E.        The March 10, 2010 Meeting

 

1.         The Beginning of the Meeting

 

On March 10, 2010, Clapp was assigned to operate her regular 106 shovel. After the normal break-out meeting, however, Robinson tapped Clapp on the shoulder and asked her to meet with him and Fischer in the ROS office. (Tr. 196). Given the “emotionally devastating” closed-door meeting that Clapp had previously had with Fischer and Robinson on July 13, 2009, Clapp went to the bathroom, retrieved a digital recorder from her lunch box, and surreptitiously recorded the meeting. (Tr. 200-04).

At the outset of the March 10, 2010 meeting between Robinson, Fischer, and Clapp, Robinson immediately referenced the line-of-sight radio conversation the day before when Clapp told Clark that she had not heard back from Vaccari about her safety concerns with the truck dumping policy. Robinson said that from a truck driver’s perspective, Clapp’s decision to go over his head made it look like Robinson did not know what he was talking about. (Tr. 198, G. Ex. 17, G. Ex. 17A, p. 2.). Clapp reminded Robinson that he had told the crew that if they had a problem with the truck dumping policy, they should speak to Colin Marshall. Robinson explained that he was not going to fight this battle because this is coming down from the top. (G. Ex. 17A, p. 2). So Clapp challenged Robinson as to why he would think a truck driver would perceive Robinson as not knowing what he was talking about if she followed the chain of command and took the issue to Vaccari. (Id. at 2-3). “And you said if you have a problem with that, go to Colin Marshall. You told us to go up. I have a problem with it. And you have never talked to me about it and you don’t want to because you said in that meeting if you have a problem, go up there. So I went to Joe . . . .” and called the other bosses to see what they were doing because there is no communication here. (Id. at 3).

 

Fischer then interrupted and told Clapp that Robinson wanted to talk about how Clapp handled the issue on the radio the first night on March 2 when Young’s truck was overloaded, not last night when Clark’s truck was overloaded. (Id.). Fischer also indicated that he (Fischer) wanted to talk to Clapp about talking to other bosses. Although acknowledging that Clapp could call whoever she wanted, Fischer stated that he did not care how other crews did business, and reminded Clapp that he was running D crew, not Joe Vaccari. (Id. at 4). Clapp said, “Whatever. This is a mine site with four crews.” Fischer then reminded Clapp that she was on D crew and asked whether she agreed that she was in a position of leadership. Clapp responded, “I agree you don’t have any communication out here.” (Id.) Fischer said, “Well, let’s have it?” Clapp again noted that Robinson had directed her elsewhere with her problems. (Id. at 4-5). Robinson then offered the explanation that he did so because Clapp was “pissed on the radio” and disagreed with Robinson’s decision to dump [Young’s] truck, and that Robinson he did not want to fight with Clapp over the radio. Clapp then explained that she did not want to argue over the radio either, and that is why she directed the drivers to call Robinson if they have an overloaded truck that Respondent was not fixing. (Id. at 5). Clapp then directly acknowledged that she understood Robinson’s directive to dump overloaded trucks, and light load them, if necessary, to get through the night (Id. at 5-6), but she again reminded Robinson that he told the crew that if they had a problem with the policy, go to Colin [Marshall], so she went to Joe [Vaccari]. “That’s not undermining you. You flat told us you didn’t want to talk about it,” Clapp said. (Id. at 6).

 

Fischer then told Clapp that Respondent reneged on Robinson’s comment and henceforth “we want you to come to us first.” Clapp initially responded, “No, [Robinson] said go to Colin Marshall.” Fischer reiterated, “from here forth, we want you to come to us first.” Clapp replied, “Well, you’re pissed because I went to Joe.” (Id.) Fischer said that he was “pissed off” because Clapp told Joe that she had light loaded her trucks all night long. Fischer then instructed Clapp, “Don’t light load your trucks all night long.” Clapp responded, “Everybody is. Why are you concentrating on me?” Fischer answered, “Because you are throwing the biggest fit . . . .” Clapp denied throwing a fit, but Fischer rejoined that Clapp threw a fit over the radio. (Id. at 7). The two then went back and forth --yes you did, no I did not -- like a couple of pre-schoolers, until Clapp suggested that Joe [Vaccari] be in the meeting because Fischer would believe what he wanted to believe and that’s all.” Fischer then stated, “Well, I’m going to tell you, I’m not believing nothing.” Clapp then told Fischer, “I don’t care what you tell me.” (Id. at 8).

