FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19^th Street, Suite 443

Denver, CO 80202-2500

303-844-3577/FAX 303-844-5268

July 2, 2012

DECISION

Appearances:              Tiffany Myers, Fayetteville, Arkansas, pro se;

Kristin R.B. White, Esq., and Michelle C. Witter, Esq., Jackson Kelly, PLLC, Denver, Colorado, for Respondent.

Before:                        Judge Manning

            This case is before me on a complaint of discrimination brought by Tiffany Myers against Freeport-McMoRan Morenci, Inc., (“Freeport”), under section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3) (the “Mine Act”). Ms. Myers contends that she was discriminated against because she complained about safety issues at the Morenci Mine. An evidentiary hearing was held in Tucson, Arizona. Freeport filed a post-trial brief and Myers filed a post-hearing submission. For the reasons set forth below, the discrimination complaint is dismissed.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND

FINDINGS OF FACT

            Freeport operates a large surface copper mine in Greenlee County, Arizona. Freeport hired Myers as a haul truck driver in July 2010. The haul trucks used at the mine are Caterpillar 793 trucks, which weigh about 260 tons. Each tire on these trucks is about 13 feet in diameter. At the time Myers was working at the mine, Freeport employed between 375 and 400 haul truck drivers. About 74 or more haul trucks were in operation during each shift. The mine operated 24 hours a day on two 12-hour shifts. The operation of the trucks was controlled by dispatchers and supervisors in the command center, also known as “the tower.” Driver fatigue was a concern to Freeport. It believed that fatigue-related haul truck accidents and injuries were a problem.

            In August 2010, Freeport began placing Driver State Sensor devices (“DSS”) in the haul trucks. Based in part on the representations of the manufacturer, Freeport believed that these DSS devices would help prevent fatigue and distraction-related accidents. These devices are intended to monitor driver fatigue and inattention and warn the driver if it detects such events. The DSS system consists of a camera mounted on the dashboard of the truck that centers on the corners of the driver’s eyes and the corners of the driver’s mouth to create a model of that particular driver. The system then monitors the driver’s eyelid closure rates and the direction that the driver is looking. The DSS device monitors three different events: fatigue events, distraction events, and tampering events. If the DSS device detects what may be a fatigue event, an alarm is sounded in the cab of the truck and the driver’s seat vibrates. In addition, the DSS records a video of the driver’s eyes for a short period of time. The video and nine still photos are immediately emailed to the tower. Examples of emails showing the still photos are in Respondent’s Exhibit No. 33. (Tr. 263). The dispatcher then reviews the photos to make sure that the DSS did not record a “false-positive.” If it appears to be a fatigue event, the dispatcher calls the driver on the radio to see how he or she is doing.

            The second type of event is the “distraction event.” Such an event occurs when the driver looks away from the center of the roadway for more than four seconds at a time. When the DSS detects a distraction event, an automated female voice says to the driver, “eyes on path” or “eyes forward.” No alerts are sent to the dispatcher for distraction events. When the DSS devices were first installed in the trucks, they were calibrated differently so that a distraction event was triggered when the driver looked away from the road for a shorter period of time. If the camera is covered or unable to read the driver’s face, the DSS device takes a snapshot of the driver’s head and upper body. The dispatcher is required to address this situation by either radioing the driver or having someone intercept the truck.

            There is no doubt that when the DSS devices were first installed, many of the drivers complained about them. Drivers believed that the devices invaded their privacy and that they were a nuisance because of the number of false-positive alarms. Freeport does not deny that, when the system was first introduced, it had some glitches. It also does not deny that the system will continue to produce false-positives from time to time when the driver is actually not starting to drift off to sleep. As would be expected, there were rumors that the DSS devices continuously digitally recorded the drivers so that the dispatchers could see what they were doing at any given time. There were a number of tampering events soon after the DSS system was installed in which drivers tried to disable the camera in their cab. No disciplinary notices were issued to drivers for tampering during this adjustment phase, but drivers were told that such tampering would not be tolerated in the future. Freeport contends that none of the complaints it received from other drivers alleged that the DSS system created a safety hazard.

            As discussed below, based on the evidence presented at the hearing, I find that once the drivers got used to the DSS system and additional calibrations were made so that alarms and voice commands were not activating as frequently, many of the drivers came to the conclusion that the DSS system helped reduce the number of accidents and close calls. Based on information Freeport gathered concerning accident rates, it made a business decision that the safety benefits of the DSS system outweighed any of its drawbacks.

            Ms. Myers distrusted the DSS system from the time the device was first installed in her truck. The first concerns that she communicated to Freeport and to Dean Croke, an executive at Seeing Eye Machines, the company that installed the devices at the mine, concerned whether the laser lights would hurt the driver’s eyes, the intrusive nature of the devices, the fact that the alarm scared her, and her contention that the system simply did not work correctly. She contended that the system did not set off a fatigue alarm when she actually started to doze off but frequently sounded a fatigue alarm when she was totally alert. Freeport personnel met with Ms. Myers on a number of occasions to discuss the system.

            A. Chronology of Events

            Ms. Myers testified that she started working at the mine in July 2010 driving haulage trucks. She stated that until Freeport installed the DSS system in the trucks she did not have any conflicts with management. In August 2010 she started driving trucks with the DSS system. She noticed that the DSS did not operate “anything like they claimed it works.” (Tr. 16). Myers testified that as soon as Freeport started putting the devices in the trucks she immediately began to have physical symptoms that were “unbearable.” Id. She suffered from migraine headaches, facial numbness, and her “nerves were beyond shot.” (Tr. 16, 95). She testified that she nearly ran over other pieces of equipment because the DSS was distracting to her. She also believes that the DSS monitoring system gave her post-traumatic stress disorder (“PTSD”).

