FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

Telephone No.: 202-434-9950

Telecopier No.: 202-434-9954

May 16, 2012

DECISION

AND

ORDER OF TEMPORARY REINSTATEMENT

Appearances:  Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois, for Complainant,

Daniel W. Wolff, Esq., Crowell & Moring, Washington, D.C., for Respondent.

Before:            Judge Zielinski

            This matter is before me on an Application for Temporary Reinstatement filed by the Secretary of Labor on behalf of Sean Tadlock pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). The application seeks an order requiring Respondent, Big Ridge, Incorporated, to reinstate Tadlock as an employee, pending completion of a formal investigation and final order on the complaint of discrimination he has filed with the Secretary’s Mine Safety and Health Administration (“MSHA”). A hearing on the application was held in Benton, Illinois, on May 10, 2012. Big Ridge filed a post-hearing brief. For the reasons set forth below, I grant the application and order Tadlock’s temporary reinstatement.

Findings of Fact and Conclusions of Law

            Big Ridge operates a large underground coal mine named the Willow Lake Portal, located in Saline County, Illinois. Tadlock began working as a miner for Big Ridge on March 22, 2010. Prior to that, he had worked at the Willow Lake mine for approximately 90 days, while he was employed by a contract labor provider. He performed a variety of jobs, including rock dusting and operating a ram car loading coal from a continuous miner and transporting it to a belt feeder. Tadlock worked the midnight shift, from 11:00 p.m. to 7:00 a.m.

            On February 16, 2012, Tadlock’s employment was terminated effective February 11, 2012. On March 13, 2012, Tadlock telephoned MSHA’s Vincennes District Office and spoke to Adron Wilson, a supervisory special investigator. He then provided a formal statement regarding his termination and, on March 14, 2012, filed a complaint of discrimination with MSHA alleging that his termination was the result of his refusing to work for an unsafe foreman. The complaint was investigated and found not to be frivolous. On April 19, 2012, the Secretary filed an Application for Temporary Reinstatement on Tadlock’s behalf. Big Ridge timely requested a hearing on the Application.

The Secretary’s Witnesses - Sean Tadlock

            Tadlock testified that on or about January 5, 2012, Larry Perry, the shift leader on Tadlock’s unit, criticized him for taking too long to change a battery in his ram car, when the delay was another miner’s fault. Tadlock replied, questioning why Perry was not doing required air and methane checks, and why he did not address Tadlock’s complaints about oil leaking into the operator’s compartment of his ram car. Tr. 20-23. There was approximately 3/4 of an inch of oil on the floor of the cab, which caused his feet to slip off the pedals, and posed a hazard when he attempted to enter or exit the car. Perry told him to do his own job and not worry about Perry’s. The issue of whether Perry was doing required methane and air checks had been called to Tadlock’s attention by another miner, who had remarked to the effect “when have you seen Perry doing air or methane checks?” Tr. 24.

            Tadlock did not work on Friday, January 6. A fellow miner called him while he was off and told him that Perry had been in the office talking about catching Tadlock sleeping in his ram car in the return air course, and that Tadlock was “off” Unit #1. Tr. 27-28. When he next reported for work, Keith Hawkins, the third-shift mine manager, told him that he was going to be working outby for a while. Tadlock said that he had heard that Perry had said he had caught him sleeping. Hawkins told him not to worry about it because he wouldn’t be going back to Unit #1. Tadlock then questioned whether the move had anything to do with his calling Perry an unsafe face boss. Tr. 28-29. Hawkins replied that he was reading too much into it, and that he was not being punished. Over the following week or two, Tadlock had several conversations with Hawkins about the move, during most of which the subject of his complaint to Perry came up. Tr. 31. Tadlock’s outby assignments included rock dusting and shoveling accumulations of coal that had fallen off conveyor belts. He stayed on the third shift, and did not lose any overtime hours. Tr. 29.

            On February 10, 2012, Tadlock was working outby with Andrew Atchison, a contract worker with limited experience. They were assigned to shovel coal from belt spillages in the North Main 2 and North Main 3 areas of the mine, and to repair a stopping in the North Main 4 area. Around 3:30 a.m. they decided to take their 30-minute lunch break. Tadlock wanted to warm his lunch up in a microwave oven and decided to travel to the area of Unit #4, which was approximately five miles from where they had been working. They drove up to the West Main road and proceeded down to where a new Unit #5 was being installed, next to Unit #4.

