FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
Office of Administrative
Law Judges
Office:
(303) 844-5266/Fax: (303) 844-5268
July 11, 2012
|
JEFF SCOTT, v. |
: : : : : : : : : : : |
DISCRIMINATION PROCEEDING
Docket No. WEST 2012-79-DM WE MD 11-05 Docket No. WEST 2011-269-D WE MD 10-17 Mine: Gold Quarry - South Area Mine ID 26-00500 |
Appearances: Andrew L. Rempfer, Larson Welsh, Las Vegas, Nevada on behalf of the Complainant, Jeff Scott;
Laura Beverage, Karen
Johnston, Robin Repass, Jackson Kelly, PLLC,
Before: Judge Miller
DECISION
This case is
before me on a Complaint of Discrimination
brought by Jeff Scott against Newmont USA Limited, pursuant to section 105(c)
of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. §
815(c). The parties presented testimony and documentary evidence at a hearing
commencing on April 11, 2012 in
I.
BACKGROUND
Newmont USA Limited (“Newmont”),
the Respondent, operates the Gold Quarry Mine (the “mine”) near
The parties have agreed upon the following stipulations:
1.
Respondent
is an operator within the meaning of the Federal Mine Safety and Health Act of
1977 (the “Mine Act”), 30 U.S.C. §§ 801 et seq.
2.
Newmont
USA Limited; South Area Mine, Mine I.D. No. 26-00500, is subject to the
jurisdiction of the Mine Act.
3. At all times relevant to this proceeding, Complainant, Jeff Scott, was a “miner” within the meaning of §§ 3(g) and 105(c) of the Mine Act, 30 U.S.C. §§ 802(g) and 815(c).
4. The Administrative Law Judge has jurisdiction in this matter to decide claims alleging protected activity under the Mine Act, pursuant to § 105(c)(3) of the Mine Act.
5. Jeff Scott began working at Newmont on September 25, 2006, as a haul truck trainee-operator at the South Area Mine. Scott was eventually promoted to a haul truck driver. Scott’s last position was equivalent to a “Technician 3,” entitled as of the 2010-2013 Collective Bargaining Agreement, Appendix A, of $25.54 per hour, plus all other health, life, dental, perquisites and other benefits available to Technician 3-Level employees, in Year 1 of the Agreement.
6. Scott was a member of Operating Engineers Local Union No. 3.
7. Newmont and Local No. 3 are parties to a “Collective Bargaining Agreement.” The parties hereby stipulate the CBA for the years 2010-2013 shall apply to this dispute.
8. Newmont has a progressive disciplinary policy.
9. On October 23, 2009, Scott submitted a “Talking Safety Feedback #468.” Suggesting Newmont institute a “zero tolerance policy for operating equipment with coolant leaks.” Newmont approved this Talking Safety Suggestion.
10. On November 13, 2009, Scott submitted “Talking Safety Feedback #515” and suggested “[Newmont] ensure that we have an effective solution to cleaning the dust out of 789 haul truck cabs. I recommend Shop Vacs (1 Gallon Size), Inverters and Hepa Filters.” Newmont approved this Talking Safety Suggestion.
11. On November 14, 2009, Scott submitted a “Talking Safety” suggesting a change from the “after-market convex blind-side mirrors with the flat, glass mirrors that the trucks originally came with . . .” Newmont approved this Talking Safety Suggestion.
12. On January 18, 2010, Scott received a “written warning for excessive absenteeism.” Scott previously received a written warning for being AWOL on February 8, 2007, and a recorded verbal warning for excessive absenteeism on July 16, 2008.
13. On February 17, 2010, Scott witnessed the Operator of a Hitachi Hydraulic Excavator (“Shovel”) strike the bed of a haul truck driver’s truck with the shovel bucket one time.
14. Regarding the incident referenced in paragraph 13, above, the parties stipulate Scott reported this incident to his Shift Foreman, Randy Hutsell. Scott was issued a written warning for using his cellular phone to report the incident. That written warning was later removed from Scott’s file after further investigation into the matter.
15. On February 17, 2010, Scott was reassigned to the South Area.
16. On or about March 3, 2010, Jeff Scott filed a discrimination complaint with MSHA pursuant to § 105(c) of the Mine Act, MSHA Case No. WE-MD 10-06.
17. On March 9, 2010, Scott was seen by Shift Foreman Todd Fowers failing to yield his haul truck to Fowers’ light vehicle on two separate occasions.
18. On March 10, 2010, Scott received a “written warning” for (allegedly) “fail[ing] to yield to posted yield signs on two separate occasions during the shift, creating an unsafe working environment for others working in the area
19. On March 15, 2010, Scott had a private meeting with Todd Fowers. During this meeting, Scott requested the following day off, March 16, 2010, so he could meet with the MSHA special investigator.
20. On March 23, 2010, Scott nominated Fowers for an employee recognition award for turning the negative reinforcement of discipline (referenced in paragraph 19 above) into a positive event, by putting safety ahead of production. As a result, Fowers received a $100 Spot Recognition Award.