            She described the system as follows:

It’s kind of like having a cattle prod in your truck and every time you blink or turn your head or look at your gages or look at [the truck’s computer screen], the machine goes off and scares the living daylights out of you. You turn your head, you look in your mirrors, anything you do that is required of you as part of your job and the machine goes off. You jump sky-high. It’s unbearable.

(Tr. 17). She testified that if she really was starting to nod off, the system did not activate. It only sounded the fatigue alarm when she was alert and doing her job. (Tr. 17-18). She described the alarm as being six to ten inches from her head and she stated that it “goes off like an air horn.” (Tr. 18). James Hiler, a quality analyst at Freeport, described the alarm as a buzzing sound similar the buzzer on a door of a building when a person gets “buzzed in.” (Tr. 259). Myers also said that “all day long your have to listen to a machine [voice] tell you not to do your job the way you’re doing your job, which is very frustrating. . . .” (Tr. 19).

            Myers testified that the first thing that she did after the DSS devices were installed was email the company that makes them. She was advised to share her concerns with Mark Bartlett, who was the Freeport representative who coordinated the installation of the DSS devices. He worked at the company’s technology center in Tucson. After about three months of email conversations with Bartlett, he advised her to speak with her supervisor at the mine about her problems with the DSS. (Tr. 22). Myers also communicated with Croke at Seeing Eye Machines on many occasions starting in August 2010.

            Myers testified that all of the haul truck drivers began complaining about the DSS system among themselves. (Tr. 25). She testified that she acted as the spokesperson for the drivers when complaints were made about the DSS system. As discussed above, she emailed the drivers’ concerns to Croke and Bartlett. Id. Bartlett told Myers that he would anonymously pass on the concerns of the drivers to mine management. (Ex. C-3).

            Ms. Myers testified that as soon as she started complaining about the DSS, she was harassed by mine management. The harassment was subtle at first and she did not see it as harassment until she thought about it later. For example, Myers testified that Vicki Propes, her dispatcher, stopped answering the radio when Myers tried to call her. (Tr. 30, 55). Myers testified that Propes harassed her in a wide variety of ways although Myers attributed some of this harassment to the fact that Propes picked on female drivers. (See Ex. C-11). Myers believed that she had to abide by every company rule, such as removing jewelry while driving, but other employees were not required to follow company rules. (Tr. 81). She also testified that the company started putting her on trucks that had something wrong with them, whether it be bald tires or trucks that would not dump properly. (Tr. 31). Throughout the hearing, she provided examples of when she was assigned to trucks that she believes were not functioning properly.

            Myers also alleges that management would take action that would cause her to get a late start on her shift so that her production was lower than it should have been. She would be put on a van to take her to her truck that traveled throughout the mine before it reached her truck, for example. (Tr. 63-64). Myers also stated that management would spare out her truck for no reason at all and order her to park for a while. Such instructions reduced her production levels. (Tr. 72). Myers said that when she complained to the mine’s human resources department (“HR”), she was told that there was no evidence that Propes was ignoring her calls or that she was being treated unfairly or differently than other drivers. (Tr. 56). All of these annoyances started to add up in her mind. She documented these events in her notes. (Tr. 60; Exs. C-8, 10, 12-15, 21 ). After three months of this, she called Freeport’s safety hotline as discussed below.

            Ms. Vicki Propes was Myers’ dispatcher between August and the end of October 2010. On October 10, 2010, Propes asked Myers to come to the safety office in the dispatch area so that Propes could show her what the DSS photos look like. (Tr. 381). Propes testified that the DSS registered a number of fatigue alerts with Myers during that shift. Propes testified that when she showed Myers the photos, Myers told her that she was just “screwing with” the DSS. (Tr. 382). In the statement that she signed that evening, Propes said that Myers responded that she was not tired at the time the photos were taken and Myers told her that she was “just testing the machine.” (Ex. C-9). Propes told Myers that she should never tamper with the DSS. Myers denied ever telling Propes or anyone else that she was testing the machine. (Tr. 68). Propes testified that Myers never complained to her about any safety concerns with the DSS. Propes said that this event on October 10 was the only time she discussed the DSS with Myers. (Tr. 383). Propes also denied ignoring calls from Myers on the radio or that she treated Myers differently than the other haul truck drivers.

            Robert Fohr, the mining operations supervisor, testified that trucks are frequently parked for a while for operational reasons and that he does not believe that anyone ever intentionally downed Myer’s truck. (Tr. 355). Dale Lundeen, another dispatcher, testified that it was common for a shovel to go down during a shift and, when that occurs, several trucks may need to be parked for a while until they can be assigned to a different shovel. (Tr. 308-09). Truck assignments and operations are actually determined by a computer rather than individual managers. (Tr. 374).

            Myers testified that on October 15, 2010, as she was driving around a corner, the alarm went off for no reason and she almost ran over the crawler because the alarm scared her. (Tr. 74-75, 231; Ex. C-10 p. N26; Ex. R-38 p. 2). Myers used this incident as an example of how the DSS creates safety hazards for drivers. She said that her DSS constantly set off the alarm for no reason during October.