            Hawkins and Thomas Myers, the assistant mine manger, were in that area supervising the set-up of the new unit and the evacuation of a miner who had been injured on Unit #1. They observed Tadlock and Atchison approaching on their man-trip and instructed them to pull over and park so as to free the road up for the evacuation of the injured miner. Hawkins walked down to where they had stopped and asked them what they were doing in the area, and Tadlock replied that he was going to Unit #4 to heat up his lunch in a microwave oven. Hawkins told Tadlock that he needed him to take the man-trip up to Unit #1, and that he would have to help out that crew as best he could. Tadlock replied that he hoped Perry wasn’t working the unit, because he would not work for an unsafe face boss. Tr. 34-35. Hawkins told him that Perry was working, and that he should get his stuff and proceed to the working section. Tadlock refused to go to the unit, and Hawkins took him out of the mine and told him to go home. Tr. 35-36.

            When he reported for work on Sunday night for Monday February 13, he was told that he had to see Robert Gossman, the human resources manager. The following morning, he returned to the mine and met with Gossman, who informed him that there was an issue with “points” that had to be dealt with before they got to the insubordination. Tr. 40. As reflected in its Policies and Procedures Manual, Big Ridge’s “Absentee Program” provided that if a miner had five or more “occurrences,” or unexcused absences, within a 12-month period, he would receive a verbal warning; at six occurrences a written warning was issued; and at seven occurrences he was subject to automatic discharge. Ex. R-2. Tadlock believed that he had accumulated only 6 and one-half occurrences, and was not subject to dismissal under the absentee program. Tr. 39.

            Over the next several days, Gossman reviewed time and attendance records with Tadlock, who had retrieved his personal notebook on which he recorded his absences and days worked. Gossman had found what he believed to be errors in prior record keeping, and had determined that Tadlock had accumulated as many as 8 and one-half points, subjecting him to automatic termination. As Tadlock explained, dismissal under the absentee program was something that was difficult, if not impossible, to challenge. Tr. 38-39. Tadlock garnered the assistance of a former union representative, Greg Fort, and continued to meet with Gossman. In the end, each person had his own total of occurrences. Tadlock felt that he had only six and one-half, but acknowledged that Gossman had “given him the benefit of the doubt.” Tr. 42. They shook hands, and Tadlock left, having been discharged. Tadlock believed that he had not accumulated seven occurrences, and that he had been discharged because of his complaints about safety.

Tr. 43. Fort later told him that there were other miners with as many as 12-17 occurrences who were still working. Tr. 44.

Robert Bretzman

            Robert Bretzman is an MSHA special investigator assigned to matters that arise under sections 105 or 110 of the Act, involving allegations of discrimination or personal liability of an agent of an operator. He interviewed several individuals that had knowledge or information pertinent to Tadlock’s discrimination allegation, including at least two who did not testify at the hearing. He determined that Tadlock was terminated, in part, because he made a safety complaint. Tr. 79-80. He confirmed that Tadlock had noted oil leaks on pre-operation check lists for his ram car, that it would have been proper to take a complaint involving maintenance of equipment initially to the face boss, and that his discussions with Gossman had left him unclear about why there had been two warnings about occurrences given to Tadlock on November 16, 2011. Tr. 85. He also confirmed that Tadlock would have had to drive “pretty fast” to get to Unit #4 in ten minutes as he had claimed, and that Atchinson had told him something to the effect that Tadlock had said that if they were designated to fill in on Unit #1 for the injured miner that he would say that Perry was unsafe in order to avoid the assignment. Tr. 89-91.

Big Ridge’s Witnesses - Andrew Atchison

            Atchison had served in the military for almost ten years, and began working as a miner in August 2011. He is employed by the Dave Stanley Corporation, which provides personnel to mine operators in a contract basis. On February 10, 2012, he was working at the Willow Lake mine and was paired with Tadlock to work on outby projects. They were assigned to shovel spilled coal and repair a stopping. They shoveled coal on the Main North belt line, and decided to take their lunch break about 3:00 a.m. Tadlock had mentioned, in general conversations, that he did not like Perry, but did not specify exactly why, other than an incident involving a ram car in a return. Tr. 101-02. Tadlock stated that he wanted to warm up his lunch, and intended to go to a microwave oven in Unit #4. Atchison told him that he didn’t think that was a good idea, because it involved a 25-30 minute drive, and all the supervisors were in that area installing the new Unit #5. Tr. 104-05. Since he was a “red hat,” an inexperienced miner, he did not protest too strenuously, even though they passed a microwave oven not far from where they had been working. Tr. 106-07.

