FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW
JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA
15220
TELEPHONE: (412) 920-7240
FACSIMILE: (412) 928-8689
June 6, 2013
|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), on behalf of DARRICK PIPER, Complainant
v.
KENAMERICAN RESOURCES, INC., Respondent |
: : : : : : : : : : |
TEMPORARY REINSTATEMENT PROCEEDING
Docket No. KENT 2013-751-D MSHA Case No.: MADI-CD 2013-16
Mine: Paradise #9 Mine ID: 15-17741 |
DECISION
AND ORDER
REINSTATING DARRICK PIPER
Appearances: Donna E. Sonner, Esq.,
Todd
C. Myers, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC,
Before: Judge Andrews
Pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@), 30 U.S.C. ' 801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary@) on May 14, 2013, filed an application for temporary reinstatement of Darrick Piper (“Piper” or “Complainant”) to his former position with KenAmerican Resources, Inc., (AKenAmerican@ or ARespondent@) at the Paradise #9 Mine pending final hearing and disposition of the case.
On February 1, 2013, Piper filed a Discrimination Complaint alleging that his December 31, 2012 termination was motivated by his protected activity.[1] The Secretary filed an application for temporary reinstatement on March 19, 2013. On April 5, 2013, the Secretary submitted an unopposed motion to dismiss the application, and an Order granting the dismissal was issued on April 8, 2013.
On
March 27, 2013, Piper filed a second Discrimination Complaint based upon
KenAmerican’s failure to recall him after layoff.[2]
The Secretary initiated a second
investigation and filed a renewed application for temporary reinstatement on
May 14, 2013. In the Secretary=s application, he represents that the
complaint was not frivolously brought, and requests an Order directing
Respondent to reinstate Piper to his former position as a shuttle car driver at
the
Respondent
filed a request for hearing on May 22, 2013.
An expedited hearing was held in
Respondent also filed a Motion to Dismiss just prior to the hearing with a brief on the issue of whether Piper was a “miner” at the time of the alleged discrimination. In his pre-hearing brief, the Secretary opposed the motion. At the hearing, the parties restated their positions on the issue. As will be explained in greater detail herein, the Motion to Dismiss should be, and is, DENIED.
For
the reasons set forth below, I grant the application and order the temporary reinstatement of Piper.
Temporary Reinstatement
Relevant law
Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the Mine Act. The purpose of the protection is to encourage
miners Ato play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif miners are to be encouraged to be active in matters of
safety and health, they must be protected against any possible discrimination
which they might suffer as a result of their participation.@ S. Rep. No. 181, 95th Cong., 1st Sess. 35
(1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2nd Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977, at 623 (1978).
With respect to temporary reinstatement, section 105(c)(2)
provides, “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).
In adopting section 105(c), Congress indicated that a complaint is not
frivolously brought if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.
2nd Sess., Legislative History of the Federal Mine Safety and Health Act of
1977, at 624-25 (1978). In addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also equated Anot frivolously brought@ to Areasonable cause to believe@ and Anot insubstantial.@ Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d
738, 747 & n.9 (11th Cir. 1990).
Temporary Reinstatement is a preliminary proceeding, and
narrow in scope. 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, Piper 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 analytic 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. 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.
On March 27, 2013, Piper filed a Discrimination
Complaint, which included a brief Discrimination
Report, which stated:
I was laid off on 12/31/12 due to Excessive
Absenteeism. Some of [the] absences were
due to work related injuries that were being handled by Workers Compensation
and were counted against me in the Excessive Absenteeism program and should not
have been. Since the time of my lay off
others that were laid off at the same time as I was, for the same reason
(Excessive Absenteeism) have recently been called back to work. I was told on March 27, 2013 that the Company
could not talk to me about this and that I would not be recalled due to the
fact that I have filed a previous 105c Complaint against the Company. At this time I am requesting temporary
reinstatement and back pay from the date of lay off.
GX-5.
Following the filing of the complaint, the Secretary
performed an investigation and determined that the Complaint was not
frivolously brought. On May 14, 2013,
the Secretary filed an Application for Temporary Reinstatement of Darrick Piper.
GX-2.