            On October 27, 2010, Jay Hiler, who was a “quality leader” at the mine, called Myers into his office. Management believed that Myers deliberately covered the camera on that date. Myers testified that a roll of paper towels must have rolled in front of the camera. (Tr. 50). Hiler advised her that covering the DSS camera is considered to be tampering with a safety device, which can result in discipline or termination. (Tr. 277-78). He also attempted to calm her concerns that she was being watched by the camera all the time. He advised her that photos are taken only when the DSS is triggered by a “sleep event.” (Ex. C-4 p. 2). Myers believes that this warning actually occurred because Bartlett told mine management that she was complaining about the DSS system. (Tr. 48-49). She described the Morenci Statement Form signed by Hiler as the beginning of the “paper trail” management kept on her. (Tr. 49; Ex. R-29).

            On October 31, 2010, Myers was transferred from Vicki Propes’s crew to Dale Lundeen’s crew. Myers testified that the harassment continued. (Tr. 94). The DSS continued to register false positive alarms for no apparent reason. Id. On November 4, 2010, Bartlett sent Myers an email telling her that the drivers need to leave the system alone. (Ex. C-6). “Too many people are removing the fuses and disabling the system.” Id.

            Starting in October 2010, Myers started taking contemporaneous notes, while in the cab of her truck, documenting the events of the day. She took hundreds of pages of notes. On the days when she claimed that the DSS activated more frequently, she documented each event separately. In one of her notes dated April 18, 2011, she wrote, “I am trying to drive and document this stupid machine, this is unsafe! It is stressing me out!” (Ex. C-21, p. N188). She was obviously obsessed with the idea that the DSS did not work properly. Myers testified that on November 30, 2010, her face went numb near the end of her shift and she went to the emergency room. (Tr. 95, Ex. C-13 p. N67). She believes that her face went numb from all the stress caused by the DSS device. (Tr. 95).

            On December 9, 2010, Lundeen called her to ask her if the camera in her truck was pointed to the ceiling. From this, Myers concluded that managers were able to look at her with the camera at any time and so she started giving a thumbs up sign whenever the DSS alarmed without reason to let management know that she is okay. (Tr. 96). Myers testified that if she told management that she was “testing” the DSS machine, what she meant was she testing to see how much of her they can see. Id. She testified that if management “can see my whole body, [they] can see my thumbs are up and I’m good to go.” (Tr. 96-97).

            In her performance evaluation dated December 10, 2010, Myers was rated poorly with respect to her production. (Ex. C-7). She received the equivalent of a fully satisfactory rating for the other performance standards. Myers attributes this poor rating to the treatment she received after she complained about the DSS system. She contends that this element of her performance suffered because of all the actions management took “to mess with” her production. (Tr. 58).

            Myers testified that the DSS system only kept her from falling asleep one time during her employment at Freeport. On January 19, 2011, she had only slept three hours the night before and the DSS alarm sounded for a legitimate reason because she was starting to nod off. (Tr. 100; Ex. C-13, p. N102).

            On February 14, 2011, Ms. Myers was suspended with pay by Freeport. Freeport suspended her because its managers believed that she was closing her eyes on purpose to make the DSS activate. It appears that Myers told Dale Lundeen that she “made” the DSS “go off.” (Tr. 105). According to Myers, management interpreted this to mean that she was purposefully making the DSS anti-sleep alarm activate but what she actually meant was that her normal work activities made the alarm sound. Id. She characterized the meeting with management as follows: “[T]hey acted like a bunch of piranhas on this day and my anxiety level was out of this world.” Id. She gave a statement to mine management on a Morenci Statement Form at management’s request. (Ex. C-15). In the statement she reported that the DSS went off repeatedly during her previous shift. She further stated:

Since I have to work with the DSS, I want to know how it works and since the information I was given about the DSS is faulty – I tested the system myself to see how it works.

Conclusion – the system does go off when you close your eyes and are not sleeping. I feel like I have a right to know how the DSS works.

(Ex. C-15). At the hearing, Myers stated that management put words in her mouth and that her statement misinterprets what she meant. (Tr. 106, 251). She testified that all she meant was that the DSS does not function properly because it goes off all the time when drivers are simply trying to do their job.

            Myers was given a written counseling as a result of these events. The counseling record, states in part:

On February 15, 2011, Ms. Myers was operating the 592 haul truck when she admitted to purposefully closing her eyes multiple times when driving on an active haul road. This is in violation of the General Code of Safe Practices; Code of Conduct. . . . Specifically, employees will not engage in distracting activities while operating a company vehicle or piece of equipment.

(Ex. C-16). Myers testified that she never used the words “on purpose” when she was called in by management to explain why there had been so many alarms during that shift. (Tr. 109-11). She complained that normal blinking sets off the alarm. (Tr. 110). She felt intimidated by the entire process and felt she was being held hostage until she signed a statement. (Tr. 111-14). Myers testified that she was suspended with pay for this infraction. (Tr. 113-14). She further stated that whenever her alarm went off and photos were sent to dispatch, the response from the dispatcher was that she must be doing her “eye exercises.” (Tr. 115). It became a joke at the mine.

            Lundeen testified that dispatch received numerous alerts from Myers’ truck during her February 14-15 shift. Gilbert Ruiz, her immediate supervisor, told Myers to park the truck and he went to visit her. (Tr. 321). He reported that she seemed to be fine. A few hours later, Myers had three alarm events in a row. At that point, Amy Pooler picked up Myers and brought her to the dispatch tower. Lundeen testified that as she walked into the office, Myers yelled out “I wasn’t sleeping, I was doing it on purpose.” (Tr. 322). When he tried to discuss it with her, all she could say was that something was wrong with her DSS, it was going off all the time, and she was not sleeping. She told everyone in the area that the DSS was “stupid” and unsafe. Id. Lundeen tried to tell her that she had been having “microsleeps” like drivers often have, that the DSS system was doing what it was supposed to be doing, and that maybe she was too sleepy to be driving. (Tr. 323).