            When they got to the Unit #5 area, Hawkins or Myers flagged them down and told them get off the road because there was an injured miner being brought out. Myers approached and asked them; “Why in the world are you guys up here?” Tr. 108. Tadlock responded that they were going to heat up his lunch - it was lunchtime. Hawkins came over about ten minutes later and asked why they were up there, and questioned why they had come that far to heat a lunch when there was an oven close to where they were assigned to work. Atchison stayed out of the conversation. He protested to Tadlock that the bosses had caught them up there, and that they were probably going to be put to work on Unit #1 where the miner had been injured. That unit could not produce coal without equipment sufficient to transport all of the crew, and the man trip used to transport the injured miner meant that the unit had to be shut down until it returned or another man trip was made available. Tr. 110-111. Tadlock replied that he was not going to work for Perry, “I don’t like him, and I’m not going.” Tr. 111. Atchison replied that they were not going to have a choice - they were going to be sent up to Unit #1. Tadlock responded that “they will just have to take me out first. I will tell them Larry Perry isn’t safe and I have caught him not doing air checks or something. I don’t care. I’m not working. I’m not going.” Tr. 111. Atchison thought that Tadlock was stating that he would make up a reason for not working for Perry, because his disliked him. He had never heard anything about Perry being unsafe. Tr. 111-12.

            Hawkins then came back over to them and stated that he needed one of them to go up to Unit #1 and take the man-trip up there. Tadlock replied that he was not going up to Unit #1, using some “colorful words.” Tr. 113. Hawkins questioned Tadlock about his refusal to go to Perry’s unit, and Tadlock confirmed his refusal and told Hawkins “You can take me out first.” Tr. 114. Hawkins then instructed Tadlock to get on his man-trip and took him out of the mine. Atchison was adamant that Tadlock never said anything to Hawkins about Perry being unsafe. Tr. 115-16.

Thomas Myers

            Myers was the assistant mine manager on the third shift at the Willow Lake mine. He was with Hawkins in the area of the new Unit #5 when the roads were being cleared to facilitate the transport of a miner who had been injured on Unit #1. They heard, then saw, Tadlock and Atchison approaching on a man trip and Hawkins instructed them to pull over and park it. Hawkins walked down to where they had parked, about 250 feet away, and spoke to them. Myers followed a few minutes later, and as he approached, Hawkins said that “They are going all the way to Number 4 Unit to heat their lunch.” Tr. 129. Myers responded “You got to be kidding.” Tr. 129. Myers estimated the distance that Tadlock and Atchison intended to travel at five miles, which would have taken at least 35 minutes. Tr. 133-34. Hawkins observed that the left side of Unit #1 could not run coal without the man trip that had been used to transport the injured miner, and that he was going to send Tadlock with the man trip up to the unit. He then told Tadlock to take the man trip up to Unit #1 so that they could continue to run coal, and to help out any way he could. Tr. 134-35. Tadlock replied that he did not want to work for Perry, and Hawkins confirmed that he would be working for Perry. Tadlock replied that he would not work for Perry; that he would go home. Tr. 135. Hawkins replied that he could work for Perry or he could go home, to which Tadlock replied that he would go home. Tr. 135. Hawkins then took Tadlock out of the mine.

            Myers was present during the entire conversation. He did not hear Tadlock say anything about safety, and had never heard him say anything about Perry being unsafe or about safety on his unit. Tr. 135-37. After they had finished their shift, they went to the office and talked to Gossman about what happened. They considered Tadlock’s actions to be insubordination, which was grounds for termination. Gossman said that he would look into it, and asked them to prepare written statements about the incident, which they did.