Submitted with the Application for Temporary reinstatement
was the May 6, 2013 Declaration of Special Investigator Curtis R. Hardison. The Declaration, in pertinent part, is as
follows:
GX-2.[5]
Darrick Piper has 23 years of
underground and surface mining experience. Tr. 18-19. He first worked at Beech Creek Energy in
Piper started working for KenAmerican in 2007. Tr. 20. His first jobs with the company involved shoveling belts and working on the units. Tr. 20. Piper then operated the Fletcher roof bolter, the scoop, the shuttle car, and the miner. Tr. 20. Piper has fire brigade training and Mine Emergency Technician (MET) training. Tr. 21. Out of over 300 miners at the mine, Piper was one of 22 on the fire brigade. Tr. 22.
Piper has knee problems and has sustained injuries at work that caused him to take time off. Tr. 40-41. In October 2012, Piper reported to Mine Foreman Jeremy Carroll that he believed that his face boss was using drugs.[6] GX-2, Decl. Kirby Smith. In Piper’s February 1, 2013, discrimination complaint, the Special Investigator found that as a result of Piper’s complaint he was transferred from the shuttle car to the scoop, a job that exacerbated his knee problems. GX-2, Decl. Kirby Smith. Furthermore, Piper’s November 2012 evaluation was modified from twos and threes (out of a scale of one to three) to ones and twos. GX-2, Decl. Kirby Smith.
Piper was laid off on December 31, 2012, and filed a discrimination complaint on February 1, 2013.[7] Tr. 23. At the time, 10 other employees were laid off for reasons that Respondent claims were related to economic conditions. Tr. 52, 58. On January 1, 2013, Piper ran into the director of Human Resources, Ronald Winebarger, at a store called Uncle Lee’s.[8] Tr. 34, 53. Winebarger was with his daughter, and Piper asked if the two of them could speak privately. Tr. 53. Winebarger complied and Piper asked Winebarger about his layoff. Tr. 53. Winebarger responded that the primary criterion that was used in his layoff was his excessive absenteeism. Tr. 53. Piper asked about being recalled to work and Winebarger told Piper to check back with him in a couple of weeks. Tr. 34.
In February, Piper went to KenAmerican and spoke with the general manager, Randy Wiles. Tr. 34-35. Wiles told Piper, “you may be the best miner man that we have down there,” and told him that “there’s a good chance that you will get your job back.” Tr. 35. Wiles told Piper that the layoffs were due to the economic conditions and that the first to get laid off were the individuals with excessive days off. Tr. 36. Piper also spoke with Winebarger, and Winebarger described the conversation as being similar to the one they had at Uncle Lee’s. Tr. 54.
Winebarger testified that there was a hiring freeze for a few months after the layoff. Tr. 57. After there was enough attrition through layoff or voluntary quits, KenAmerican lifted the hiring freeze at the end of February. Tr. 57. The general manager approached Winebarger and told him that they needed to start rehiring, and to first consider the individuals that were laid off. Tr. 58. Winebarger reviewed the 10 files of the individuals that were laid off, including Piper’s. Tr. 58. Piper never filed a formal application for reemployment with KenAmerican. Tr. 37. He then took the files to Joe Manning, the general mine foreman, and they went through each file together, looking primarily at the individual’s record of excessive absenteeism. Tr. 58-59. If they felt individuals would not continue to have absenteeism problems, then they invited those individuals in to talk with them. Tr. 58-59. The individuals called in were Bobby Morris, Tony Young, Billy Lear, Lawrence Bowman, James Duncan, and Justin Bennett. Tr. 59-61. Winebarger did not have counsel present when he talked with these individuals. Tr. 64. He testified that he would contact counsel to be present if he needed to contact Piper. Tr. 64.
Those individuals came and spoke with Winebarger and Manning. Tr. 59. They were asked general questions about what they were doing, whether they had found other employment, and about their feelings towards reemployment at KenAmerican. Tr. 59. Winebarger offered reemployment to Morris, Young, Lear and Duncan. Tr. 60. Morris, Lear, and Young accepted the offer of reemployment and came back to work at KenAmerican. Tr. 60. Morris was a roof bolt operator, Young was a shuttle car and scoop operator, and Lear was a shuttle car operator. Tr. 61. These other employees did not have fire brigade or MET training, nor did they have the same experience in operating the roof bolters, scoops, or miner. Tr. 25.
Other individuals with excessive absenteeism were laid off and recalled. Tr. 64. None of those individuals filed discrimination complaints. Tr. 64. Winebarger testified that this was because Piper had a history of absence problems stretching back to 2009, and they became worse in the end of 2012. Tr. 65.
