the Commission has previously held that evidence of disparate treatment is not necessary to prove a prima facie claim of discrimination when the other indicia of discriminatory intent are present. Id. at 2510-2513.

Conclusion

The Secretary has carried his burden of showing that Houston’s complaint was not frivolously brought. At the hearing, Respondent repeatedly attempted to shift various responsibilities to Houston when it was mine management personnel, well aware of the incident that gave rise to the safety complaint, who took no action to ensure the injury was properly investigated, reported, and handled. For example, there is no evidence that mine management informed the safety department of the injury, which could result in the need for Part 50 reporting to MSHA. Rather, on this record, management engaged in a review of Houston’s personnel file, an action that presents circumstantial evidence of an intent to discharge him immediately after hearing of the results of the reckless driving incident. I find that temporary reinstatement of Houston is warranted.

ORDER

Based on the above findings, the Secretary=s Application for Temporary Reinstatement is granted. Accordingly, Highland Mining Company is ORDERED to provide immediate reinstatement to Brad Houston, 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. Based on the evidence in the record and the history of unsafe and uncorrected incidents that Houston has been exposed to at the mine, it may be wise for the parties to consider economic reinstatement.

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 Highland Mining Company did not violate Section 105(c) of the Act.

/s/ Kenneth R. Andrews

Kenneth R. Andrews

Administrative Law Judge

Distribution: (Certified Mail)

Schean Belton, Esq., Office of the Solicitor, US Department of Labor, 618 Church St., Suite 230, Nashville, TN 37219-2456

Jeffrey Phillips, Esq., Steptoe & Johnson, 2525 Harrodsburgh Rd, Lexington, KY 40504

Brad Houston, 48 Bell Street, Corydon, KY 42406

^{^[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]}Exhibits of Respondent were admitted, but found largely irrelevant to the proceeding. Four of the documents, photocopied from the personnel files of two other employees and released to the court without documented authorization, were placed under seal to prevent any further disclosure of private information. Respondent’s Exhibits I, J, K, and L.

^{^[3]} ASubstantial 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)).

^{^[4]} Houston was not certain if Morris was a mine superintendent or foreman. Tr. 21. Either position would place him as Houston’s supervisor, so his precise title does not affect the findings and conclusions herein.

^{^[5]}Tonya McCullough testified that she spoke with Houston in the afternoon. Tr. 106-107.

^{^[6]} The full name of Spike is not clear from the testimony. However, Houston testified that he was a union representative. Tr. 38.

^{^[7]}Two employees are referred to here as Employee 1 and Employee 2 because Respondent’s confidential documents from the employees’ personnel files are under seal. Tr. 109-110.

^{^[8]} Similar to Judge Gill’s finding in Sec’y of Labor on behalf of Kenneth R. Wilder v. Private Investigation and Counter Intelligence Services, Inc. and Bledsoe Coal Corp., 33 FMSHRC 1667, n. 5 (ALJ) (July 2011), I find the following is a list of ancillary facts broached at the hearing which may be relevant for a trial on the merits, but are beyond the scope of this limited temporary reinstatement hearing:

· Allegations of previous absenteeism or violations of the company call-in policy;

· Whether the union chose to grieve Houston’s discharge;

· Why Houston sat in the back of the mantrip;

· Whether he had his cap light on or off while riding on the mantrip;

· Whether Kennedy drove erratically during other trips on that day;

· The discharge of Employees 1 and 2.

^{^[9]} There is also a third protected activity in Houston’s prior complaints about Kennedy engaging in unsafe acts, such as ramming him with the ram car. Tr. 82. However, there is not enough in the record to indicate when these complaints occurred and what the results were.

^{^[10]} The Respondent argues that Houston resigned and therefore did not suffer an adverse employment action. Tr. 126. However, the record clearly shows that Houston was given a 5-day suspension with the intent to discharge on February 7, 2013. Tr. 36, 38. On February 12, 2013, McCullough gave Houston the option of being discharged or resigning. Tr. 108. Houston was given a pre-printed “quit sheet” and understood that he had the choice of being discharged and receiving a poor reference or resigning and receiving a positive reference. Tr. 40-42. Houston did not have the option of retaining his job, therefore this was an adverse employment action.