Keith Hawkins

            Hawkins was the mine manager on the third shift on February 10, 2012. He was responsible for work assignments, including Tadlock’s assignment to do shoveling and general outby work. Tr. 147. Hawkins was at Unit #5 on February 10 when he saw a man-trip approach. He motioned for it to pull over and park in order to clear the road for evacuation of an injured miner. He then noticed that it was Tadlock and Atchinson, and he walked over and inquired what they were doing on that side of the mine. Tadlock told him that he was going to heat his lunch in Unit #4. Hawkins told him that he couldn’t plan on having a place to heat his lunch and that there were other microwave ovens closer to where they were working. Tadlock didn’t “take it too well.” Tr. 149. The man-trip carrying the injured miner then came out, and Hawkins told Tadlock that he needed him to take the man-trip up to Unit #1 and help them, so that they could go on with their production. Tr. 149. Tadlock stated that he wasn’t going to go and inquired who the boss was. Hawkins answered that Perry was the boss, and Tadlock said that he wasn’t going to go. Hawkins said that he was either going to go to the unit, or he would be taken out. Tr. 150. Tadlock said he wasn’t going, and was instructed to get his things, and was transported by Hawkins out of the mine.

            Hawkins testified that Tadlock did not mention anything about Perry being unsafe, failing to take air checks or making him operate unsafe ram cars. Tr. 150-51. He also stated that Tadlock had never had any conversations with him about Perry being unsafe, and had never heard anything from anyone else about Perry being unsafe. Tr. 151-52. Hawkins kept a notebook and recorded events of interest that occurred during the work day. He recorded the February 10 incident, and did not include a mention of Tadlock making safety complaints about Perry. Tr. 152-53; Ex. R- 13.

            Hawkins and Tadlock followed the injured miner out of the mine. Hawkins checked on the miner, and Tadlock showered and left. Hawkins and Myers spoke with Gossman, and each prepared a written statement on the incident at Gossman’s request. Tr. 154; Ex. R-6. When Tadlock reported for work on Sunday night, Hawkins told him that he could not work until he spoke with Gossman, which was Gossman’s instructions to him. Tadlock then left the mine.

            Hawkins explained that Tadlock’s transfer from Unit #1 to outby work occurred as a result of reports that Tadlock was not staying on his production run, but was pulling his ram car off into the return. Tr. 158. Hawkins moved people around all the time. As he explained, if someone wasn’t fitting into the production run, whether a miner or a boss, he would move him to a different unit or outby. Hawkins denied that Tadlock had ever inquired of him whether the reassignment had anything to do with him complaining about Perry’s safety. Tr. 161.

Larry Perry

            Perry was the Unit #1 shift leader on the midnight shift. He was responsible for the left side of the unit and a crew of six miners. He took air flow readings in the intake and the return; and gas checks every 20 minutes in all working areas and the intake. Tadlock worked for him as a ram car operator, transporting coal from the continuous miner to the feeder. Perry denied that Tadlock had spoken to him in January about not taking air readings and operating unsafe equipment. Tadlock had never voiced such complaints in his presence. Tr. 174-75. He believed that because of Tadlock’s work duties he would have no knowledge of whether the required checks were bring done. Tr. 173. Equipment operators performed pre-operational checks and would bring any concerns to his attention. If it was a leak, he would send them to maintenance. Operators could also take a piece of equipment directly to maintenance if he was not available, e.g., taking an air reading in the return. Tr. 175-76.

            Perry got along fine with Tadlock, at least until he was transferred from the unit. Perry did have some problems with Tadlock’s performance. As many as two or three times per day, he would find that Tadlock had taken his ram car over to the return to rest, leaving the other two cars to load the coal. Tr. 183-84. He spoke to Tadlock, telling him the work was at the face, and it wasn’t fair to the other ram car operators to make them carry the bulk of the load. Eventually, Perry spoke to Hawkins about Tadlock, and he was moved off of Unit #1 to outby labor. Tr. 179-80. Perry was concerned that Tadlock was talking about him, calling him a back stabber and having him kicked off the unit. Perry confronted Tadlock in the “diesel barn,” and asked him why he was doing that. Tadlock apologized, and said that he was just upset. Perry was “aggravated and upset” that he was being “falsely accused” by Tadlock of not taking gas and air readings and allowing oil leaks on equipment. Tr. 168.

Robert Gossman

            Gossman is senior manager of human resources at the Willow Creek mine. He is responsible for personnel matters, including the termination of employees. On the morning of February 10, Hawkins and Myers came into the office and related the work refusal incident with Tadlock. Consistent with establish procedure, he asked them to document it, and they prepared statements. They did not state that Tadlock had said anything about not wanting to work for Perry because he was unsafe. Tr. 200-01. Gossman told Hawkins that Tadlock should not work again until he was finished his investigation and had spoken to Tadlock. Tr. 201. He always reviews attendance records, because they tell him a lot about the employee. Gossman knew that Tadlock “rode the attendance system right at the brink” and would often miss another day as soon as one of his prior occurrences dropped out of the 12-month period. Tr. 202.

