10. On May 13, 2011, Mr. Billings filed a Discrimination Complaint with MSHA. He supplemented the complaint on May 17, 2011 in his interview with MSHA Special Investigator Thomas Pavlat.

 

Tr. 9-11. 

 

Factual Background

 

            The Oakdale plant is a surface mine that processes high quality sand for industrial use, and is divided into a wet and dry section. Tr. 54, 66. The wet section receives deliveries of sand by dump trucks, and processes them using a hydrosizer. The hydrosizer wets the sand in order to separate “good sand” from “garbage sand.” The good sand is conveyed to the dry section, while the garbage sand is sold or given away to the local township of Byron. In the dry section of the plant, the sand is dried in a large revolving dryer drum. Tr. 66-69, 163.

 

            In the dryer drum, the sand is sometimes heated to extreme temperatures of up to 600 degrees. When the sand is heated to over 400 degrees, the over-heated sand needs discharging to prevent it from going to the next phase of the drying process and damaging equipment. Tr. 69. The dryer drum contains a sand reject conveyor that safely discharges over-heated sand to an exterior location. However, during the time period from January to April 2011, the tail shaft bearings on the sand reject conveyor were damaged, rendering the reject conveyor inoperable. Ex C-4. Therefore, FTS elected to use the dryer drum’s diverter valve (“K-valve”) to discharge over-heated sand onto the ground below. Ex. C-2.

 

            Between January and April 2011, several times during each 12 hour shift, miners were required to open the K-valve to release over-heated sand from the dryer drum, and take temperature readings of the exiting sand with a hand-held heat gun. Ex. C-2. Miners reportedly stood in the hot sand for up to five minutes until the over-heated sand had been fully discharged. If the hot sand did not impede production, it remained on the floor until miners finished higher priority tasks. The hot sand was present during both day and night shifts, and had been known to form piles in excess of four feet high. Tr. 93, 204-05. Miners were only provided leather gloves, leaving their bare arms exposed to hot sand and hot equipment. Ex. C-3. On February 27, miner Travis Fries suffered burn injuries to his feet when hot sand burned through his work boots, although he finished his shift and worked the next day. Tr. 205-06. Although Fries notified management of his injury, the dryer drum’s reject conveyor was not repaired until sometime after the MSHA inspection of April 25-27. Tr. 206-07.

 

            Burdette Billings was hired as a plant operator by John Rice, former plant manager, and worked at the Oakdale plant from December 2010 to April 2011. Tr. 54. He swept floors, shoveled snow, welded equipment, installed guards, drove loaders and skid steers (small loaders), and filled dump trucks and hoppers with sand. Tr. 57-66. On April 22, Billings was transferred from the night shift to the day shift, where he primarily operated loaders. Tr. 317-18. Beginning sometime in January or February 2011, Billings began complaining to management that using the K-valve to discharge over-heated sand onto the work floor exposed miners to hot sand, which damaged their boots. Therefore, he requested a boot allowance from FTS. Tr. 87-89. He testified that he continued to complain and make suggestions about ways to alleviate the hot sand hazard until his termination on April 28. He notified numerous management officials of the hot sand hazard including the regional manager, Brandon Crawford, and the production supervisor, Todd Rainey. Tr. 86, 90.

 

Sometime in March 2011, an anonymous caller made a hazard complaint to MSHA regarding a cracked windshield on a front-end loader at the Oakdale plant. MSHA Inspector Robert Marincel investigated the complaint on March 28 and issued a citation to FTS for the condition of the windshield. Ex. C-7; Tr. 36-37. Billings emphatically denied making this complaint. Tr. 92.

 

On April 23, Billings made a hazard complaint to MSHA alleging that miners were required to walk in hot sand to access the K-valve. Ex. C-1; Tr. 26-28. From April 25 to 27, Marincel inspected the Oakdale plant in response to Billings’ hazard complaint, and issued one citation and two orders for violations involving the hot sand hazard. Tr. 24-25. The citation was issued for lack of safe access to the K-valve of the dryer drum, and charged that miners were required to open the K-valve to release over-heated sand onto the ground, stand in the hot sand while taking its temperature, and walk back over the hot sand to exit the area. Ex. C-2. One order detailed miners’ lack of protective clothing while working near the K-valve; the other cited the defects on the sand reject conveyor which necessitated use of the K-valve. Ex. C-3, C-4.In the citation and orders, Marincel identified Brandon Crawford as having engaged in aggravated conduct, in that he directed miners to use the K-valve to release the sand onto the ground. Ex. C-2. Marincel was unaware of who had made the complaint when he issued the citation, and did not ask anyone at the plant for the Complainant’s identity. Tr. 39-40.