21. On June 8, 2010, Scott submitted “Talking Safety Feedback #648” and suggested “placing a computer with the necessary controls in the time shack line-out room. When operators are waiting for equipment they could utilize the computers to look-up STPs, SOPs, and training clips from our training department and from Caterpillar.” Newmont denied this Talking Safety Suggestion and opted for placement of hard copies of STPs in the line-out rooms.
22. On June 30, 2010, Scott received a write up for “inadequate job performance,” which included a one-day disciplinary layoff for (allegedly) parking his truck too close to a shovel, which caused the shovel to strike Scott’s truck. Both parties concede the shovel hit Scott’s truck.
23. On July 1, 2010, Scott submitted a “Talking Safety Feedback #679” suggesting Newmont make the “12 volt charger/cigarette lighter components a higher priority to fix on all our equipment” for emergency-related purposes. Newmont approved this Talking Safety Suggestion.
24. On July 1, 2010, Scott submitted a “Talking Safety Feedback #680” suggesting Newmont “get some kind of dust suppression for the South Area Gyro. The Gyro is so old and has been hit so many times that is seems nearly impossible that it could be sealed. There are times when dumping a dry load of material into the Gyro after which you cannot even see the Gyro through the cloud of dust. This cannot be good for the Gyro operator; with the increasing clarity of ubiquitous internet satellite image services, it will eventually harm the company as well.” Newmont approved this Talking Safety Suggestion.
25. On August 25, 2010, Scott submitted a “Talking Safety Feedback #735” seeking a “computer in mine ops line-out room that is completely offline (not even connected to the intranet) for training videos, SOPs [and] other relevant to safe, efficient production. [Scott] demonstrated a training video [he] downloaded from cat.com at the last training safety mtg. [he] attended and was told to file another suggestion. I volunteer to load content (approved by mgmt.) [and] maintain this computer . . . on my own if necessary.” Newmont approved this Talking Safety Suggestion.
26. On August 25, 2010, Scott submitted a “Talking Safety Feedback #736” requesting “[Newmont] set a minimum width for the roads we drive haul trucks on . . . [and] for narrow spots we can’t fix could we place appropriate signage [and] make sure we have enough support equipment [and] gravel during the winter months.” Newmont approved this Talking Safety Suggestion.
27. On August 25, 2010, Scott submitted a “Talking Safety Feedback #737” suggesting “[Newmont] post a list of equipment failures/conditions in mine control that would require a piece of equipment to be automatically downed . . . we need a list, readily available to mine control that is written in stone so these situations don’t erode into common practice.” Newmont approved this Talking Safety Suggestion.
28. On August 31, 2010, Scott reported to Newmont employees were allegedly verbally harassed and subject to a hostile work environment.
29. On August 31, 2010, MSHA determined that no discrimination occurred under § 105(c) of the Mine Act as alleged in MSHA Case No. WE-MD 10-06.
30. On September 8, 2010, Jeff Scott filed a discrimination complaint with MSHA pursuant to § 105(c) of the Mine Act, MSHA Case No. WE-MD 10-17.
31. On October 15, 2010, Scott met with Dave Sirotek and Todd Fowers to discuss alleged incidents regarding Scott’s work performance. Scott was then suspended pending investigation into his performance. Fowers testified he had already prepared a written disciplinary warning for Scott that day.
32. Jeff Scott was terminated from the position of haul truck operator at Newmont, effective October 21, 2010.
33. On or about November 8, 2010, MSHA determined that no discrimination occurred under § 105(c) of the Mine Act as alleged in MSHA Case No. WE-MD 10-17.
34. On or about February 11, 2011, Jeff Scott filed a discrimination complaint with MSHA pursuant to § 105(c) of the Mine Act, MSHA Case No. WE-MD 11-05.
35. On or about September 13, 2011, MSHA determined that no discrimination occurred under § 105(c) of the Mine Act as alleged in MSHA Case No. WE-MD 11-05.
36. On or about September 16, 2011, Jeff Scott filed a discrimination complaint with MSHA pursuant to § 105(c) of the Mine Act, MSHA Case No. WE-MD 11-21.
37. On or about December 2, 2011, MSHA determined that no discrimination occurred under § 105(c) of the Mine Act as alleged in MSHA Case No. WE-MD 11-21.
38. Jeff Scott did not request reimbursement for any MSHA-related or mine rescue-related training during the period of his temporary reinstatement.
II. FINDINGS OF FACT
The findings of fact are based on the record as a whole and my careful observation of the witnesses during their testimony. In resolving any conflicts in testimony, I have taken into consideration the interests of the witnesses, corroboration, or lack thereof, and consistencies or inconsistencies, in each witness= testimony and between the testimonies of witnesses. In evaluating the testimony of each witness, I have relied on his or her demeanor. Any failure to provide detail on each witness=s testimony 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).
Mr. Scott and Newmont’s witnesses testified at length regarding the events leading up to Scott’s termination. The critical events discussed at hearing are summarized below in chronological order.