            He explained that under Big Ridge’s “no-fault” absentee program, essentially any day that a miner was scheduled to work, but did not, counted as an “occurrence,” unless he had an allowance day to cover it. Each miner was allowed three personal days and one floating vacation day in a calendar year. Miners that worked the midnight shift worked a schedule that included more days than other work crews. Consequently, they got one non-scheduled day off that they could take during a month, not a paid day, just a day that they could take off without being charged an occurrence. Tr. 194-95.

            If a miner accumulates five occurrences within a 12-month period, he is given a verbal warning, which is documented. If he reaches six occurrences, he is given a written warning. At seven occurrences, he is automatically terminated. Tr. 196; Ex. R-2. Absence records are updated weekly, so there is often a lag time between a miner’s absence and any warning that might be triggered by it.

            He did a review of Tadlock’s attendance in the time-keeping system and came up with eight or nine occurrences. He asked Melissa Robie, who normally updates the system, to review available records, including absence reports filled out by supervisors. She concluded that there was a day in June 2011 that had been missed that should have been an occurrence. It hadn’t been noted as one because Tadlock had failed to report for work and had not called in, and his supervisor missed it and had not filled out an absence report. Tr. 202-03. There was another instance where Tadlock had missed two days in a row, which had been recorded as one occurrence, but which should have been recorded as two occurrences because Tadlock had given a reason different than a continuation of a personal illness for one of the days. Tr. 203. There was another day, February 8, 2012, that Tadlock had missed, but which had not yet been updated on attendance records. Tr. 203-04. Tadlock’s occurrences “went from six and one-half to eight and one-half or nine pretty quickly.” Tr. 204. Gossman did not pursue the insubordination charge, because he “didn’t need to.” Tr. 204. He knew that Tadlock did not have any personal days, or a floating vacation day to substitute for any of the occurrences because he had taken those days early in January. Consequently, he had “pointed out” on absences. Tr. 204-05.

            He first talked to Tadlock about 1:30 in the afternoon on Monday, February 13, when Tadlock returned to the mine after leaving on Sunday night at Hawkins’ instruction. Gossman told Tadlock that he had more than seven occurrences, and Tadlock said that he didn’t think so. Gossman went through the paperwork that he had available at the time, including some of the back-up documents, e.g., absence reports. Tr. 208; Ex. R-9. Tadlock thought that he had worked on some of the days in question and said that he kept attendance notes in a book at home. Gossman gave him a note listing the days in question, and asked him to get the book and come back the next morning, so that they could go through the records and eliminate any misunderstandings. Tr. 209. Tadlock called the next morning and advised that he wanted to bring Fort with him. Fort had been a union representative, but there was no union at the mine at the time. Gossman said that her could bring Fort with him, as long as he understood that Fort was not a union representative. Tr. 211-12. He had Robie prepare a calendar showing Tadlock’s status on each day of the month for October 2011 through February 2012. Tr. 211-12; Ex. R-5.

            Gossman believed that Tadlock agreed that he had missed a day, possibly June 6, 2011, and that it should have been counted as an occurrence. Tr. 212-13. They also went over the mis-characterized days, November 9, 10 and 11. The absence reports show that on November 9 he left early because he was sick. On the 10th he reported that he was caring for a sick family member, and on the 11th he again reported sick. Ex. R-9. Gossman explained that those days should have counted as two occurrences, but that they had originally been counted as only one. Tr. 214.

            Gossman Fort and Tadlock went over the attendance records, both Big Ridge’s and Tadlock’s, and tried to reach consensus on the number of occurrences. However, even though none of the days missed in January counted as occurrences, Tadlock disputed that he had used all of his personal days, one of which should have been available to cover an unexcused absence. He had not brought his book for 2012 with him, however, so they adjourned so that he could bring it in the following day. Tr. 216. They again went over the records on February 15, and Gossman related that he showed Tadlock that, even if the February 8 absence and the February 10 early departure were not counted, he still had seven and one-half or eight occurrences. Tr. 220. Tadlock put his head down and said, “I did this to myself, didn’t I.” Tr. 220. Gossman agreed and asked whether Tadlock understood where he had gotten the numbers, and Tadlock replied that he did. Gossman believed that, at that point, they were all in agreement that Tadlock had pointed out. Tr. 220-21. They stood, shook hands, and Tadlock departed. Tadlock was formally terminated on February 16, effective February 11, the day after the last day worked.