 

The Secretary alleges that Brandon Crawford and Todd Rainey were hostile towards Billings’ April 23 hazard complaint. In this regard, the Secretary relies on a statement made by Travis Fries during MSHA’s investigation of Billings’ complaint. Ex. C-13 at 5. In his statement, Fries stated that he met with Crawford and Rainey one or two days after the April MSHA inspection:

 

During the meeting with Crawford and Rainey I was asked by Crawford and Rainey if I knew who made the hazard complaint to MSHA. Crawford or Rainey stated that they knew Billings or I made the hazard complaint. They stated it was a process of elimination and they knew Billings or I made the hazard complaint. At that time I told them that I did not make the hazard complaint and was not taking the blame for making the hazard complaint. I got somewhat loud and mad about being named as making the hazard complaint, and just insisted that I did not make the hazard complaint. At that time Crawford said that if I did not make the hazard complaint then we know who it was. I believed that they thought Billings or I made the hazard complaint was [sic] because we both got our feet burnt in hot sand from the K-valve in the dryer and the hot sand was part of the hazard complaint. Crawford and Rainey threatened they would fire me if I didn’t tell them who made the hazard complaint. I was not going to take the blame for something that I did not do. I did not tell them that Billings made the hazard complaint. I just told them that I did not make the complaint. I had a tape recording of the meeting, but the tape recorder got damaged and [I] could not provide the tape.

 

Ex. C-13 at 5.

 

At hearing, Fries testified that he did not remember making this statement, but recalled meeting with Pavlat, and verified his signature on the written statement. Tr. 207-10. Rainey denied that such meeting ever occurred, claiming that he never talked to anyone regarding the identity of the individual who had triggered the April inspection; he also denied being present for any conversation in which Crawford accused a miner of making the April hazard complaint. Tr. 345-50. Crawford was not called as a witness.

 

In mid April 2011, Crawford met with Billings for 1½ hours. Tr. 115-17, 121-25. Billings was accompanied by Fries, and Rainey was also present. Billings admitted that during this period, he had been experiencing significant personal problems unrelated to his job that were causing him stress. Tr. 116-17, 184. He testified that at this meeting, Crawford “more or less [said] if there’s something wrong with one of [his] employees, [he’d] like to know what’s going on.” Tr. 122. According to Billings, Crawford asked him why he had failed to perform one of his job duties and why he had a poor work attitude, and the meeting ended with Billings crying and revealing personal information unrelated to his employment. Tr. 121-24.

 

On April 25, the township of Byron, near the Oakdale plant, held a meeting of its board. Crawford represented FTS before the board, and made a presentation addressing the town’s concerns with the Oakdale plant’s operations. Tr. 365. Ralea Rainey, an administrative assistant at FTS and wife of Todd Rainey, took notes at the meeting. Ex. C-21 at 11; Tr. 363-65. Billings came to the meeting late and sat next to Chad Gerke, an employee of independent contractor Gerke Excavating, who was attending the meeting on behalf of Hi-Crush, a competitor of FTS. Tr. 103-04, 366-67. Billings’ remarks to Gerke are disputed. Billings testified that he asked only whether Gerke was hiring, while Gerke testified that Billings asked him if he, Gerke, would give him a job if Billings publicly maligned Crawford at the meeting. Tr. 106, 389-90. After this exchange with Gerke, Billings stood up and interrupted Crawford’s presentation to the board, instead of waiting for the subsequent question and answer session. Tr. 107. The following description of Billings’ confrontation with Crawford by Raley Rainey (Rainey refers to Billings as “Bart”) is not disputed by the Secretary: Bart Billings stated to Brandon, in front of all meeting attendees, “Brandon do you remember what you said to me last week when I asked about giving away free sand? You said if you give them [an] inch they will take a mile.” Brandon corrected Bart and stated that he never said that to him and redirected the conversation to noise reduction. Part of the noise reduction plan is to move fuel barrels closer to the dry plant area so that our loader equipment can fuel away from the neighbors at nighttime reducing equipment noise. Bart then asked why a fuel barrel was not moved down by the dry plant over a month ago when he suggested it. Brandon stated that you can’t just put a fuel barrel anywhere, you must follow DNR and MSHA regulations and that those are both being researched. As I sat in the crowd I then heard Bart state to Chad Gerke sitting next to him that MSHA was at our plant today and proceeded to whisper to him about our facility. Bart did not present himself in the manner during the meeting that he was supporting the company; his manner and demeanor was more that he was on the attack against Brandon and the company he works for.