            Myers did not appear to be sleepy and she was taken back to her truck. Lundeen said that, with all the traffic and other obstacles on the haulage roads, Freeport could not allow drivers to close their eyes on purpose while driving. He discussed Myers’ actions with Robert Fohr, the mining operations supervisor. They looked at the photos that were emailed from Myers’ truck and they were particularly concerned that one event showed that her eyes were closed 2.57 seconds while she was driving 22.3 miles per hour. (Tr. 324; Ex. R-33). Lundeen wrote up a statement of these events. (Ex. R-25). Lundeen testified that when he received a DSS alert from another driver sometime later and he called this driver on the radio, the driver replied that he was okay, he was just doing his “eye exercises.” (Tr. 326-27). From that point, many employees, including Lundeen, made jokes about eye exercises.

            Fohr’s testimony about these events was consistent with Lundeen’s testimony. (Tr. 349-51). He told Myers that night that intentionally closing one’s eyes was an unsafe act and it would not be tolerated. (Tr. 350). He also wrote a statement about the events. (Ex. R-36). He testified that a driver may not even be aware that he is experiencing a microsleep event. (Tr. 346). He could not recall any safety complaints concerning the DSS from other drivers and some have told him that the DSS helped keep them awake. (Tr. 345-48).

            Amy Pooler, a mine operations technician, also was present on the evening of February 15. Pooler confirmed that Myers told everyone that she was closing her eyes on purpose. Myers’ statement that she did not like the DSS and that she had been closing her eyes on purpose angered Pooler. (Tr. 404). Pooler often investigated accidents caused by sleepy drivers and had noticed a drop in such incidents after the DSS system was installed. (Tr. 402). Pooler uses pickup trucks to travel around the mine and she believes that the DSS helps ensure her safety because the haul trucks are so large.

            On March 10, 2011, mine management participated in a problem-solving meeting with Myers because Myers did not believe it was fair that she was given a final written counseling as a result of the events of February 15. (Tr. 445). She had been disciplined for closing her eyes on purpose, which was considered to be a safety hazard for distracting activities. (Tr. 445-46). Tammy Lockmiller, an HR generalist, told Myers that, by closing her eyes on purpose, she had been tampering with the DSS equipment. Other employees had been disciplined for tampering with the DSS system. (Tr. 446; Ex. R-48). Ms. Lockmiller participated in the investigation of this incident along with Fohr, Lundeen and Ron McDaniel, another supervisor. They concluded that Myers closed her eyes on purpose. (Tr. 447; Ex. R-44). Myers also said that she gave the thumbs-up sign when she was in the truck to show dispatch that everything was okay. Fohr told her that she should not be driving with her eyes closed and one hand off the steering wheel to signal with her thumb. Id. Because Freeport considered Myers’ behavior to be a very serious safety matter, she was issued a final written counseling. (Tr. 448-49).

            At some point in February 2011, Myers called MSHA to file a hazard complaint about the DSS machines. (Tr. 129-30). The details of this complaint are not clear, but MSHA did not take any enforcement actions. Fohr testified that, when an MSHA inspector came to the mine to investigate a safety complaint about the DSS, no citations were issued and the MSHA investigator told him that he thought the DSS system “was a really good safety device.” (Tr. 352).

            On April 20, 2011, Myers picked up a load from a shovel pit that had been “freshly dug.” (Tr. 116). Myers testified that there were many rocks in the area. As she was driving her truck up a ramp, she got a flat tire. According to Myers, the following day, Tammy Lockmiller from HR came into the lineup room, pulled her out, told her that she was suspended, took her badge and walked her to the mine gate. (Tr. 117).

            Fohr testified that tires on the haul trucks cost between $30,000 and $50,000 each. (Tr. 352-52). As a consequence, Freeport makes every effort to protect them and get as much mileage out of them as possible. All flat tires are investigated, including the flat tire of Myers. (Ex. R-31). The flat tire was caused by a rock. Lockmiller testified that she was put on investigatory leave with pay because she had already been issued a final written counseling. Myers was allowed to return to work without receiving any discipline.

            Myers testified that on May 4, 2011, she pulled her backpack out of her car and felt a “stretch” in her shoulder. (Tr. 123). It was not painful. When she went into the lineup room, she turned her head to the left and felt “unbearable, excruciating pain.” Id. An EMT was brought in to examine her. The EMT asked her if she had been roughly loaded recently and she replied “yes.” (Tr. 124; Ex. C-18). Myers testified that as soon as she said that, Freeport pursued it because you can be disciplined for failing to report that the shovel operator loaded a truck in a rough manner. (Tr. 124-25). It is clear that Myers does not believe that the rough loading caused her neck pain and the company pushed that theory in order to suspend her. Her truck was roughly loaded about six days earlier. She was suspended for two weeks with pay for this incident pending an investigation. (Tr. 124).

            Myers testified that when a driver believes that a shovel operator loaded her truck too roughly, she has to make a quick decision whether she was injured by the incident and whether it should be reported. (Tr. 127). She testified that she determined that she was not hurt so she did not report it, but that she did tell the shovel operator about it and he apologized. A rough load can throw the driver around and cause an injury as well as damage to the truck.