KenAmerican had two absenteeism policies. Tr. 66. An employee is found to be in violation of the first policy if he has three or more occurrences of absenteeism and has an absence rate above 2.5%.[9] Tr. 66-67. An employee is found to be in violation of the second absenteeism program if he has two unexcused absences within a 60-day period. Tr. 67. When that occurs, the employee is labeled an “irregular worker” and retains the designation unless six months pass without an additional absence. Tr. 67. Winebarger testified that at the time of the layoff, Piper was in violation of both policies. Tr. 67. Some of these absences were due to a work-related knee injury, which Piper explained to HR at the time of the absences. Tr. 40-41.
Billy Lear, who was laid off at the same time as Piper and subsequently recalled, was also in violation of both policies. Tr. 67. He was recalled over Piper because he had no absences in the prior 12 months and was close to the one-year anniversary of his two unexcused absences. Tr. 68. The two other workers that accepted the offer of recall were not in violation of either policy. Tr. 68. The worker who declined the offer of recall was in violation of the absenteeism policy, but he did not have an absence in the previous 12 months. Tr. 68.
On March 27, 2013, after hearing that three of the individuals that were laid off with Piper were recalled, Piper called Winebarger. Tr. 23. Winebarger told Piper that he could not speak to him because Piper had filed a complaint against the company.[10] Tr. 23. Winebarger testified that he responded in this manner because KenAmerican counsel have previously advised him to have counsel present when speaking with anyone that is a party to litigation against the mine. Tr. 55. Piper understood Winebarger’s comment to mean that he was being “blackballed.” Tr. 41-42:
Q. When you had the conversation with Mr. Winebarger on or about March 27th, I know there’s been a discussion as to your summary of that conversation and this complaint.
When he told you that he couldn’t talk to you, what did you—since you had filed a complaint against them, what did you think that that meant?
A. Well, at that time, in that given time, it just really devastated me at that time, you know, saying that you had filed a lawsuit against the company and now we can’t even communicate with each other, now what have I done, you know?
Q. And if you can’t communicate, can you get your job back?
A. No. You cannot do that. So at this period of time, I thought, well, they don’t want to talk to me because I have drawn a lawsuit against them, so then that made me feel like I was being blackballed.
Tr. 41-42.
After speaking with Winebarger, Piper filed a discrimination complaint with MSHA on March 27, 2013. Tr. 24; GX-5.
Contentions of the Parties
The Secretary argues that the scope of a temporary reinstatement hearing is limited to a determination of whether the complaint was frivolously brought. Under that standard, the Secretary maintains that Piper should be reinstated to his previous position at KenAmerican. The Secretary further argues that Piper was a “miner” for the purposes of his discrimination complaint under the Act. The Secretary connects the several complaints that Piper made, referring to them as “directly and inextricably linked,” and argues that but for his initial complaint he would have been recalled to work. Sec. Pre-Hearing Brief, 10-11. The Secretary argues that in order to effectuate the safety purposes of the Act, the term “miner” in 105(c) must include a miner who is not currently working in the mine.
The Respondent argues that Piper was not a “miner” under the Act, but rather an applicant for employment, and therefore is not entitled to temporary reinstatement. Citing Young v. Lone Mountain Processing, Inc., 20 FMSHRC 927, the Respondent maintains that temporary reinstatement is not an available remedy. Piper’s lay off meant he was a former employee and had lost his status as a “miner” when he filed the March 27, 2013 discrimination complaint. Therefore, according to Respondent, the Act only allows for a full discrimination hearing.
Findings
and conclusions
Protected
activity and “miner” status
Piper engaged in protected activity when he
filed a discrimination complaint with MSHA on February 1, 2013. GX-1. Section 105(c)(1) prohibits discrimination against
a miner in exercising his statutory rights. 30 U.S.C. §815(c)(1). Furthermore, it specifically prohibits
discrimination based on a miner having “instituted or caused to be instituted
any proceeding under or related to this chapter…or because of the exercise by
such miner, representative of miners or applicant for employment on bealf of
himself or others of any statutory right afforded by this chapter.”