 

Ex. C-21 at 11; Sec’y Br. at 21.

 

            Billings admitted that his behavior was confrontational, antagonistic, and detrimental to Crawford and FTS. Tr. 147-48. He claimed that he was provoked by Crawford’s “interrogation” of him at the meeting in mid April, which ended when Billings broke down in tears. Billings explained that he sought to expose Crawford by revealing his lack of integrity to the townspeople. Tr. 129, 147. However, Billings also testified that he regrets his actions and was not aware at the time that his behavior could harm FTS, but only later learned of the board’s regulatory authority over the sand plant:

 

At the time I was talking to Brandon Crawford. It wasn’t about the company. It was about him and how he spoke to me. I think the company provides jobs for the employees, and I didn’t know the power that the township had until lately, but back then, I didn’t know what kind of power they have over the township [sic].

 

                                                                        * * *

 

I didn’t know how much power the township had over the plant until lately, but during that meeting I was ignorant to the fact of how much power the township has. And I’ve learned a lot.

 

Tr. 147-48.

 

            On April 26, Todd Rainey prepared an Employee Counseling/ Disciplinary Form (“written discipline”) for Billings for failing to chock his loader on April 25 and April 26. Ex. R-4, R-6; Tr. 329-33. Rainey testified that company policy since December 2010 dictates that all vehicles be chocked whenever parked, and that miners were made aware of this policy by word of mouth. Tr. 321-22. Billings admitted that he was aware of company policy, and that he knowingly disregarded it on multiple occasions. Tr. 165. On April 26, Rainey also prepared a written discipline for Billings for property damage, i.e., for driving a loader into a ladder after he had been signaled to stop. Ex. R-5; Tr. 338-41. Billings admitted the property damage. Tr. 140-41. Billings was not provided with copies of the written disciplines prior to his termination on April 28. Tr. 96, 327-40. During the morning of April 28, Billings, who was off-duty at the time, was sighted on mine property for approximately 1½ hours. Billings claimed that he was at the mine to get his work schedule. He admitted, however, that he had talked to numerous employees while he was on-site. Tr. 142-45.

 

            The senior vice-president of Proppants (a division of FTS), Chris Cummins, oversees approximately 200 employees, and has the power to hire, terminate and discipline employees based solely on his own authority. Tr. 397-98. In April 2011, Cummins, then in Proppants’ Fort Worth, Texas office, learned of the April 25 to 27 inspection at the Oakdale plant which had resulted in the citation and orders. At the same time, Cummins learned that an employee had disrupted FTS’s presentation at the Byron town board meeting, but was unaware of the employee’s identity. Tr. 399-401. In an effort to address these issues, Cummins traveled to the Oakdale plant on April 28. Resp’t Br. at 9.

            Upon arriving at the Oakdale plant, Cummins spoke to Crawford about the MSHA violations and the disruption of the town board meeting. During this conversation, Crawford identified Billings as the employee who had caused the disruption. Tr. 403-05. Cummins then spoke to Ralea Rainey, who corroborated Crawford’s account of Billings’ harassment of Crawford at the town board meeting. Tr. 405-06. Cummins also questioned Todd Rainey and learned about Billings’ other misconduct, i.e., his repeated failure to chock his loader and damaging the ladder. Tr. 406-08. According to Cummins, when he interviewed Billings about the incident at the town board meeting, Billings stated that he had a right to attend the meeting as a resident of the area. Tr. 410. Cummins also asked Billings about his repeated failure to chock his loader, the damaged ladder, and his off-duty visit to the mine, and Billings responded that he could not find chocks and urgently needed to use the bathroom, and that he was not at fault for damaging the ladder because he had not been signaled to stop. Tr. 411-12.