 

Fischer then told Clapp where she stood with him because he was tired of these meetings also. Fischer noted that Clapp was first on his seniority list, and that she was a very production-oriented shovel operator, whom he was proud of, but “[i]t’s the other stuff that you need help with because you buck the system. You don’t like any changes.” (Id. at 8-9.) When Clapp responded that she communicates, Fischer told her that she was “making life miserable with everything except loading coal in those trucks.” Fischer then told Clapp that she needed to be a leader, that she can’t stop everything that comes down, that she needed to support the crew and company, that she did not, and that he was not asking her to do so, he was telling her to do so, and if she could not do that then “change will be made.” (Id. at 9.) Fischer further told Clapp that he was fed up with “fighting” with her, that “we’re going to enjoy our jobs” and “were going to gel, and we’re going to get along, and we’re going to lead, and we’re going to succeed from the top, which carries on to the bottom,” and that he was not going to have truck drivers who were scared to dump their loads. (Id. at 10). Fischer added, “The shovel operator is going to take them loads at the face because that is what we want, because we run this crew. Joe don’t. Terry Oistad don’t. Okay?” (Id.)

 

When Fischer indicated that he was finished speaking, Clapp told Fischer that “[c]ommunication is one of the biggest things in safety,” which needs to be mine-site wide, and the biggest part of communication is listening, not talking.” When Fischer told Clapp that it works both ways, Clapp basically told Fischer that he can’t listen after he gets angry. Clapp told Fischer that she had a problem with the truck dumping policy, that she had been sent above Fischer’s head and had nothing to hide, and that Robinson’s statement to take her problem to Colin Marshall led Clapp to conclude that Robinson and Fischer had already made their decision and did not want to talk about the issue. (Id. at 11). So Clapp explained that she took the issue “up the ladder” and asked Joe Vaccari why Respondent was dumping loaded coal trucks and why Respondent even had scales, and Vaccari advised Clapp that he never heard of a policy of dumping a loaded coal truck in the pit and he would check into the matter. (Id. at 12) Clapp then explained that the reason she called out to the mine and spoke with Oistad was to foster communication across the mine site by asking what other crews were doing, and that nothing she does is a secret. (Id. at 12-13).

 

Clapp told Fischer that every time we come in here, you are so angry like during the July 13, 2009 MMC screen incident when you were so pissed off and screaming at me and told me that you could make my work uncomfortable. “What the hell is that?” (Id. at 13).

 

Fischer then denied telling Clapp that he could make her work uncomfortable. Clapp told Fischer that is exactly what he said, and the two argued over the point until Fischer stated that he was not afraid to put Clapp [on a track dozer] in an uncomfortable situation out in the mine. (Id. at 13.. Clapp reminded Fischer that she had told him at the time that she would not work in an uncomfortable situation, and would park the vehicle until Fischer arrived, because safety is one of her top priorities, to which Fischer responded, “Well, I’m glad you’re getting on board.” (Tr. 14). On board, Clapp inquired, “I have 28 years,” to which Fischer responded, “You throw a lot of bullshit around.” Clapp replied, “Whatever. You do. You’re good at it.” The childish bickering then degenerated into a disagreement about whether Clapp acted like she had 28 years of safety, who valued safety more, and the fact that Fischer took offense at being accused of lying over exactly what he had said, until Clapp refocused the meeting on communication. (Id. at 14-15).

 

Fischer then told Clapp that telling his boss (Vaccari) that Clapp light loaded trucks all night is not acting like a leader, and he instructed Clapp not to light load all night. Having admitted that he knew that Clapp had done so, Fischer then began to grill Clapp about whether she told Vaccari that she light loaded trucks all night. Initially, Clapp deflected the inquiry by noting that Helen Clark’s truck had been hooked up to the governors and not calibrated. (Id. at 16). Then Clapp said, “Yeah, we back off.” Fischer then asked whether Clapp told Vaccari that she did not light load all night, and whether she lied to Vaccari. Clapp told Fischer to pull the records up and look, and Fischer asked, aren’t you the one complaining about communication. When Clapp asked Fischer if he knew how the scale works, Fischer again asked Clapp whether she told Vaccari that she light loaded all night. Clapp responded, according to the scale, no. Fischer then told Clapp that he could not get an answer out of her to a simple question, to which Clapp responded, I just answered you. Fischer asked again whether Clapp told Vaccari that she light loaded all night. Clapp responded that there was a problem with the scales. (Id. at 170). Fischer asked again whether Clapp told Vaccari that she light loaded all night, to which Clapp responded, according to the scale, yes. Fischer then told Clapp that she told Vaccari that she light loaded all night because Fischer heard her tell Vaccari that. (Id. at 18).