In the instant case, Piper also engaged in
protected activity when he complained about his fire boss using drugs and when
he missed work due to injuries. GX-2,
Decl. Kirby Smith. See
James Eldridge v. Sunfire Coal Company, 5 FMSHRC 408, 464 (March 1983)(miner’s
work refusal 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). What followed was a series of
protected activities and resulting adverse employment actions that each relate
back to the former. Piper was laid off
and filed a Section 105(c) complaint alleging that the layoff was
discriminatory. Tr. 23. Then, as a
result of his filing a discrimination complaint, Piper was not recalled when
other miners with lesser experience or credentials were recalled. These protected activities cannot be viewed
in isolation, as the Respondent insists, because each flows from the previous
one.
The Respondent argues that since Piper’s
second discrimination complaint concerning his not being recalled was filed after
he was laid off, then Piper was not a “miner,” and therefore not entitled to
temporary reinstatement. Respondent
argues that Piper was an “applicant for employment,” and cites to Secretary
of Labor, obo Ray Young v. Lone Mountain Processing, 20 FMSHRC 927 (Sep.
1998), for the proposition that applicants for employment are not entitled to
temporary reinstatement. In Lone
Mountain Processing, the Commission held that an applicant for employment
is not entitled to temporary reinstatement.
In the instant case, Piper was a “miner”
within the definition of the Mine Act when he began engaging in the protected
activities that set the chain of claimed discrimination and adverse actions in
motion.[12] His second discrimination complaint of March
27, 2013 is inextricably linked to his employment at Respondent’s mine and his
first discrimination complaint, which Piper filed for the alleged discrimination
suffered while employed at Respondent’s mine. GX-5. Indeed, the subject of Piper’s second
discrimination complaint concerned his not being recalled following what he
believed to be a discriminatory layoff. GX-5.
Under these circumstances, it would make little sense to analyze Piper’s
second discrimination complaint in isolation from the chain of events that led
to the instant discrimination complaint.
As long as this complaint of discrimination relates back to when Piper
was a “miner,” then he is eligible for temporary reinstatement. Under Respondent’s argument, miners could too
easily be stripped of their status as “miners” and therefore lose a significant
protection that is at the heart of the Mine Act.[13]
Adverse
Action
The
Commission has defined “adverse action” as:
“‘[A]n action of commission or omission by the operator
subjecting the affected miner to discipline or a detriment in his employment
relationship.”’ 601 F.3d at 428 (quoting Sec'y on behalf of Jenkins v.
Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984)). At the same
time, the Commission has recognized that, while “discrimination may manifest
itself in subtle or indirect forms of adverse action,” at the same time “an
adverse action ‘does not mean any action which an employee does not like.”’ Hecla-Day
Mines Corp., 6 FMSHRC at 1848 n.2 (quoting Fucik v. United States,
655 F.2d 1089, 1096 (Ct. Cl. 1981)). Consequently, where the action alleged to
be adverse against the miner is not self-evidently so - such as a discharge or
suspension would be - the Commission will closely examine the surrounding
circumstances to determine the nature of the action.
Secretary of Labor, obo Lawrence L. Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930 (Aug. 2012). Under this definition, the Respondent’s failure to recall, or even seriously reconsider, Piper was an adverse action. Piper was among 10 employees that were laid off on December 31, 2012. Tr. 52. When the hiring freeze was lifted in late February, the general manager told Winebarger that the company needed to start rehiring and that he should begin with the miners that were laid off. Tr. 58. Six of the 10 laid off employees were called in for an interview, and Piper was not among them. Tr. 59-61. None of the individuals invited for interview had filed discrimination complaints. Tr. 64. Winebarger testified that the interviews were informal and he did not have counsel present. Tr. 59, 64. However, if he had invited Piper for an interview, he would have had counsel present for the meeting. Tr. 64. Of these six individuals invited to interview, four were offered their jobs back, and three accepted the offer. Tr. 60. These employees did not have fire brigade or MET training, as Piper did. Tr. 25. They also did not have the same experience as Piper in operating the roof bolters, scoops, or miner. Tr. 25.
Winebarger
testified that the primary reason that Piper was not considered for recall was
because he was in violation of both of the operator’s absenteeism policies. Tr.
67. However Billy Lear, the employee
recalled as a shuttle car driver (which was also Piper’s position), was also in
violation of both of the absenteeism policies. Tr. 67. Winebarger explained that Lear’s record of
absenteeism was improving when he was laid off and Piper’s was getting worse.
Tr. 65, 68. However, Piper explained
that the absences prior to his layoff were the result of his work-related knee
injury. Tr. 40-41.