 

Later that day, Cummins prepared and issued an Employee Counseling/ Disciplinary Form to Billings (“notice of termination”) which gave four reasons for Billings’ termination: 1) failing to chock a loader on two occasions; 2) damaging property by driving a loader into a ladder; 3) intentionally making material misrepresentations and statements detrimental to FTS at the town board meeting; and 4) visiting mine property while off-duty. Ex. C-9 at 1-3; Tr. 132. Cummins emphasized that he terminated Billings solely on his own authority, and that he was unaware of Billings’ protected activity at the time. Each reason given in the notice of termination referenced policies in the Employee Handbook prohibiting specified misconduct. While both Cummins and Crawford signed the notice of termination, Cummins testified that Crawford had no input in Billings’ termination, and that Billings’ written notice would have been issued without Crawford’s signature. Tr. 417-19, 424.

 

Findings of Fact and Conclusions of Law 

 

In order to establish a prima facie case of discrimination under section 105(c)(1) of the Mine Act, a miner must prove by a preponderance of the evidence “(1) that he engaged in a protected activity, and (2) that the adverse action was motivated in any part by the protected activity.” Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). The Commission has noted that “direct evidence of motivation is rarely encountered; more typically, the only available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Circumstantial evidence may include: 1) coincidence in time between the protected activity and the adverse action; 2) knowledge of protected activity; 3) hostility or animus toward the protected activity; and 4) disparate treatment. The more that hostility or animus is specifically directed toward the protected activity, the more probative it is of discriminatory intent. Id at 2510.

 

           Once the complainant has established a prima facie case, “[t]he operator may attempt to rebut [the] prima facie case by showing either that the complainant did not engage in protected activity or that the adverse action was in no part motivated by protected activity.” Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n.20 (Apr. 1981). The operator may also affirmatively defend by proving by a preponderance of the evidence that it was motivated by both the miner’s protected and unprotected activities and would have taken the adverse action for the unprotected activity alone. Robinette, 3 FMSHRC at 818. The Commission has explained that an affirmative defense should not be “examined superficially or be approved automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must “determine whether they are credible and, if so, whether they would have motivated the particular operator as claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Commission has explained that “pretext may be found, for example, where the asserted justification is weak, implausible, or out of line with the operator's normal business practices.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). However, the Commission has also stated that “[its] judges should not substitute for the operator’s business judgment [its] views of “good” business practice.” 3 FMSHRC at 2516.

Prima Facie Case

 

For the reasons set forth below, I find that the Secretary has successfully made out a prima facie case by showing that Billings engaged in protected activity and was terminated, in part, for his protected activity.

 

The Secretary asserts that Billings engaged in protected activity on three separate occasions: 1) between January and April 2011 when he complained to plant management about working in hot sand; 2) in March 2011 when he was erroneously suspected of making a hazard complaint to MSHA regarding a broken windshield; and 3) on April 23, 2011 when he made a hazard complaint to MSHA regarding the hot sand. FTS concedes that Billings engaged in protected activity when he complained to management regarding the hot sand, and when he made the April hazard complaint to MSHA. Resp’t Br. at 16-18. It is unnecessary to resolve whether Billings was suspected of making the March hazard complaint about the cracked windshield, since the Secretary made out a prima facie case based on the April hazard complaint.

 

Since there is no direct evidence of discriminatory intent, the Secretary relies upon circumstantial evidence to prove that FTS discriminatorily terminated Billings because of his April 23 hazard complaint. As will be discussed fully, I find that the Secretary has established a temporal nexus between the April hazard complaint and Billings’ termination, that plant management knew that Billings had made the April hazard complaint, and that plant management was hostile towards that complaint.

 

The Commission has found that a discharge occurring approximately two weeks after protected activity is sufficiently coincidental in time to support a finding of discriminatory motive. Secretary of Labor on behalf of Clay Baier v. Durango Gravel, 21 FMSHRC 953, 959 (Sept. 1999). This case presents an even stronger causal connection, since Billings was terminated on April 28, a mere five days after he had made the hazard complaint to MSHA on April 23. Ex. C-1, C-9 at 3. Therefore, I find that the five day interval is sufficiently close in time to establish a causal connection between the April hazard complaint and Billings’ termination.