August 2009 – November 2009
Scott testified that he sent an MSHA fatalgram regarding highwall conditions to Newmont mine superintendent Randy Walund on August 17, 2009. (Tr. 23). The following day, on August 18, Scott had an angry exchange of words with Wade Stark, the shovel operator, over the radio. During cross-examination, Scott testified that Stark had called him an “idiot” because he backed his truck up after being parked at the loader and Scott responded by calling Stark a “moron.” (Tr. 123-124). Soon thereafter, Wade struck Scott’s truck with the shovel. (Tr. 25, 124). Scott raised the issue with his supervisor and refused to work with Stark the following day. When Scott was assigned to load with Stark, he felt it unsafe and, therefore, without seeking permission, changed his work assignment and loaded with another shovel operator. (Tr. 34). Subsequently, Scott received a written reprimand from his supervisor, Hutsell, in August, 2009. (Tr. 360). Scott believed that little, if anything, was done to investigate the incident involving Stark and so he sent emails to various Newmont management personnel expressing his concern. (Tr. 40-41). Scott had a meeting with his supervisor and others at the time the reprimand was issued and was warned not to go outside of his chain of command when seeking action. (Tr. 44). On cross-examination, Scott agreed that he was not aware of any other worker at the mine who had a problem with Stark or if Stark had been disciplined as a result of the incident. (Tr. 125).
In October, 2009, and twice in November, 2009, Scott submitted “Talking Safety” feedback forms to the safety committee. All three were accepted by the mine. “Talking Safety” is an employee operated program at Newmont, in place since 2008, which affords miners the opportunity to present safety suggestions to the mine. Miners submit a “Talking Safety” form to the safety committee for review and recommendation. Normally the forms are not passed through a foreman or supervisor, but supervisors do have the authority to view the submitted forms. Many suggestions are made each month by any number of employees and, for the most part, are kept confidential. Throughout his career, Scott submitted many suggestions, many of which were implemented at the mine.
February 2010
On Feb 17, 2010, Scott, via cell phone, reported hazardous machinery operation by fellow employees to a mine supervisor. (Tr. 63). Scott had observed Stark hit a haul truck driven by Paul Linenger with the shovel that Stark was operating. (Tr. 62). Linenger did not find Stark to be at fault and made his own report about the incident. (Tr. 392). He did not see a reason for Scott’s involvement.
Scott stated that immediately following this report, he was written up by his supervisor for violating the mine’s cell phone policy. The write up was subsequently removed from his file and, at about the same time, Scott was transferred to the South Area of the mine and provided with a new supervisor, Todd Fowers. (Tr. 65). Fowers recalls that he told Scott several weeks before the move to the South Area, that Scott was being reassigned. Fowers documented that conversation along with Scott’s comment that Scott had a “bias” toward Stark. (Tr.342). Fowers understood that Scott believed Stark to be violent and in need of counseling, but Fowers received no other complaints about Stark. Fowers explained that Scott was transferred to the South Area, as many miners have been, because that area is the larger section and it was in need of EMTs. As a result of the move, Scott lost no pay, worked the same shift, experienced no change in status, but was placed under the supervision of Fowers.
Scott stated that he suffered emotional distress as a result of the discipline he received for using his cell phone and, because of such; he called in sick to work on February 18th. (Tr.71). Newmont issued disciplinary notices to him for the unexcused absence on Feb 18th. (Tr.72). These incidents formed the basis of Scott’s initial complaint to MSHA, filed as MSHA Case No. WE-MD 10-17. (Tr.67). Scott argued that he did not violate the cell phone policy and eventually, the reprimand was removed from his file. (Tr.77). Moreover, in Scott’s view, the unexcused absence notice was not appropriate since he had called in as required, and left a message that he was not able to sleep and wasn’t feeling well. (Tr.71, 91). When questioned by his supervisor, Scott failed to mention that he was suffering from stress and that he had received treatment through the Newmont employee assistance program. (Tr.152). Much later, Scott provided information regarding his stress, depression and anxiety when he sought and was granted leave pursuant to the Family Medical Leave Act. (Tr.153).
Neither reprimand was used as a basis for Scott’s termination, but Scott suggested that the process of permanently removing him from his position began with these actions. Scott testified that Newmont’s progressive discipline policy was used, in his view, as a tool to systematically remove an employee who was not wanted at the mine. (Tr. 90).
March 2010
Scott received the next disciplinary action for failure to yield to another vehicle on March 10, 2010. (Tr. 80). On two occasions during his shift, Scott observed Fowers in a pickup truck come to an intersection as Scott was approaching in a haul truck. (Tr. 78-79). On the first occasion, Scott saw that Fowers stopped, so Scott drove through, believing that haul trucks had the right of way in all instances. (Tr. 80). However, a few hours later, as Scott approached the yield sign, he described that he did not see the pickup until it was too late to stop and, again, he was under the impression that the company policy was that haul trucks, as large equipment, had the right of way. (Tr. 79-80).