Tr. 223; Ex. R-8.

The Applicable Law

            Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the Secretary shall investigate a discrimination complaint “and 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.” The Commission has established a procedure for making this determination. Commission Procedural Rule 45(d), 29 C.F.R. § 2700.45(d), states:

The scope of a hearing on an application for temporary reinstatement is limited to a determination as to whether the miner’s complaint was frivolously brought. The burden of proof shall be upon the Secretary to establish that the complaint was not frivolously brought. In support of his application for temporary reinstatement, the Secretary may limit his presentation to the testimony of the complainant. The respondent shall have an opportunity to cross-examine any witnesses called by the Secretary and may present testimony and documentary evidence in support of its position that the complaint was frivolously brought.

“The scope of a temporary reinstatement hearing is narrow, being limited to a determination by the judge as to whether a miner’s discrimination complaint is frivolously brought.” Sec’y of Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990).

            In adopting section 105(c), Congress indicated that a complaint is not frivolously brought, if it “appears to have merit.” S. Rep. No. 181, 95^th Cong., 1^st Sess. 36-37 (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 624-25 (1978). The “not frivolously brought” standard has been equated to the “reasonable cause to believe” standard applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Sec’y of Labor on behalf of Bussanich v. Centralia Mining Company, 22 FMSHRC 153, 157 (Feb. 2000).

            While an applicant for temporary reinstatement need not prove a prima facie case of discrimination, it is useful to review the elements of a discrimination claim in order to assess whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to establish a prima facie case of discrimination under Section 105(c) of the Act, a complaining miner bears the burden of establishing (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,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).

            A miner’s ability to complain about safety issues is a fundamental right afforded and protected by the Act. Complaints made to an operator or its agent of “an alleged danger or safety or health violation,” is specifically described as protected activity in section 105(c)(1) of the Act. 30 U.S.C. § 815(c)(1). The Secretary presented evidence that Tadlock engaged in activity protected under the Act. Tadlock testified that he complained about unsafe mining practices, both to his immediate supervisor, Perry, and to the mine manager, Hawkins, when he questioned why he was being moved from Unit #1to outby work. He further testified that he repeated his assertions to Hawkins when he refused to go to Unit #1 on February 10, 2012. He suffered adverse action when his employment was terminated, not having worked after being told to leave the mine on February 10, immediately after his latest claimed engagement in protected activity.

            The Commission has frequently acknowledged that it is very difficult to establish “a motivational 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). Consequently, the Commission has held that “(1) knowledge of the protected activity; (2) hostility or animus towards the protected activity; and (3) coincidence in time between the protected activity and the adverse action” are all circumstantial indications of discriminatory intent. Id. Here, the adverse action immediately followed claimed protected activity. It is also arguable that Tadlock’s reassignment to outby work evidenced hostility toward his claimed complaints of unsafe mining practices to Perry.

            As stated in its closing argument, and post-hearing brief, Big Ridge advances three arguments in contending that the Secretary has failed to establish that Tadlock’s complaint of discrimination is not frivolous. First, it argues that the evidence conclusively establishes that it had an objective, legitimate non-discriminatory reason for terminating Tadlock, i.e., that he had exceeded seven occurrences under the absentee program. Consequently, Tadlock cannot, as a matter of law, prevail on the merits of any future discrimination complaint, and he has no right to temporary reinstatement now, even if Big Ridge had been motivated in part by a discriminatory purpose. Second, there is no evidence that Gossman, who made the determination to terminate Tadlock and who was identified in Tadlock’s MSHA complaint as the person responsible for the discriminatory action, had any knowledge of Tadlock’s claimed protected activity. Third, “even under the arguably narrow latitude that this Court has to weigh the credibility of witnesses,” Tadlock’s claims are “so sensational” that his testimony should be disregarded as not credible. Resp. Br. at 2.