Piper
began working for Pollard & Son on April 9, 2013, and is currently earning
$16 per hour, with no benefits, at his job operating the track hoe and dozer.
Tr. 37. Had Piper been recalled to his
position operating the shuttle car at KenAmerican, he would be earning $22.50
per hour (plus an additional three to four hours per day of overtime at $32.25
per hour) and would have health insurance, a 401(k) plan, and other benefits.[14]
Tr. 42-43. The Respondent’s failure to
recall Piper was a significant detriment in his employment relationship and
therefore constituted an adverse action.[15]
Nexus between the protected activity and the alleged
discrimination
Having concluded that Piper engaged in protected activity,
the examination now turns to whether that activity has a connection, or nexus
to the subsequent adverse action, namely the failure to recall Piper for
employment at KenAmerican.
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.
Knowledge of the protected activity
Winebarger testified that he had knowledge of Piper’s protected activity of filing the discrimination complaint against KenAmerican. Tr. 55. Indeed, it was because of his knowledge of the complaint that Winebarger refused to speak with Piper on the phone on March 27, 2013. Tr. 55.
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). I find significant animus
towards the protected activity in Winebarger’s phone conversation with
Piper. Prior to filing his complaint,
Winebarger told Piper to keep checking in with him about the possibility of
being recalled. Tr. 34. However, after
filing the February 1, 2013, discrimination complaint, Winebarger told Piper
that he could not speak to him because he filed a discrimination complaint. Tr.
23, 55-56. Winebarger testified that
since Piper filed a complaint against the company, he meant that he could not speak
with Piper without counsel present. Tr. 55.
However, Winebarger did not relay the need for counsel. Tr. 55. Instead, Winebarger simply stated that he
could not speak to Piper. Tr. 55.
Winebarger is the individual at the company responsible for all employment
decisions. Tr. 48. Having refused to
speak to Piper, it was not clear how it would be possible for Piper to be
recalled to work. Tr. 41-42. Therefore,
Piper’s conclusion that he was being blackballed from the mine for bringing a
discrimination complaint was reasonable. Tr. 41-42.
I also find circumstantial evidence of animus in
Winebarger’s decisions not to call Piper in for an interview or recall
him. Piper had more certifications,
training, and experience than the other miners that were called in for
interview and the miners that received offers of reemployment. Tr. 25. Several of these miners were in violation of
one or both of the absentee policies, just like Piper. Tr. 64, 68. However none of the miners called in for
interview or eventually recalled had filed discrimination complaints. Tr.
64. Therefore, I find the failure of the
Respondent to interview and recall Piper to be circumstantial evidence of
animus towards his 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.
In the instant case, the protected activity occurred on
February 1, 2013 when Piper filed his first discrimination complaint. Tr.
23. The hiring freeze was lifted in late
February, and the adverse action of not inviting him for an interview and not
recalling him began at that time. Tr. 57.
I find that this several-week span between the protected activity and
adverse action is sufficiently close in time.
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, I find evidence of disparate treatment in the fact that other miners with lesser qualifications and records of absenteeism who had not filed discrimination complaints were invited for interview and recalled, while Piper was not. Tr. 25, 64, 68.
Conclusion
At
all times relevant to this decision, Complainant was a “miner” for the purpose
of section 105(c) of the Act. The
Discrimination Complaint of March 27, 2013 appears to have merit, and the
Secretary has carried his burden of showing that Piper’s complaint was not
frivolously brought. I find that
temporary reinstatement of Piper is warranted.
No inferences should be drawn regarding the ultimate disposition of the
complaint in any subsequent proceeding on the merits.
ORDER
Based on the above findings, the Secretary=s Application for Temporary Reinstatement is granted. Accordingly, KenAmerican Resources is ORDERED
to provide immediate reinstatement to Darrick Piper, 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.
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 KenAmerican
Resources did not violate Section 105(c) of the Act.
/s/
Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution: (Certified Mail)
Donna E. Sonner, Esq., Office of the Solicitor, US
Department of Labor,
Todd C. Myers, Esq., Rajkovich, Williams, Kilpatrick &
True, PLLC,
Darrick Piper,
[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] The terms
“recall” and “rehire” are used throughout the decision synonymously.