Fowers’ testified that Scott’s truck was traveling too fast and, in Fowers’ view, the driver should be driving in such a manner that he can stop if necessary. Fowers contacted the driver after observing him fail to yield at the sign in the first instance. He was not aware that Scott was the driver until he made contact through use of the number of the truck. (Tr. 346). Fowers instructed Scott to yield at the signs as posted and believed this communication was understood by Scott. (Tr. 346). However, later in the shift, as Fowers drove out to evaluate the road conditions after it began to snow, he again observed Scott fail to yield at a sign. Scott asserts that the roads were wet and slick, making it difficult for him to stop. However, Fowers remembers that his purpose was to check road conditions, and he did not find them to be wet and slick at the time he observed Scott disregard the yield sign for the second time. (Tr. 349). The second time Fowers observed the activity, he again told Scott on the radio to follow the signs and yield as required. (Tr. 348).
Haul truck operator Paul Linenger testified that, as a haul truck driver, he understands that he must yield to oncoming traffic if there is a posted sign. (Tr. 396). If there is no sign, he explained, then the haul truck has the right of way.
The incident at the yield sign occurred during the night shift on March 10, 2010. On March 15, Scott approached Fowers to ask for the following day off so that he could meet with an MSHA investigator. (Tr. 257-258). There is some dispute as to what was said, but Fowers remembers that he told Scott he could have the day off. Scott recalls that Fowers was not happy about Scott’s impending meeting. On March 18, 2010, when Scott returned to work, he was issued a disciplinary action for failing to yield at the posted sign. (Tr. 80); Resp. Ex. L. Fowers asserts that he intended to issue the reprimand prior to Scott seeking a day off to speak with an MSHA investigator.
On March 23, 2010, Scott nominated Fowers for an employee recognition award for turning the negative reinforcement of discipline into a positive event, by putting safety ahead of production. As a result, Fowers received a $100 Spot Recognition Award. Jt. Stip. 20.
June 2010
On June 8, 2010, Scott suggested, through the “Talking Safety” program, that a computer be added to the shack line-out room, but the suggestion was denied. On June 19, 2010 Scott parked his haul truck at an angle to the shovel operated by Ken Schultz. He thought he might be close but Schultz did not ask him to move. (Tr. 93). Scott stated that once he was nearly loaded, the shovel counterweight grazed his truck, resulting in minor damage to both the shovel and truck. (Tr. 94). As a result, Newmont issued Scott a reprimand for parking too close to the shovel. (Tr. 96). Scott believed that he did not park too close and that the contact resulted from the shovel sliding toward him during the loading operation. (Tr. 97). During cross examination Scott confirmed that, after the contact, he said something over the radio to the effect of “I just hit a big orange thing” and chuckled. (Tr. 167-168).
Kent Schultz, a Newmont shovel operator, credibly testified that he observed Scott back a little too close to the shovel but, at least initially, he believed he could safely load Scott’s truck. (Tr. 414). Schultz stated that his shovel was not “ratholed” as alleged by Scott, and there was no reason for Scott to have positioned the truck the way he did. Schultz explained the contact by stating that Scott’s truck had settled at an angle due to its position and had leaned over into the shovel’s swing radius. (Tr. 414). Schultz testified that, after being loaded, Scott contacted him on the radio and told him that he “got too close to [the] shovel and . . . had made contact.” (Tr. 419). Schultz testified that he has never known the several million pound shovel to slide as Scott claimed. (Tr. 420).
Newmont HR officer Mike Woodland investigated the truck/shovel contact incident and upheld the reprimand based in part on a determination made by the safety department. (Tr. 461). Woodland also explained that, during the course of his investigation, an equipment manufacturer’s representative informed him that it was rare for a shovel of that size to slide. (Tr. 464). Newmont foreman Tim Wright also testified that he heard Scott on the radio after the contact say “I was too close to the shovel and I just got you.” (Tr. 570). On June 20, 2010, Scott was given one day off as discipline for the incident.
July 2010
On July 1, 2010, Scott submitted another “Talking Safety” suggestion about repairing the chargers in the haul trucks. The suggestion was approved.
August/September 2010
On August 25, 2010, Scott presented three separate “Talking Safety” suggestions to the mine. The first one concerned a request for a computer in the line-out shack and the second requested setting a minimum width for the haul roads. Both were accepted by the safety committee. The third suggestion concerned the need for a list of standard items that would be used to determine if a haul truck should be put out of service. The suggestion was also accepted. Stips. 25, 26 and 27. On August 16, 2010, Scott sent an email to Mike Woodland in the mine’s HR department and mine superintendent Jason Hill, in which he provided information about the “Mine Star” system and listed phone numbers that Hill might want to call. (Tr. 647); Resp. Ex. LL. Scott also mentioned the incident with the shovel calling it retaliation. Scott mentioned Todd Fowers, Hill’s career, and provided information from an HR website. On August 26, 2010, Scott sent an email to Hill regarding dust in equipment. Hill forwarded the email to maintenance, asking them to check the trucks, and a sent a copy to Fowers, directing him to inform Scott that the trucks would be inspected and repaired. Resp. Ex. MM. A more troubling email from Scott to Jason Hill and a number of management personnel, including Sirotek and Fowers, Resp. Ex. HH, was titled “yesterday’s dog and pony show.” Scott complained that a meeting about the shovel incident was stacked against him and that he was not given a fair opportunity to present his position. In the two-page email, Scott indicated that he was going to file two grievances with the union. He also threatened to contact the higher management in Denver, and work his “way back down the ladder.” He told Hill that, after a time, he would file another complaint with MSHA and, after that, a complaint with the EEOC if he was not heard and not satisfied with the results of his complaints. The tone of the email is one of anger and threats. Hill could not explain why Scott continually sent him emails, but he followed up on complaints by forwarding the message to the correct person and instructing his supervisors to look into the allegations. (Tr. 648).