 

The Commission has recognized that an operator’s knowledge of protected activity “is probably the single most important aspect of a circumstantial case.” Chacon, 3 FMSHRC at 2510. It has also cautioned that “an operator may not escape responsibility by pleading ignorance due to the division of company personnel functions,” and that a supervisor’s knowledge of an employee’s protected activity can be imputed to an upper-level decision-maker if the supervisor influenced the decision-maker’s termination decision. Metric Constructors, 6 FMSHRC 226 (Feb. 1984); Turner v. National Cement, 33 FMSHRC 1059 (May 2011). The evidence establishes that the regional manager, Brandon Crawford, and the production supervisor, Todd Rainey, suspected that Billings had made the April 23 hazard complaint to MSHA. After the MSHA inspection had begun on April 25, Crawford and Rainey questioned Travis Fries about the identity of the miner who had made the hazard complaint, and accused Fries or, alternatively, Billings of having made it. When Fries denied culpability, Crawford and Rainey intimated that they knew who had made the complaint. In reaching this conclusion, I have credited Fries’ statement to the MSHA investigator, rather than Rainey’s testimony that he had no part in the conversation.

 

Cummins credibly testified that he was solely responsible for terminating Billings, and that he was unaware of Billings’ protected activity when he issued the notice of termination. Tr. 417-19, 424. However, it is clear from the evidence that Cummins’ decision was influenced by Crawford and Rainey. Cummins testified that upon arrival at the Oakdale plant on April 28, he had separate conversations with Crawford and Rainey about misconduct on the part of Billings, including the Byron town board confrontation, failure to chock the loader, and damage to the ladder. Tr. 403-08.  

Given that the record establishes that the manager and supervisor who knew of Billings’ protected activity directly reported to the upper-level decision-maker at least some of the reasons given for Billings’ termination, it is reasonable to assume that Crawford’s and Rainey’s conversations with Cummins influenced Cummins’ decision to terminate Billings. I note that this factual scenario is very similar to that in Metric Constructors, where the Commission imputed the supervisor’s knowledge of the employee’s protected activity to the upper-level decision-maker, where that supervisor had reported the misconduct used as the basis for the miner’s termination. 6 FMSHRC at 228. As is the case here, the upper-level decision-maker was unaware of the employee’s protected activity, and was solely responsible for terminating him. Id. at 230 n.4. Accordingly, I find that Crawford’s and Rainey’s knowledge of Billings’ protected activity is imputable to Cummins.

 

            The Commission has also recognized that a supervisor’s animus towards an employee’s protected activity can be imputed to an upper-level decision-maker if that supervisor influenced the decision-maker’s termination decision. Turner, 33 FMSHRC at 1068-69. Fries’ account of his meeting with Crawford and Rainey clearly establishes their animus towards Billings’ April hazard complaint. Moreover, Fries contended that Crawford and Rainey had threatened to fire him if he refused to divulge who had made the hazard complaint. Ex. C-13 at 5. Based on Crawford’s and Rainey’s knowledge of and animus towards Billings’ protected activity, and considering that they influenced Cummins’ decision to terminate Billings, I find that their animus towards Billings’ hazard complaint is also imputable to Cummins.

 

Therefore, the Secretary has established that FTS’s termination of Billings was motivated, in part, by his hazard complaint to MSHA. I also find that FTS has not proven that it was in no way motivated by Billings’ protected activity and, therefore, that it has failed to rebut the Secretary’s prima facie case.

 

Affirmative Defense

 

            FTS contends that even if Billings’ termination were partially motivated by his protected activity, Billings would have been terminated for his unprotected activity alone. The notice of termination provides four reasons for Billings’ termination: failing to chock his loader, property damage, misconduct at a town board meeting, and presence on mine property while off duty. Ex. C-9 at 1-3. FTS argues that Billings’ conduct at the town board meeting was alternative and independent of the other reasons for his termination, and that his disruptive behavior, by itself, motivated his termination. Resp’t Br. at 23. For the reasons set forth below, I find that FTS affirmatively defended its decision to terminate Billings.

 

            The U.S. Court of Appeals for the Sixth Circuit’s seminal decision in Pendley v. FMSHRC has required that when an operator has provided multiple reasons for termination, a distinction must be made between cumulative reasons and alternative and independent reasons. 601 F.3d 417 (6th Cir. 2010). An operator’s reasons are cumulative when the operator based its decision on all the reasons listed in the notice of termination. Alternatively, an operator may have viewed each enumerated reason as an alternative and independent basis for termination. Whether the reasons are cumulative or alternative and independent is determined by considering the viewpoint of the decision-maker responsible for the termination; if that individual viewed a reason as alternative and independent, that reason can be considered independent of the other reasons. Id. at 425-26 n.4.