[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
[4] The
findings of fact are based on the record as a whole, including exhibits
admitted, and witness testimony. Any failure to provide detail as to each
witness’s testimony, any admitted exhibit, or other evidence of record is not
to be deemed a failure on my part to have fully considered it. The fact
that some evidence is not discussed does not indicate that it was not
considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000)(administrative law judge is not required to discuss all evidence and
failure to cite specific evidence does not mean it was not considered).
[5] The
Declaration by the Special Investigator is part of GX-2, however it is also
stamped “Exhibit ‘A’” on the bottom.
[6] GX- followed by a number refers to a Government
Exhibit. RX- followed by a number refers
to a Respondent’s Exhibit.
[7] When Piper was laid off, his benefits and
compensation were terminated. Tr. 51.
Piper received unemployment benefits, which terminated on April 9, 2013
after he got another job. Tr. 37. Piper
currently operates a dozer and track hoe for Pollard & Son. Tr. 37. He earns $16 per hour, with no benefits. Tr.
38. Prior to his layoff, Piper was
making at KenAmerican $22.50 per hour, with an additional three to four hours
per day of overtime at $32.25 per hour. Tr. 42-43. He had health insurance, a 401(k), and other
benefits. Tr. 43.
[8] Ronald D.
Winebarger is the director of Human Resources at KenAmerican and he testified
at the hearing. Tr. 48. In his capacity
as director of Human Resources, Winebarger hires and terminates employees,
handles benefits, helps employees understand the handbook, administers
discipline, and generally helps employees with the day-to-day understanding of
the operations of the mine. Tr. 48.
Winebarger has a
master’s degree in business administration from the
Winebarger is both an
underground and surface instructor. Tr. 49.
He is a mine emergency technician and instructor, as well as a certified
CPR instructor. Tr. 49. He is certified
in dust sampling calibration and maintenance and an impoundment inspector and
instructor. Tr. 49.
[9] Winebarger testified that an “occurrence” is defined
as “either one absence by itself or a group of absences due to a single event.”
Tr. 66.
[10] Winebarger testified that he told Piper the
following: “I can’t talk to you right now. You have a discrimination complaint
against us, and I can’t talk to you about this right now.” Tr. 55. Winebarger denied ever saying that Piper
would never be recalled because of his complaint. Tr. 56.
[11] Even under the holding in
Any
miner or applicant for employment or representative of miners who believes that
he has been discharged, interfered with, or otherwise discriminated against by
any person in violation of this subsection may, within 60 days after such violation occurs, file a complaint
with the Secretary alleging such
discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy of the complaint to the
respondent and shall cause such
investigation to be made as he deems appropriate. Such investigation shall commence within 15 days of the Secretary's
receipt of the 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.
30 U.S.C.
815(c)(2)(emphasis added). The
combination of the alternating subject and the use of “such” to continuously
relate back creates a significant ambiguity in the text. As such, deference should be accorded to “an
agency’s interpretation of the statute it is charged with administering when
that interpretation is reasonable.” Energy
West Mining Co., 40 F.3d 457, 460 (D.C. Cir. 1994)(citing Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844
(1984). However, it is understood
and emphasized that the majority opinion in
[12] “Miner” is defined generally in Section 3(g) as “any
individual working in a coal or other mine.” 30 U.S.C. 802(g).
[13] The
purpose of the protection is to encourage miners Ato play
an active part in the enforcement of the [Mine Act]@ recognizing that, Aif
miners are to be encouraged to be active in matters of safety and health, they
must be protected against any possible discrimination which they might suffer
as a result of their participation.@ S. Rep.
No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 623 (1978).
[14] There is some inconsistency over Piper’s rate of
pay. At hearing, Piper testified that he
earned $22.50 per hour in regular pay and $32.25 per hour in overtime pay. Tr.
42-43. In his February 1, 2013
Discrimination Complaint, Piper reported that he earned $21.50 per hour in
regular pay and $33.00 per hour in overtime pay. GX-1. In his March 27, 2013 Discrimination
Complaint, Piper reported that he earned $21.00 per hour in regular pay and
$32.25 per hour in overtime pay. GX-5.
The precise amount is not essential to the holding because each amount
is significantly more than his current rate of pay.
[15] That Piper did find other employment is not a bar to
reinstatement and the income is not relevant in the context of temporary
reinstatement. Sec’y of Labor v. North
Fork Coal Corp., 33 FMSHRC 589, 592 (March 2011).