            Unfortunately for Big Ridge, its arguments run afoul of established precedent defining the limited scope of a Temporary Reinstatement Proceeding. Its first argument rests on the premise that it established conclusively that Tadlock was terminated for a legitimate non-discriminatory reason, an affirmative defense upon which it would prevail in any subsequent proceeding on the merits. While the defense may not be as strong as Big Ridge believes, the short answer to this argument is that reaching the merits of a, yet unfiled, discrimination claim would be well beyond the scope of this proceeding, which is limited to a determination of whether the Secretary has established that the claim made by Tadlock is not frivolous.

            Big Ridge’s second argument is also precluded by established precedent. While there was no direct evidence that Gossman was informed of Tadlock’s claims of protected activity, a reasonable inference could be drawn that he was so informed in his discussions with Hawkins and Myers about the insubordination incident. That aside, the short answer to this argument is that “in a temporary reinstatement proceeding the Secretary is not required to prove that [the adverse action decision maker] had knowledge of [the miner’s] protected activity. Rather, she [i]s required to show only that [the miner’s] complaint was not frivolous.” Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., Inc., 21 FMSHRC 717, 718 (July 1999).

            Big Ridge’s third argument also is easily disposed of. In essence, it argues that Tadlock’s testimony regarding his claims of protected activity should be found not credible. Big Ridge introduced evidence that raised serious challenges to Tadlock’s credibility. Its witnesses uniformly refuted Tadlock’s assertions that he engaged in protected activity. Atchison testified that Tadlock’s remarks gave him the distinct impression that he would fabricate an assertion of protected activity in order to avoid working for Perry. However, the Commission has repeatedly instructed that judges should not resolve conflicts in testimony at this preliminary stage of a discrimination proceeding.

            The purpose of a temporary reinstatement proceeding is to determine whether the evidence presented by the Secretary establishes that the complaint is not frivolous, not to determine “whether there is sufficient evidence of discrimination to justify permanent reinstatement.” Jim Walter Resources, Inc., 920 F.2d at 744. “It is ‘not the judge’s duty, nor is it the Commission’s, to resolve the conflict in testimony at this preliminary stage of the proceedings.’” Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC., 31 FMSHRC 1085, 1088 (Oct. 2009) (quoting Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). See also Sec’y of Labor on behalf of Billings v. Proppant Specialists, LLC, 33 FMSHRC 2383, 2385 (Oct. 2011) (resolving conflicts in the testimony, and making credibility determinations in evaluating the Secretary’s prima facie case, are simply not appropriate at this stage in the proceeding). Congress intended that the benefit of the doubt 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. Jim Walter Resources, 920 F.2d at 748, n.11.

            The U.S. Court of Appeals for the Eleventh Circuit has described the test for whether the Secretary has established that a claim of discrimination was not frivolous as follows:

If the evidence produced by the Secretary viewed in the light most favorable to the claimants, together with all inferences that can be made in favor of claimants, would reasonably support a finding that claimants had established a prima facie case, the claim cannot be said to be frivolous.

Drummond Company, Inc. v. FMSHRC and Secretary of Labor on behalf of Owens, (11th Circuit No. 02-14394, May 9, 2003) (unpublished opinion at 6). I find that to be an appropriate statement of the law.

            Here, the Secretary produced evidence, in the form of testimony by Tadlock, that he engaged in protected activity on several occasions, and that following his protected activity his work assignment was changed, and his employment was terminated. Viewed in the light most favorable to Tadlock, that evidence would reasonably support a finding that he engaged in protected activity. He clearly suffered adverse action. As previously noted, given the proximity in time between Tadlock’s claimed protected activity, his change of work assignment and his termination, an inference could be drawn that the adverse action was motivated at least in part by his protected activity.

            I find that the Secretary has established that Tadlock’s claim of discrimination is not frivolous.

ORDER

            The Application for Temporary Reinstatement is GRANTED. Big Ridge, Inc., is ORDERED to reinstate Tadlock to the position that he held prior to February 11, 2012, or to a similar position, at the same rate of pay and benefits, IMMEDIATELY ON RECEIPT OF THIS DECISION.

                                                                        /s/ Michael E. Zielinski

                                                                        Michael E. Zielinski

Senior Administrative Law Judge

Distribution (Certified Mail):

Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8^th Floor, Chicago, IL 60604

Daniel W. Wolff, Esq., Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington, DC 20004-2595

Sean Tadlock, 245 W. Townshend, Shawneetown, IL