On August 26, 2010, Scott also sent an email to Mike Woodland detailing the hostile work environment at the mine. Scott then met with two representatives from HR, Woodland and Vasquez. (Tr. 105). They discussed the complaints Scott made, including his accusations about being treated unfairly and the retaliation against him, as well as the treatment of another employee, Phillip Medina. (Tr. 106). Vasquez met with Scott a second time and spent an additional three hours with him and then followed up and conducted interviews. (Tr. 106); Scott Exs. 25A, 25B and 25C. One subject of Scott’s email, Phillip Medina, was interviewed and informed HR that he had already spoken to Fowers and the matter had been resolved. (Tr. 468-469). As a result of the investigation, Vasquez found no merit to the allegations raised by Scott. (Tr. 586).
October 2010
The final incidents prior to Newmont’s termination of Scott occurred on October 10, 2010. Scott explained that, on that date, he parked his truck at 7:06, cleaned it out and quit at 7:10. (Tr. 359). Although the shift ends at 7:30, miners can begin shutting down at 7:10 in order to switch with the oncoming shift. (Tr. 192). Scott testified that he shut down just before 7:10 because an average haul cycle took over 20 minutes and he did not have time to complete another cycle before quitting time. (Tr. 111).
Fowers testified that, after Scott was warned at the morning safety meeting not to quit early, he observed Scott park his haul truck in the line of trucks at the end of the October 10th shift. (Tr. 356). On this particular shift, Fowers was in the “Mine Star” office talking to the operators when he observed, via camera, two vehicles, and then a third, pull into position to quit before 7:10. (Tr. 355). The first two vehicles rolled in shortly after 7:00 and Scott followed a few minutes later. (Tr. 355). Fowers got on the radio and told the three equipment operators, including the haul truck operator, who turned out to be Scott, to return to work. (Tr. 355-356). The two other vehicles who had pulled in ahead of Scott returned to work, but Scott remained parked. Fowers continued to call Scott on the radio and, via the camera in the office, could see Scott in his truck. However, Scott refused to answer the radio call on each of the three occasions. (Tr. 356). Although Scott argues that he was out of his truck and cleaning for the last few minutes, Fowers did not observe him get out of the truck and did not observe him engaged in cleaning activities. (Tr. 357).
Tim Wright was in the office with Fowers and supported the description of the incident provided by Fowers. Wright repeatedly reminded the crew that they could not quit until after 7:10 and he made a special point of reminding the drivers at the beginning of that shift on October 10th. (Tr. 571). A number of times, Wright has observed truck drivers pull in early and he has reminded them to return to work, even if it is for only a few minutes. (Tr. 571). He heard Fowers tell the drivers to move on and observed Scott park his truck and ignore the radio calls of Fowers. (Tr. 573:12-16).
On the same date, at the end of the shift, Fowers was approached by Cheney, who was visibly upset and who had been working with Scott in the pit that evening. Cheney, a colorful witness, asked Fowers to please instruct Scott to cooperate with him when working together in the pit. (Tr. 362). Cheney explained that on numerous occasions during the night, he had explained to Scott, the correct location for dumping, yet Scott continued to dump in other locations.[1] Cheney testified that in his 23 years working at Newmont, he has not complained about a haul truck driver, but it was his view that Scott was purposefully dumping in the wrong area when Cheney was not looking, thereby making Cheney’s job more difficult. (Tr. 627). Linenger confirmed that Cheney was obviously upset after working with Scott based upon his radio communication. (Tr. 399). Wright also observed Walter Cheney approach Fowers after the shift and confirmed that Chaney was upset. (Tr. 573-574).
Scott testified that he was dumping at the feed stockpile with Cheney that shift, and that he was unfamiliar with the dumping operations at that location. (Tr. 114). According to Scott, Cheney, the loader operator, mentioned to Scott near the end of the shift that there had been some problems related to where Scott was dumping that night. (Tr. 114). Scott asserts that he dumped as he should have that night, he was never warned that there was a problem, and he was just “filling in the holes” to accommodate the loader. (Tr. 113).
Scott explained that, as a result of shutting down before 7:10 and dumping in the wrong location, he was called into a due diligence meeting with Newmont management and a union representative on October 15, 2010. Stip. 31. Scott asserts that Newmont had determined to issue reprimands for dumping in the wrong location and quitting early during the October 10th shift prior to questioning him and calling him into the meeting. (Tr. 117). Scott also asserts that the disciplinary meeting was called without proper notice. Stip. 31. Scott testified that he had just met with the MSHA investigator the day before and, given that the mine had no documentation to demonstrate that he had quit early or dumped in the wrong location, there was no point to the meeting. (Tr. 117). Scott refused to respond to any allegations made at the meeting and was suspended pending investigation. (Tr. 117, 365). It was Scott’s impression that the entire meeting was stacked against him. (Tr. 117).