            Lockmiller testified that Myers complained about a hurt neck one morning in lineup and said that it was due to a rough load. (Tr. 450). Lockmiller testified that any type of safety incident that results in an injury must be reported by the employee to management. She was placed on investigatory leave because Myers did not report the injury. Investigatory leave is not considered to be discipline by Freeport but it gives the company the opportunity to investigate the incident. Following the investigation, she came back to work at the mine. (Tr. 451; Ex. R-49).

            Myers testified that she frequently complained to Tiffany Ulibarri and Tammy Lockmiller in HR about the way she was being harassed. (Tr. 62, 130-31). She said that they both indicated that they investigated her complaints but Myers felt that they merely gave her sarcastic responses. Ms. Ulibarri testified that Myers did complain about being harassed but she did not give her any specific examples, except for the jewelry incident. (Tr. 419). Myers also complained to her that the DSS made her nervous. Myers told her about the incident where the DSS alarmed as she was trying to pass a crawler. Ulibarri testified that Myers complained that the system made her nervous but did not tell her that she almost hit the crawler. (Tr. 420). Ulibarri testified that Myers frequently complained about the DSS, but her complaints were of a general nature that did not include any specific safety complaints. She told her that it was “loud and obnoxious,” it made her nervous, it never worked when it was supposed to, and it only worked when she was not falling asleep. (Tr. 421). Starting in March 2011, Myers complained that the DSS was giving her migraine headaches. Ulibarri testified that she told Myers about filing a workers compensation claim. She also had someone from the safety department check out the DSS system on Myers’ truck, but the system was functioning properly in the same manner as on the other trucks. No other drivers made similar complaints to Ulibarri. (Tr. 422). One driver apparently was headed toward a berm when he started falling asleep but the DSS woke the driver before he went over it and he credits that system for saving his life. Id.

            The Rocky Mountain District of MSHA received Myers’ complaint of discrimination on May 4, 2011. (Ex. C-19). In the complaint, under the section of the form entitled Date of Discriminatory Action, Myers wrote: “From Aug. 2010 - April 2011; Feb 16, 2011 Suspended, April 21, 2011 Suspended.” Under Summary of Discriminatory Action she wrote: “I have been suspended, harassed, and retaliated against for bringing up safety concerns.” She attached a four-page typed statement that provided more details. Id. By letter dated June 16, 2011, Myers was advised that MSHA did not believe that Freeport discriminated against her.

            Myers testified that on June 15, 2011, there was a great deal of smoke in the air from forest fires. (Tr. 132). Because she was having difficulty breathing, she asked the safety department for a respirator. She had to leave the mine site and go to a clinic to be fitted for a respirator. Myers testified that Amy Pooler came to her and told her that if she left the property she would be fired. (Tr. 132). Myers went to the clinic with Pooler to get fitted. While she was waiting, she walked down the hall to her own personal doctor whose office was in the same building, to get a shot for her migraine headache. Myers testified that when she tried to return to the mine, she was denied entry. (Tr. 133).

            On cross-examination, Myers agreed that she was put back on a truck when she returned after her request for light duty work was denied. (Tr. 188). Myers noted that the air conditioning was not working on the truck. Although she asked to be switched to a different truck, she did not ask that she be immediately assigned to another truck because of a medical condition. (Tr. 190). She never provided Freeport with a note from her doctor seeking special accommodation on the basis of this condition. .

            Pooler said that she took Myers to the clinic, had her fit-tested, had a respirator made, and returned to the mine. The entire process took about five hours. (Tr. 406). Sometime after Myers resumed driving a haul truck, Pooler received a call from a supervisor, Rene Varela, asking her to meet him and Myers. Varela told Pooler that he had observed Myers backing up her truck at a shovel with door open and she was not wearing a seatbelt. Pooler arrived at the meeting point before Myers and Pooler testified that she could see that the shoulder strap on Myers’ seatbelt was behind her back. (Tr. 407). Pooler said that when she asked Myers whether she was wearing her seatbelt correctly, she replied “no.” (Tr. 408). Pooler then drove Myers to the office where she was given an “investigation with pay” notice.” (Tr. 409). Myers admitted again that she had not been wearing her seatbelt correctly. Failure to use the shoulder strap on the seatbelt in a violation of company policy. Pooler wrote up a statement on these events. (Tr. R-40).

            Myers agreed that Freeport advised her that the reason for her termination was that she drove this truck with the door open without wearing her seat belt properly. (Tr. 181, 185, 189; Ex. R-20, 22). She admitted that she had the door open on her truck, but only when she was waiting in line at the shovel not when she was moving. (Tr. 193). She also admitted that she was not wearing the shoulder strap on the seatbelt.

            Lockmiller testified that Myers was put on investigatory leave following this incident. (Tr. 452). The failure to wear personal protective equipment almost always results in disciplinary action. (Tr. 452-53; Ex. R-47). Although Lockmiller was not directly involved in the investigation of this incident, she prepared the executive summary of the incident. (Tr. 453; Ex. R-50). Based on the company’s investigation into this incident, Myers was discharged from her employment. (Tr. 453-54; Ex. G-21). Other drivers have been discharged for failure to wear a seatbelt. (Ex. R-47).

            At the hearing, Myers repeatedly testified that she never used the words “on purpose” when discussing her eyes being closed. She feels that her actions did not create a safety hazard, she never started to veer off the road or run into anything. (Tr. 473). She feels that she was always in control of her truck and that the only hazard presented was the DSS alarms that scared her.