 

In Pendley, the Sixth Circuit provided a framework for analysis. The court explained that when reasons for termination are cumulative, each reason must be a credible basis for discipline. In contrast, when the reasons are alternative and independent, “the falsity or incorrectness of one may not impeach the credibility of the remaining articulated reason(s).” Id. at 426 n.4 (citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1329 (6th Cir. 1994)). In providing practical guidance as to how to distinguish between the two categories of reasons, the court stated that the structure of the termination notice and the decision-maker’s testimony are probative. Id. at 425-26 n.4. In this case, the testimony of the decision-maker is especially crucial in determining the category into which the reasons fall, since the notice of termination is FTS’s generic personnel form used for all disciplinary actions.

 

Cummins testified that in his view, Billings’ misconduct at the town board meeting was independent of the other reasons for his termination. Cummins stated that even before his arrival at the Oakdale plant, he was considering terminating the employee who had caused the ruckus at the town board meeting. Tr. 418-19. Cummins later asserted that Billings’ conduct at the town board meeting, by itself, would have been sufficient to justify Billings’ termination, emphasizing that had he not been made aware of Billings’ other misconduct, he would have, nevertheless, terminated him for insubordination at the town board meeting. Tr. 424-25. He stated that he considered Billings’ conduct to be a very serious offense because it damaged FTS’s reputation and, therefore, he would have terminated Billings regardless of any apology made by him. Tr. 443-46. Furthermore, Cummins testified, he would have terminated Billings even if Billings had explained that his disruptive behavior was due to his frustration over management’s failure to correct safety hazards at FTS. Tr. 446. I credit Cummins’ testimony and, therefore, find that Billings’ disruptive conduct at the town board meeting was an alternative and independent basis for his termination. 

In considering whether Billings’ insubordination at the town board meeting would have, by itself, motivated Billings’ termination, I note that the Secretary has declined to address Billings’ behavior at the town board meeting, but has focused on discrediting the other reasons for his termination. In fact, the Secretary takes the position that she “does not dispute the description of Mr. Billings’ appearance at the Byron Township meeting that Ralea Rainey prepared . . . . Whether Mr. Billings’ conduct at that meeting alone, absent his protected activity, would have been sufficient to support his termination is a determination that the Court will make.” Sec’y Br. at 21. Assuming, arguendo, that the Secretary had challenged the credibility of terminating Billings solely for his misconduct at the town board meeting, based on the available evidence, she would not have been successful in discrediting FTS’s affirmative defense.

In the Turner discrimination case, the Commission set forth three ways in which a complainant may challenge the credibility of an operator’s affirmative defense. First, a complainant may establish that the operator’s proffered reasons have no basis in fact, i.e., they are factually false. 33 FMSHRC at 1073. Second, a complainant may show that the proffered reasons did not actually motivate the discharge, i.e., a complainant admits the factual basis underlying the employer’s proffered reasons and that such conduct could motivate dismissal, but attacks the credibility of the proffered reasons indirectly by showing circumstances which tend to prove that an illegal motivation was more likely than the legitimate business reasons proffered by the employer. Third, a complainant may show that the employer’s proffered reasons were insufficient to motivate termination, i.e., other employees were not terminated even though they engaged in conduct substantially similar to the conduct which formed the basis of the complainant’s termination. Id.

 

The Secretary concedes that Ralea Rainey’s description of Billings’ conduct at the town board meeting was accurate and, therefore, she has failed to show that FTS’s proffered affirmative defense is factually false. Sec’y Br. at 21. The Secretary also has failed to show that other employees were not terminated for engaging in conduct substantially similar to that of Billings. Finally, there is no circumstantial evidence which would indicate that Billings’ combative behavior at the town board meeting was not sufficient motivation to justify his termination. On the contrary, the evidence suggests otherwise, that his conduct was egregious enough, standing alone, to motivate his termination. Billings, himself, acknowledged that he sought to expose Crawford by showing the townspeople “what they’re dealing with.” Tr. 129. He also admitted that if he had known the breadth of the town board’s influence respecting FTS’s business operations, he would have never publicly confronted Crawford. Tr. 147-48. In this regard, Chad Gerke, the independent contractor who was sitting next to Billings, testified that the town board can restrict sand plant operations in Oakdale by recommending to the county board that a mine permit be denied to an operator. According to Gerke, the county board gives great weight to the recommendations of the town board regarding issuance of mine permits. Tr. 387-88. Cummins had these same concerns in mind when he terminated Billings for his misconduct at the town board meeting. Cummins testified that “getting along with the people is too important to us.” Tr. 446. Consequently, Billings’ public confrontation with Crawford, by his own admission intended to cast Crawford in a bad light, was clearly serious enough, standing alone, to motivate his termination.