Scott stated that Newmont terminated his employment on October 21st for the stated reasons of dumping in the wrong location, quitting early, and failing to cooperate at the due diligence meeting. (Tr. 119). Scott filed a grievance with the union regarding the actions and after a meeting with the board of adjustment, consisting of two management persons and two union persons, it was determined that Scott would be given the opportunity to resign, instead of being fired. (Tr. 181). Scott refused. (Tr. 181).
Fowers testified at length and agrees that Scott frequently raised issues of safety but he asserts that he did not make the decision to terminate Scott. He was, however, involved in meetings with the Human Resources Department and mine management about Scott’s situation. Mike Woodland worked in the Newmont HR office during the time Scott was issued disciplinary actions and he was part of the discussion when the decision was made to terminate Scott. Woodland, had reviewed the disciplinary action that Scott received for using his cell phone in February, 2010 and determined that Scott did not violate Newmont’s policy as alleged and had the action removed from Scott’s file. (Tr. 440). Woodland did agree, however, with Fowers that in March, 2010 Scott was correctly warned about not yielding in posted areas. (Tr.445). Woodland was also present when Scott was asked to explain to Fowers and Sirotek, the mine manager, his view of dumping in the wrong place with Cheney and taking his haul truck out of service early. A union rep was present, yet Scott became angry and refused to discuss the matter. (Tr. 473). Woodland indicated that no one person made a decision to terminate Scott and, instead, it was a collective consensus decision by Woodland, David Sirotek, Debbie Paparich, the Newmont HR manager for Nevada, Jason Hill, mine superintendent, and Fowers. (Tr. 554-555).
Fowers described that he believed Scott to be a problem employee because he was constantly going over his head with complaints. (Tr. 579). Fowers was unhappy with Scott for sending numerous emails directly to the mine manager and mine supervisor instead of giving Fowers the opportunity to address Scott’s concerns. He admitted that Scott’s complaints sometimes involved safety issues. If they were justified, Fowers said, they were addressed. (Tr. 579).
Jason Hill, the mine superintendent, explained that before taking any action against Scott, he carefully examined the entire record to be certain the proper procedures and policy were followed. (Tr. 662). Sirotek, the mine manager, agreed that the progressive discipline policy had been followed in Scott’s case and confirmed that other employees had been terminated at Newmont based upon the same policy. Sirotek, while general manager, followed the discipline procedure for Glen Tervort, who was involved in an accident that injured three employees. (Tr. 678). He was not terminated, but the documents at Scott Ex. 39 show that he was suspended for three days by his supervisor, who coincidentally was his uncle. (Tr. 678:). Bobby Martinez had several accidents and was terminated through the progressive discipline policy. (Tr. 680). Martinez was initially given one day off for equipment damage, then, in November, 2008 after a second accident, he was given three days off. Later, in December, Martinez was given five days off for hitting a berm, and was subsequently terminated. (Tr. 681).
III. ANALYSIS
Section 105(c)(1) of the Act, 30 U.S.C. § 815(c)(1), provides that, a miner cannot be discharged, discriminated against, or interfered with in the exercise of his statutory rights because: (1) he “has filed or made a complaint under or related to this Act, including a complaint … of an alleged danger or safety or health violation;” (2) he “is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101;” (3) he “has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding;” or (4) he has exercised “on behalf of himself or others … any statutory right afforded by this Act.”
In order to establish a prima facie case of discrimination under section 105(c)(1), a complaining miner must show: (1) That he engaged in protected activity; and (2) That the adverse action he complains of was motivated at least partially by that activity. Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981); Secretary 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.3d 1211 .
The 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 operator cannot rebut the prima facie case in this manner, it, nevertheless, may defend affirmatively 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. Id. at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
Factors to be considered in
assessing whether a prima facie case exists include the operator’s knowledge of
the protected activity, hostility or “animus” towards the protected activity,
timing of the adverse action in relation to the protected activity, and
disparate treatment. Secretary of Labor on behalf of Chacon v.
Phelps Dodge Corporation, 2 FMSHRC 2508 (Nov. 1981).
A. Protected Activities and Adverse
Actions
In order to sustain his
discrimination complaint, Scott must first demonstrate that he has engaged in
an activity or activities that are protected by Section 105(c) of the Mine Act.
The record before me clearly establishes that Scott has engaged in protected
activity which include the filing of 105(c) complaints with MSHA on March 3,
2010 and again in October, 2010. Rickey
Joe Strattis v. ICG Beckley, LLC, 32 FMSHRC 614, 616 (June 2010) (ALJ) (holding that filing a 105(c)
discrimination complaint is a protected activity for which operators are barred
from retaliating against).