            In her post-hearing submission as well as in her pre-hearing report, Myers asked that I issue an order granting her relief. Among other remedies, Myers asked that I reinstate her to her job as a haul truck driver, order that Freeport remove any documents from her personnel file that were used against her, order that she be awarded back-pay, order that Freeport draft a letter of recommendation for future employment, order that Freeport pay the cost of her moving expenses from Arizona to Arkansas and back, and order that the DSS machines be removed from the haulage trucks and replaced with Sirius radios.

II. DISCUSSION WITH FURTHER FINDINGS

AND CONCLUSIONS OF 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 “to play an active part in the enforcement of the [Mine] Act” recognizing that, “if 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. 95-181 at 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977 at 623 (1978).

            A miner alleging discrimination under the Mine Act establishes a prima facie case of prohibited discrimination by presenting evidence sufficient to support a conclusion that he engaged in protected activity and suffered adverse action motivated in any part by that activity. Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving that it was also motivated by the miner’s unprotected activity and would have taken the adverse action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

            A. Protected Activity

            Freeport argues that Myers did not engage in protected activity. It contends that her complaints lacked substance and clarity. It also contends that most of Myer’s complaints were idiosyncratic and not shared by other drivers. Myers felt that the DSS machine was annoying and intrusive, but Freeport notes that many safety devices in the mining industry are annoying and intrusive. Freeport also maintains that Myers exaggerated her complaints for the court.

            I find that the vast majority of Myers’ complaints were not about her personal safety or the safety of other miners, but related to her personal dislike of the DSS machine and its effect on her. She believed that it did not work as it was supposed to and that it frequently went off when she was simply trying to do her job. She did testify that on October 15, 2010, the DSS scared her as she was passing another piece of equipment (a crawler) and she believed that, as a consequence, she could have had an accident. She wrote in her personal note: “3:40 EOP trying to pass 62 crawler by upper fuel dock.” (Ex. R-7). In preparation for trial, she wrote a note on that page that said when the DSS machine went off as she was trying to pass the crawler on that day, it “scared me so bad that I took her eyes off the crawler and when I look back at him I am almost running him over which scares me even more.” Id. The note goes on to state she reported the event to Tiffany Ulibarri. Ms. Ulibarri testified that Myers mentioned the event to her and complained about the voice that kept saying “keep your eyes on the path,” as she was trying to pass the crawler, but Ulibarri denied that Myers ever said that it almost caused her to have an accident. (Tr. 419-20). Near misses are required to be reported. I credit Ulibarri’s testimony in this regard and find that Freeport was not aware that Myers believed that the DSS machine caused her to have a near miss with the crawler.

            Many of Myers’s complaints about the DSS directly concerned the effect that the DSS alerts were having on her personally. She complained that it gave her migraine headaches, made her nervous, and that she ended up with PTSD. There is no proof that these problems are directly related to the DSS except for her testimony. Myers said that she was suffering from “massive, massive anxiety” and testified that she told her physician that her anxiety could be related to her recent divorce. (Tr. 90). Myers also testified that her PTSD may be linked with the abusive relationship she had with her ex-husband. (Tr. 161). Myers may well have been more sensitive to the DSS than other truck drivers because of the turmoil in her personal life. Her serious problems with the DSS appear to be rather idiosyncratic to her. Although some of the other truck drivers did not like the DSS, they did not lodge complaints that these devices created serious safety hazards. Other drivers who operated the trucks assigned to Myers did not complain that the DSS activated more frequently than such devices normally do on other trucks. Freeport’s safety department checked out her truck and the DSS to see if there were operational problems, but nothing about her truck was abnormal. The DSS in her truck operated in the same manner as the other haul trucks.

            I do not credit Myers’ testimony that the fatigue alarm was loud like an air horn or that the vibration of the seat was like having a cattle prod in the truck. I find that Myers did not establish that the fatigue alarm and the distraction event voice command had a reasonable potential cause to cause accidents at the mine.

            The Commission and its judges do not have the authority to provide relief to complainants with mental or physical disabilities that prevent them from performing the job duties normally assigned to miners. “It is clearly not the purpose of the Mine Act, but rather worker’s compensation, social security disability and other similar laws to provide loss of income protection” when a miner is unable to perform work normally assigned to miners. Collette v. Boart Longyear Co., 17 FMSHRC 1121, 1126 (July 1995) (ALJ). Idiosyncratic complaints that arise from a miner’s unique physical, emotional, or mental capabilities are generally not protected by the Mine Act. See Price v. Monterey Coal Co., 12 FMSHRC 1501 (Aug. 1990). Although Myers holds a good faith belief that the DSS creates a safety hazard, the evidence establishes that her problems with the DSS are a result of her particular emotional makeup. She did not like the voice telling her what to do or the alarm buzzing when she closed her eyes. More importantly, according to her testimony, the voice and alarm scared her to the extent she felt that she could no longer operate haul trucks in a safe manner. “[M]ining is not the most comfortable of professions.” Price, 12 FMSHRC at 1515. Safety equipment is often uncomfortable and inconvenient. Myers may simply not be well suited to being a haul truck driver. Although at least a few of the other drivers did not particularly care for the DSS system, especially when it was first installed, there has been no showing that the system created a significant safety hazard at the mine. Indeed, the evidence establishes that haul truck accidents decreased after the installation of the DSS system. I credit that evidence.