 

                                    2. Babcock Joins the Meeting

 

When HR representative Babcock eventually joined the meeting despite Clapp’s requests for Vaccari (Tr. 775, 819; G. Ex. 17A, pp. 28 and 35), Clapp explained to Babcock that Robinson and Fischer were mad at her for communicating her safety concerns to Vaccari. (G. Ex. 17A, pp. 36-38). Babcock told her, “Well in this case the way the policy is set …. then you go with what the policy is …. If you are told that you need to turn a truck around, that it’s overweight, then you do just that. And if the question is out there and it’s being looked at, you just trust that the powers that be are looking at it. But until you get word of, you know, you don’t have to do this anymore, continue with the policy as is.” (Id. at 39). Babcock further told Clapp that she should not broadcast her concerns to her supervisors over the radio as it could be viewed as questioning authority. (Id. at 40-42).

 

Fischer explained to Babcock that he was bothered by the fact that Clapp gave Robinson “a lot of feedback and flack on the radio,” and really got his “dander up” when she asked Oisted what his crew was doing and told Vaccari that she had to light load the trucks. (Id. at 46-49). Fischer further explained that “the straw that broke the camel’s back” was the incident of March 9 when Clapp told Clark that Vaccari had not gotten back to her about the truck dumping policy. (Id. at 50-51). Robinson agreed with Fischer that as of March 9, Clapp still did not agree with the truck dumping policy and was intent on going to Vaccari, and that back on March 2, she “pulled a safety trump on me” by saying it was unsafe to dump at the face over the radio. (Id. at 52-53).

 

When Clapp insisted to Fischer that she could talk to anybody she wanted concerning her safety concerns (Id. at 57), Fischer opined that Clapp had not learned a single thing during the meeting (Id. at 59), and Babcock admonished Clapp that questioning the policy over the radio and going outside the crew with her concerns was improper and undermined her supervisors’ authority, which he expected her to follow. (Id. at 60-61). Clapp indicated that she was communicating her safety concerns and not undermining authority, and that Cordero focused on her for communicating her concerns when other crews were driving down the road and dumping at the hopper (Id. at 62-63). Thereafter Clapp took a bathroom break. (Id. at 67).

 

                                                3. Clapp’s Restroom Break and Meeting with Safety

 

When Clapp initially returned from the bathroom, Cliff Oedekoven, a utility person, told her that Fischer, Robinson and Babcock needed some additional time to talk in private and they would come get Clapp when they were ready to reconvene. (Tr. 230-31). While she waited, Clapp went to the safety department to raise her safety concerns with the truck-dumping procedure and because she was emotionally upset and uncomfortable about the fact that she had been pulled into the back room again because her safety concerns were not being addressed. (Tr. 231-32.)

 

Josh Tompkins, a safety representative, was meeting with Michelle Whitted, a D-crew haul truck driver and member of the safety training team. (Tr. 231, 234, 268). Whitted was telling Tompkins that communication had closed down and there was no longer any open door policy. She asked Tompkins for advice. (Tr. 569-570). Thompson told her to call the “Speak Out” line, or talk to Vaccari.

 

At that point, Clapp walked in and complained about the meeting she was having with Fischer and Robinson. (Tr. 232, 569). Clapp and Whitted then spoke to Tompkins about the truck-dumping procedure and the “March madness” safety incentive game. (Tr. 233, 570). Clapp told Thompson that she felt the truck-dumping procedure was unsafe, but she had been instructed not to talk to Robinson and Fischer about it because Robinson told the D-Crew in the line-out meeting that if you have a problem with the procedure, take it to the top. Clapp also told Tompkins that she had spoken to Vaccari about the truck-dumping procedure and Robinson and Fischer were mad at her for talking to Vaccari. Clapp further told Tompkins that Robinson and Fischer were unapproachable and that one could not communicate with them. (Tr. 233).

 

Whitted told Tompkins that she gets often “dragged in the back room” with Robinson and Fischer, and mentioned a recent incident involving the “March madness” safety incentive game. (Tr. 235-36). According to Clapp, Tompkins told them that he had been hearing a lot of bad things about Fischer allegedly throwing away employee safety suggestions and discouraging miners from playing the safety incentive game. (Tr. 236). Tompkins told Clapp and Whitted that they needed to get help and let someone know how they were being treated at the mine. (Tr. 236-37). According to Clapp, Tompkins, Clapp and Whitted discussed three options, the Speak Out program, Human Resources (HR), or Joe Vaccari. (Tr. 237). Clapp and Whitted opined that the Speak Out program was inappropriate because it was outside the mine, and that HR did not keep matters confidential and made employees feel uncomfortable. According to Clapp, Tompkins concurred with the notion that HR did not keep matters confidential, and he told them they needed to let Vaccari know what was going on. (Tr. 237, 570).