Scott testified that he also engaged in protected activities when he submitted “Talking Safety” requests and sent emails to mine management about unsafe conditions. All such activities were known to the mine and in most instances Scott advised Newmont before he filed a discrimination complaint with MSHA and before meeting with investigators. Beginning in February, 2009, Scott complained about the unsafe activities of the shovel operator, Stark, and the following day refused to load with Stark because Scott believed him to be an unsafe equipment operator. As a result, Scott was reprimanded for changing the shovel operator assignment without seeking foreman approval. Following that incident, Scott provided a number of safety suggestions through the “Talking Safety” program in 2009. Jt. Stip. 9, 10 and 11. Scott continued to make safety suggestions through that program in 2010, primarily in June, July and August. Jt. Stip. 21, 23, 24, 25, 26, 27. Scott filed two discrimination complaints with MSHA prior to his termination and in each instance he made the company aware of the complaint. Finally, the record demonstrates that Scott sent emails to management and supervisors about various issues that were safety related, including exposure to dust by haul truck drivers.
Scott has also shown that he was subject to a number of adverse actions during his employment with Newmont and, according to Scott, these adverse actions were a direct result of the protected activities. I find that moving Scott to the South Area was not an adverse action, as many miners are routinely moved to the larger South Area from the North Area, and often times the reverse. The cell phone write-up was an adverse action, but was remedied by Newmont prior to this hearing. The write- up that Scott received for an unexcused absence in February, 2010 constitutes an adverse action, as do a number of the disciplinary actions, including those on March 10, 2010 (allegedly in response to the failure to yield at an intersection), June 20, 2010 (allegedly in response to being hit by the shovel) and October 11, 2010 (allegedly in response to parking early and inadequate dumping). The termination of Scott was the final adverse action taken by Newmont.
B. Discriminatory Motive
The connection between the protected activities and the adverse actions is a difficult issue. The Commission has determined that the hostility or “animus” towards the protected activity, timing of the adverse action in relation to the protected activity, and disparate treatment may all be considered in determining the connection between the protected activity and the adverse action. Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 2 FMSHRC 2508 (Nov. 1981).
Having found that Scott engaged in protected activity, and that Scott was subject to adverse actions by Newmont, it is necessary to determine whether Newmont was motivated, at least in part, by those protected activities when it issued disciplinary actions and eventually terminated Scott’s employment. As previously stated by the Commission, direct evidence of actual discriminatory motive is rare. Short of such evidence, illegal motive may be established if the facts support a reasonable inference of discriminatory intent. Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510–11 (Nov. 1981), rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C.Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC 1381, 1398–99 (June 1984). As the Eighth Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.1965):
It would indeed be the unusual case in which the link between the discharge and the (protected) activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the [NLRB] is free to draw any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine operator against a complaining miner or miners includes hostility towards the miner because of his protected activity and disparate treatment of the complaining miner by the operator. Chacon, supra at 2510.
Scott described how the actions taken by the mine were close in time to safety complaints that he had made and to complaints he made to MSHA. In one instance Scott informed Fowers that he needed time off to meet with an MSHA investigator and Scott understood Fowers to be upset about the request. Thereafter, Scott received a written reprimand. At least two of the write-ups were handed to Scott shortly after he met with an MSHA investigator. Other actions on the part of Scott, such as sending an email regarding safety issues were all close in time to the adverse actions.
There is no question that Newmont, and particularly Fowers, found Scott to be a problem employee. Fowers, in the self-assessment portion of his performance appraisal for the year 2010, wrote that he “helped Newmont achieve great results with one of its most difficult employee problems. I provided most of the documentation; this took a great deal of personal time, and resulted in a great outcome.” (Tr. 579). That outcome was that Scott was terminated from his employment. The question is, did Fowers seek to terminate Scott, at least in part, due to his protected activity. It is a very close question but given the timing of the reprimands and disciplinary actions, along with the hostility demonstrated toward Scott, I find that the mine took actions against Scott based in part upon his protected activity.
However, I do not find that Scott was treated differently from other employees as he alleges. I have reviewed the evidence with regard to other similarly situated Newmont employees, particularly those who have a comparable work history. Scott raised several instances of discipline or failure to discipline in this regard. In each instance the employee engaged in some conduct that was more serious than any action taken by Scott. For example, Tervort was in an accident that injured several people, yet he was only given days off. The same is true of Martinez, who was involved in several accidents and, after three incidents, was fired. Both miners violated company policy that resulted in injury or damage and each received a progressive discipline. It appears that, even though the events were more serious, the mine followed the progressive discipline policy in terminating the employment of the other employees. While I find that in some measure, Newmont discriminated against Scott, I cannot rely on the theory of disparate treatment to support the discrimination. Instead I rely upon hostility toward Scott and the timing of the events.
Newmont management’s interactions with Scott indicate definite hostility towards Scott’s safety related activities. Fowers admits that Scott caused problems for him and for other supervisors, and part of those problems related to the many safety complaints made by Scott. Given that hostility, I find that Newmont terminated Scott, at least in part, because of his protected activities. Therefore, I find that Scott has met his burden of demonstrating a prima facie case of discrimination. I find further that the mine operator has not produced sufficient evidence to rebut the prima facie case by showing either that there was no adverse action or that the actions were taken for reasons wholly outside the protected activity.
C. Affirmative Defense of Operator.
Having found that Scott has established a prima facie case of discrimination, I must now consider evidence that indicates that Newmont issued disciplinary citations to and eventually terminated Scott due to unprotected activity and “would have taken the adverse action for the unprotected activity alone.” Secretary of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-818 (1981); Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980).