            It is significant that Myers never sought accommodation for any of her alleged disabilities, including her PTSD and her hypohydrosis. At the hearing, Myers stated that this information was in her medical files in HR and implied that Freeport should have known of her need for accommodation. I find, however, that Myers did not take any steps to seek an accommodation for these alleged conditions. The procedure for bidding for other positions was explained to Ms. Myers by HR. “The Commission does not sit as a super grievance board to judge the industrial merits, fairness, reasonableness, or wisdom of an operator’s employment policies except insofar as those policies may conflict with rights granted under section 105(c) of the Mine Act.” Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990) (internal citations omitted). I find that her complaints were either not related to safety and health or that they were not communicated to mine management as safety concerns. As stated above, Freeport was not aware that the incident with the crawler created a safety hazard that needed to be investigated.

            Given the above, I find that Myers did not establish that she engaged in activity that is protected by the Mine Act. Her complaints were of a personal nature and she did not communicate any specific safety complaints to management. Because Myers represented herself in this case, however, I will assume for purposes of discussion and resolving this case that at least some of the complaints Myers lodged about the DSS machine related directly or indirectly to her personal safety. At the hearing, she appeared to be a person that has a difficult time articulating her concerns.

            B. Adverse Action

                        1. General Considerations.

            Establishing a connection between the protected activity and the adverse actions is often difficult to establish. “Direct evidence of motivation is rarely encountered; more typically, the only available evidence is indirect . . . ‘intent is subjective and in many cases the discrimination can be proven only by use of circumstantial evidence.’” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F. 2d 86 (D.C. Cir 1983). In evaluating whether a complainant has established a causal connection between protected activities and adverse actions, the following factors are generally considered: (1) knowledge of the protected activity; (2) hostility or animus toward the protected activity; (3) coincidence in time between the protected activity and the adverse action; and (4) disparate treatment. Id.

            There was certainly a coincidence in time between the protected activity and the adverse action. Although Myers alleged, in a general way, that other drivers were treated differently than she was after she started raising questions about the DSS devices, the evidence was insufficient to establish disparate treatment. Other haul truck drivers had been disciplined for tampering with the DSS devices. (Ex. R-5 p. 17, R-48). As discussed herein, I credit the testimony of Freeport’s witnesses that Myers was not singled out for discipline because she complained about the DSS machines.

            Freeport certainly had knowledge that Myers did not like the DSS devices, that she considered them to be a nuisance, and that she considered them unsafe because of the number of false-positive fatigue alarms. Her complaints were of a general nature, she said that the DSS fatigue alarms scared her and that the distraction event voice commands were distracting to her. Freeport did not have any knowledge that Myers believed she almost had an accident with the crawler because the voice that said “keep eyes on path” distracted her. Freeport observed that she was having difficulty adjusting to the DSS system and its managers attempted to show her that the system was a safety device meant to prevent accidents. Freeport considered the DSS system to be a safety device that all haul truck drivers would need to adjust to. It did not consider her complaints to be protected activity.

            I find that Freeport did not display hostility or animus toward any demonstrated protected activity, but it did display hostility toward what it considered to be her testing of the DSS. As discussed below, the evidence establishes that Myers frequently closed her eyes for periods of time that were significantly longer than ordinary blinking. The DSS camera only sends an email to the tower with a video and photos if the eyes remain closed for at least two and a half seconds. On the night of February 14, Myers had her eyes closed for long enough periods to send an email at least eight times. The objective evidence establishes that she was either closing her eyes on purpose or she was falling asleep. Because she denied to management that she was falling asleep and she told them that she was testing the machine, Freeport disciplined her. Such discipline did not establish animosity toward any protected activity.

                        2. Specific Allegations

            The first adverse action Myers mentioned concerned harassment by Ms. Propes. I credit the testimony of Propes that she did not single out Myers or try to harass Myers for any reason. Myers testimony that she was harassed by Propes and others by transporting her to her truck late, sparing out her truck, and putting her on haul trucks that had some mechanical problem was not very convincing. All trucks were shut down from time-to-time for production reasons. It was her responsibility to make sure that she got on the correct van to take her to her haulage truck by the most direct route. Freeport investigated this alleged harassment when Myers called the Freeport hotline. (Ex. R-6). She did not mention the DSS in her hotline complaint. (Tr. 199; Ex. R-6). There is also no showing that any adverse action was related in any way to her lower evaluation for production.

            On October 10, 2010, Myers was asked to come to the tower so that she could be shown photos of herself with her eyes closed. The DSS registered quite a few microsleep events during her shift that day. Propes signed a statement that evening in which she stated that Myers told her during this meeting that she was not tired and that the DSS was not working correctly. Propes testified that Myers told her that she was “testing the machine.” (Exs. C-9, R-30). Propes advised Myers that she should not test the machine because it is there for her safety. I credit the testimony of Propes on these events.

            On October 27, 2010, the DSS in Myers’ truck was not working properly because it appeared that the camera had been obscured. Hiler called her to the tower where Myers explained that paper towels must have rolled in front of the camera. Hiler explained that the DSS is a safety device, that she must keep the camera free of obstructions, and that employees can be disciplined for tampering with the DSS including the camera. (Ex. R-29). She was not disciplined for this event. Myers believes that she was given this warning to create a paper trail so that she could be disciplined for complaining about the DSS.