 

On the other hand, Tompkins testified that Clapp was upset and remained in his office for about an hour, but he could not recall whether Clapp raised any safety concerns. (Tr. 1008). Tompkins further testified that he told Clapp to follow the chain of command and go through Robinson and Fischer, Colby, and then Vaccari with her concerns.

 

I was unimpressed by Tompkin’s testimony and inability to recall, and I credit Clapp and Whitted that they spoke to Tompkins about the truck-dumping procedure and the safety incentive game. (Tr. 253, 570). Tompkins struck me as a witness who had been well prepped to rebut damaging statements attributed to him against the company by Clapp and Whitted, and I find his testimony generally untrustworthy and an effort to make amends. In any event, I credit the mutually corroborative testimony of Clapp and Whitted that they raised safety concerns with this lower-echelon, safety representative.

 

 

 

 

4. The Resumption and Conclusion of the March 10 Meeting and the Events Following That Meeting

 

During the discussion with safety representative Tompkins, Clapp was summoned to return to the meeting with Robinson, Fischer and Babcock. (Tr. 238). When Clapp returned to the meeting, Babcock told Clapp that there were some concerns about her ability to follow the chain of command and communicate through Robinson and Fischer about her concerns, and since emotions were high and management had safety concerns about sending Clapp out on the shovel, they had decided to send her home with pay. Babcock said, “You can take the day. Think about it, and then come in tomorrow ready to go. We’ll finish up the conversation tomorrow, and then, you know, and go from there. But the bottom line is that . . . any concerns have to go through them [Robinson and Fischer]. Okay?” (G. Ex. 17A, p. 67-68).

 

Clapp affirmatively acknowledged the need to communicate through Robinson and Fischer, explained that she does communicate with them and follow the chain of command, and explained why she did not come to them with the truck-dumping procedure because she was told to go elsewhere, i.e., to Colin Marshall. She further explained that there had been no attempt to undermine them, just a breakdown of communication. (Id. at 68; Tr. 238). Finally, Babcock admonished Clapp that as a leading crew member, if she disagreed with management policy, she should bring it to management’s attention in a one-on-one conversation, but not argue with management over the radio. (Id. at 68-69). Clapp agreed that she would follow procedure and the meeting ended. (Id. at 69).

 

Fischer testified that after Clapp left the meeting, he, Robinson and Babcock continued to discuss what they were going to do about Clapp. Fischer recommended to HR (apparently Babcock), that Clapp be demoted to a level 5 shovel operator because Clapp would not answer or communicate with him and was not taking a leadership role as a level 6 shovel operator. (Tr. 952-53). There was no discussion about terminating Clapp at that point. (Tr. 954). On March 10, Babcock briefed Vaccari about what occurred during the meeting with Clapp earlier that day. (Tr. 1087).

 

Babcock testified that after Clapp left the March 10 meeting, Babcock, Colby, Fischer and Robinson decided to give Clapp a written letter of discipline demoting her to a level 5 shovel operator because of the lack of leadership that she was showing. (Tr. 1041-42). When asked what the basis for his support of that decision was, Babcock testified, “Insubordination she had shown during the last couple of weeks.” (Tr. 1042). When asked to explain, Babcock testified that he meant the questioning of authority that [Robinson] and [Fischer] had given her, the comments that Clapp made over the radio to her crew, and the lack of acknowledgment during the March 10 meeting that Robinson and Fischer were her supervisors. (Tr. 1042).

 

After the meeting ended, Clapp went back to safety representative Tompkin’s office. Clapp testified that she felt, hurt, scared, emotional, and stressed after the meeting because her safety concerns were not being addressed. When asked by the undersigned why she was scared, Clapp explained: “I’m scared for my coworkers’ safety and mine. You can’t talk about safety out there. You can’t approach Dave and Gerald.” (Tr. 240).

 

Tompkins asked Clapp if she was okay. When Clapp said no, Tompkins handed her a piece of paper with his phone number and the phone numbers for HR and Vaccari. Tompkins told Clapp that she needed to talk to somebody. (Tr. 239-240).

 

Thereafter, Clapp’s husband picked her up at work and they spoke about contacting her former supervisor, Bob Brill, then retired. (Tr. 240). Clapp decided to visit Brill at his home because she was concerned about the way workers were treated by Robinson and Fischer, who were unapproachable, and she had safety concerns about the truck-dumping policy. (Tr. 241). Clapp told Brill that she felt it was unsafe to be turning trucks around down in coal and dumping loaded coal trucks by the shovel. She told Brill that Robinson and Fischer were aggressive and unapproachable and did not want miners to talk about safety. Clapp mentioned the incident when she pushed the truck off the highwall. Clapp asked whether she should talk to Vaccari because she was uncomfortable talking to HR. Brill advised Clapp to talk to Vaccari. (Tr. 241-42).