The Commission has enunciated several indicia of legitimate non-discriminatory reasons for an employer's adverse action. These include evidence of the miner's unsatisfactory past work record, prior warnings to the miner, past discipline consistent with that meted out to the complainant, and personnel rules or practices forbidding the conduct in question. Id.
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 held that “pretext may be found . . . 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).
Upon review, it is obvious that Scott’s work history with Newmont is far from exemplary. Witnesses for the company testified that Newmont has a policy of progressive discipline and that Scott was issued reprimands in accordance with that policy. The progressive discipline policy has a rolling 12 month lag period, meaning that if there is no discipline in one year, the last discipline falls off the record and the progression of discipline begins anew. Some of the discipline warnings are for being absent from work, however, those had little bearing on the termination of Scott. The notices are as follows.
August 22, 2009 Verbal reprimand for refusing to load with assigned operator.
January 18, 2010 Written warning for excessive absenteeism. Jt. Stip. 12.
February 18, 2010 Written warning for an unexcused absence (called in).
March 10, 2010 Written warning for inadequate job performance (failed to yield at an intersection).
June 20, 2010 Written warning and one day suspension for inadequate job performance (parking truck too close to shovel, shovel hit his truck). Jt. Stip. 22.
October 11, 2010 Inadequate job performance (Fower saw Scott quit several minutes early and ordered him back to work; Scott did not respond. Cheney complained about Scott’s refusal to cooperate in dumping in the correct area. Scott also refused to discuss complaint from operator when asked to do so.)
The early write ups were issued by Hutsell, but after Scott was moved to the South Area in February, 2010, the reprimands were issued by Fowers, the senior pit foreman. Fowers testified that he first investigated each incident with Scott and would not have issued any write up without the approval of HR. (Tr. 222).
In slightly more than one year, Newmont issued Scott five warnings (four written and one verbal) primarily for subpar job performance. Scott argued that some of these disciplinary actions, particularly the ones immediately preceding his termination, were merely retaliation for his safety related activities at the mine. I might agree that the final incident, Scott parking his truck before the end of shift, was a minor violation, particularly if Scott were cleaning his truck as he alleges. The difficulty for Scott is that Fowers told two others that it was too early to quit just prior to Scott and then called Scott on the radio three times. Fowers was in a good position to see that Scott was in his truck, and not out cleaning as Scott alleged. Also, all employees on the shift had been warned earlier to not to stop before 7:10, yet Scott decided to quit a few minutes early. In many instances, stopping work a few minutes ahead of time would not be worthy of discipline, but this instance was different, given the prior warning and Scott’s obvious decision to ignore his supervisor. I credit Cheney’s testimony that, on that same night, Scott would not cooperate with him and that it appeared Scott was purposefully dumping in the wrong location. While Scott admits to no wrongdoing that night, I find that there is credible evidence to support Newmont’s position that the reprimand was warranted.
I also find Fowers to be a credible witness. He admits that he thought Scott was a problem at the mine, and understood that Scott made a number of safety complaints. Fowers explained that he carefully documented and reprimanded Scott as appropriate and followed the steps of the progressive discipline policy in order to terminate his employment. Fowers’ testimony is not only supported by Cheney, who is not a supervisor, but also by Tim Wright, who observed a number of the incidents that involved Scott.
The incident with the cell phone, which was removed from Scott’s file, was not a legitimate exercise of the disciplinary process. Nor was the warning for being absent without a good reason in February, 2010. However, the remaining disciplinary actions have a real basis in fact and the mine has shown that those disciplinary actions against Scott were warranted. Admittedly, Fowers wanted to get rid of Scott, but that was due, at least in part, to the fact that Scott continued to go above him in the chain of command with complaints and suggestions without giving Fowers the opportunity to respond. A review of some of the emails to mine management sent by Scott demonstrates an angry and sometimes threatening attitude on his part. In addition, it has been shown that Scott routinely interjected himself into matters that Fowers believed did not concern him, such as alleged harassment against Medina or making a complaint on behalf of Linenger. Fowers saw these actions as interfering with management prerogatives. Given the actions of Scott, I find that Newmont not only had legitimate concerns, but legitimate reasons to terminate Scott’s employment and that, even without the protected safety activity, Scott would have been terminated.
I find no evidence that Scott was treated any differently than other employees with respect to the reprimands, both verbal and written, he received or the company’s enforcement of its progressive discipline policy. Therefore, I agree with Newmont that Scott would have been terminated based upon his unprotected activity alone.
IV. ORDER
As discussed above, I find that Jeff Scott has demonstrated a prima facie
case of discrimination based upon his many protected activities and the mine’s
response. Further, I find that Newmont has presented a credible and legitimate
basis for disciplining and eventually terminating the employment of Jeff Scott
based upon actions other than his protected activity. Therefore, Mr. Scott’s discrimination
complaints are DISMISSED.
/s/
Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
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[1] In his statement to MSHA, Chaney said that he did not go speak with Fowers that night, but during his testimony, which I find credible, he indicated that he had made an error when speaking to the inspector.