            On February 14, 2011, Myers was suspended from work with pay because management believed that she was closing her eyes on purpose while driving her truck. Lundeen testified that Myers told him that she made the DSS alarm activate. There is a dispute as to what she meant by that statement. Myers argues that all she meant was that her normal work activities made the alarm sound. Freeport management believed that Myers was continuing to “test” the machine. (Exs. R-16, C-15). In her written statement, Myers stated: “I tested the system myself to see how it works.” Id. In a separate paragraph she wrote: “Conclusion – the system does go off when you close your eyes and are not sleeping.” Id. At the hearing, Myers testified that these two statements are not related and that is why she put them in separate paragraphs. (Tr. 109-14). She testified that whenever she closed her eyes, the alarm went off.

            I recognize that people do close their eyes from time to time, and apparently when she did, the fatigue alarm would sound at least some of the time. Nevertheless, management reasonably concluded from her oral remarks and written statements that she was also closing her eyes on purpose to demonstrate that the alarm would sound when someone was not actually on the verge of falling asleep. She would give the thumbs-up sign in the mistaken belief that the dispatcher could see it and know that she was okay. Myers was suspended with pay for these actions and given a final written counseling. (Tr.114; Ex. C-16).

            Myers protested this discipline and a problem-solving meeting was held on March 10, 2011, to discuss it. (Ex. R-42). Management explained that Freeport considered her act of closing her eyes on purpose to be a safety hazard that amounted to tampering with safety equipment. I credit the testimony of Freeport’s witnesses that the company suspended her because management believed that she was purposefully closing her eyes to activate the DSS alarm. Freeport did not reduce the discipline following this meeting.

            Her next suspension occurred after she had a flat tire on April 20, 2011. However, this was a suspension with pay pending an investigation. She returned to work without being disciplined for the flat tire. 

            On May 4, 2011, Myers suffered a pain in her neck. She attributes the pain to lifting her backpack out of her vehicle. She did tell the EMT, however, that her truck had been roughly loaded a few days earlier. She was suspended with pay pending an investigation because rough loading events are required to be reported. Myers was allowed to return to work without any disciplinary action being taken.

            Myers filed her discrimination complaint with MSHA on or about May 4, 2011. She was interviewed by MSHA Special Investigator David B. Funkhouser on May 24. She advised Funkhouser that she wanted all of her previous discipline removed from her records and all of the DSS machines removed from the haul trucks at the mine. (Ex. R-2). Myers described the DSS system to Funkhouser, complained that the alarm is frequently triggered when she is not falling asleep, and she attributed her discipline to her complaints about the DSS. She told the investigator that she is the miner who phoned in the complaint to MSHA about the DSS machines being unsafe. Id. By letter dated June 16, 2011, MSHA determined that no discrimination took place.

            MSHA did not consider the events of June 2011 that resulted in her termination when it investigated her discrimination complaint. Myers testified that she called Inspector Funkhouser to keep him up-to-date on the events that transpired after the May 24 interview including her termination. (Tr. 133-35). It does not appear that MSHA did any further investigation into her discrimination complaint. Myers did not file an amended complaint of discrimination with MSHA following her termination.

            Freeport argues that the Commission does not have jurisdiction to consider the issue of her termination because MSHA never investigated the events surrounding her termination. The scope of MSHA’s investigation establishes the extent of my jurisdiction in this case. Hatfield v. Colquest Energy, 13 FMSHRC 544 (April 1991); Pontiki Coal Co., 19 FMSHRC 1009, 1017 (June 1997). It is clear that Myers did not file an amended complaint with MSHA and MSHA did not conduct an investigation based on her subsequent phone calls to Funkhouser. Thus, I do not have jurisdiction to order relief based on the events that occurred after MSHA’s investigation.

            I find that Myers did not establish that she was disciplined because of any safety concerns she may have expressed about the DSS. Instead, the discipline was given for the reasons described by Freeport. The only discipline involving the DSS was for her admitted act of testing the system. In reaching this conclusion, I assume that the DSS alarm produced some false-positives for Ms. Myers because she was closing her eyes for more than 2.5 seconds at a time. I assume that when she closed her eyes, whether she was in danger of falling asleep or not, the DSS would often set off an alarm. I credit the testimony of Fohr that someone may be entering a microsleep without realizing it. This fact is significant because, in many instances, Myers may have been entering a microsleep condition without realizing it. In the instances that occurred during her night shift February 14-15, 2011, her eyes were closed for 2.5 seconds or longer, in some instances her eyes were closed for more than 3.5 seconds, and one instance her eyes were closed for 4.5 seconds. (Ex. R-33). The DSS is designed to keep drivers awake and, in performing this function, it is likely to be irradiating to the driver if he or she is sleepy. I credit the testimony of Freeport’s witnesses that the alarm and the computer voice were not so loud that it should unnecessarily scare someone. I note, however, if a driver is beginning to fall asleep at 1:00 a.m. and the alarm goes off, it may well be jarring to the driver because it is waking him up. There was no showing that being awakened or startled by the DSS fatigue alarm or the distraction command voice creates a safety hazard. Falling asleep while driving a haul truck certainly creates a significant safety hazard.

III. ORDER

            For the reasons set forth above, it is hereby ORDERED that Complainant’s discrimination claim be DISMISSED.

                                                                        /s/ Richard W. Manning

                                                                        Richard W. Manning

                                                                        Administrative Law Judge

Distribution:

Tiffany Myers, 2816 W. Quail Drive, Fayetteville, AR 72704-5364

Kristin R.B. White, Esq., and Michelle C. Witter, Esq., Jackson Kelly, 1099 18^th Street, Suite 2150, Denver, CO 80202-1958

RWM