 

Since FTS’s alternative and independent reason, Billings’ disruption of the town board meeting, motivated his termination, it is unnecessary to assess the credibility of the remaining reasons given for Billings’ termination. Therefore, I find that FTS affirmatively defended its actions, by proving that Billings was terminated for a legitimate business-related reason.

 

Provocation

 

The Secretary attempts to rebut FTS’s affirmative defense by alleging that Crawford’s “interrogation” of Billings in mid April 2011, which resulted in Billings’ tearful breakdown, provoked Billings’ misconduct at the town board meeting. Sec’y Resp. to Resp’t Br. at 3-4. Billings testified that “[Crawford] made these comments to [him], so . . . that’s why [he] had this conversation back and forth with him at the town hall meeting.” Tr. 125. In this regard, the Commission has recognized that wrongful provocation by an employer may be grounds for excusing misconduct of an employee:

 

Even if the judge determines that Reading has established the elements of its affirmative defense, the question remains whether that defense must nevertheless fail because Bernardyn’s conduct was provoked. Although we have recognized that cursing is opprobrious conduct unprotected by the Mine Act, Cooley, 6 FMSHRC at 520-21, and would find threats all the more opprobrious, in many cases decided under the National Labor Relations Act, 29 U.S.C. § 141 et seq. (1994) (“NLRA”), courts have recognized that an employer cannot provoke an employee into an indiscretion and then rely on that indiscretion as grounds for discipline . . . . The question thus remains for the judge to determine on remand whether Bernardyn’s cursing (including the alleged threat) was provoked by Reading’s response to his protected refusal to drive faster. The judge must also determine whether the particular facts and circumstances of this case, when viewed in their totality, place Bernardyn’s conduct within the scope of the “leeway” the courts grant employees whose “behavior takes place in response to [an] employer’s wrongful provocation.”

 

Sec’y of Labor on behalf of Bernardyn v. Reading Anthracite, 22 FMSHRC 298 (Mar. 2000) (citing Trustees of Boston Univ. v. NLRB, 548 F.2d 391, 393 (1st Cir. 1977)).

 

Crediting Billings’ account of his meeting with Crawford, I find that the Secretary has failed to provide any evidence that Crawford’s conduct was provocative or in any way wrongful. Billings, by his own account, was suffering from stress caused by personal problems unrelated to his job, which may explain his poor work attitude in general, and his emotional breakdown. Crawford’s questions to Billings about his poor performance and work attitude were based on legitimate business related concerns. Furthermore, also by Billings’ own account, he was not threatened during this meeting, and no mention was made of his safety complaints whatsoever. Tr. 185-86. Consequently, I am unable to find any basis upon which Billings’ conduct at the town board meeting is justified or otherwise excusable. Therefore, I find that FTS’s affirmative defense survives the Secretary’s allegation of wrongful provocation.

 

In conclusion, I find that the Secretary has established a prima facie case of discrimination under section 105(c) of the Mine Act. I also find that FTS affirmatively defended its termination of Billings. Therefore, based on a thorough review of the record, I conclude that the Secretary has failed to prove, by a preponderance of the evidence, that FTS discriminatorily terminated Billings in violation of section 105(c) of the Act.

 

ORDER

 

            ACCORDINGLY, it is ORDERED that Burdette Billings’ Discrimination Complaint against FTS International Proppants, LLC, is DISMISSED.

 

 

 

 

                                                            /s/ Jacqueline R. Bulluck

                                                            Jacqueline R. Bulluck

                                                            Administrative Law Judge 

 

 

Distribution: (Certified Mail)

 

Mark N. Savit, Esq., Patton Boggs, 1801 California Street, Suite 4900, Denver, CO, 80202

 

Marci M. Fulton, Esq., Patton Boggs, 1801 California Street, Suite 4900, Denver, CO, 80202

 

Eileen R. Hurley, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Suite 844, Chicago, IL 60604

 

Burdette Billings, 12353 Grover Road, Camp Douglas, WI 54618

 

/dm