 

Clapp credibly testified that she could not sleep that evening after the meeting with Robinson, Fischer and Babcock. She was concerned that the whole atmosphere in the pit had changed when working with Robinson and Fischer. As Clapp put it, miners no longer wanted to talk to management and were afraid to raise safety concerns. Rather, they called her with their safety concerns, and when she raised such concerns, they were ignored or resulted in accusatory or threatening back-room meetings. (Tr. 242-43).

 

F.        The Events of March 11, 2010

 

At about 5 a.m. on March 11, 2010, Clapp called Vaccari at home. Clapp told Vaccari that she had serious concerns about issues at the mine and asked to speak to him about them. Vaccari told Clapp that she could speak to him anytime. Accordingly, Clapp made an appointment to speak with Vaccari during her 7-day off period on Friday, March 12 at 8:30 a.m. Before hanging up, Clapp told Vaccari that she had been up all night because of her concerns and did not feel that she should come to work and she was going to take a floating holiday (“floater”) for her shift that morning. (Tr. 244, 1090). According to Clapp, Vaccari said, “I understand.” Tr. 244. Vaccari confirmed making this remark and was aware of the fact that Clapp might assume that it constituted tacit approval form the mine manager to take the floater . (Tr. 1091, 1120-21).

 

After calling Vaccari, Clapp called Robinson and told him that she was taking a “floater.” (Tr. 247). According to Clapp, Robinson was “dead quiet” at first, and then asked, “Are you sick?” (Tr. 247). Clapp said, “No, I am taking a floater,” and the line went quiet again until Fisher picked up. Fischer asked what Clapp wanted, and Clapp said that she was taking a floater. According to Clapp, Fisher said, “You can’t we got meetings.” (Tr. 247). Clapp responded that she did not know that, and she was taking a floater. According to Clapp’s credible testimony, Fischer said, “Okay, fine,” and hung up. (Tr. 247).

 

Respondent’s witnesses offered a different version of these events and argue that Clapp was directly insubordinate when she took a floater and failed to report for a scheduled meeting. Vaccari testified that miners needed to request permission to take floaters, that floaters can be denied, and that Fischer was within his authority to refuse Clapp’s request for a floater. (1092). Vaccari further testified that it is very unusual for a miner to ignore a supervisor’s directive concerning a floater. (Tr. 1093). Colby and Fischer testified that they have never had an employee take a floater after being denied permission. (Tr. 679, 949). In fact, Colby considered Clapp’s refusal to report on March 11 to be directly insubordinate because Respondent purportedly had a policy that supervision has to approve a floating holiday. (Tr. 679).

 

On cross examination, Clapp testified that she thought she had Fischer’s permission to take the floater and that she did not know she had meetings. I credit this testimony from Clapp. Clapp also testified that she did not hear Babcock’s statement during the March 10 meeting that they would finish up the conversation tomorrow and take it from there. (Tr. 350) I discredit Clapp’s testimony that she did not hear Babcock’s statement given the emotional nature of the meeting. I note that Clapp directly answered Babcock’s ensuing question by acknowledging that her concerns must go through Robinson and Fischer. (Tr. 352) I credit Clapp’s testimony, however, that she believed that she had Fischer’s permission, albeit reluctant, to take a floater, and that no specific meeting was scheduled, just a continuation of the discussion when she reported for work. I note that Babcock’s statement during the March 10 meeting was ambiguous. He told Clapp, “You can take the day. Think about it, and then come in tomorrow ready to go. We’ll finish up the conversation tomorrow, and then, you know, and go from there.” Vaccari’s notes from his subsequent March 12 meeting with Clapp and Whitted, discussed below, confirm the fact that Clapp told him on March 12 that Fischer did not say that Clapp could not take a floater on March 11. Rather, Fischer said “OK goodbye.” (Tr. 1096; R. Ex. 20). In addition, I find that Clapp already had obtained Vaccari’s tacit approval to take a floater on March 11, given her emotional state.

 

I infer that Fischer realized that something needed to be done so that he could resolve outstanding issues with Clapp because she was not scheduled to return to work again until March 19. (Tr. 1050). Accordingly, when HR Director, Amy Clemetson, arrived at the mine that morning, Fischer told her that “we had a meeting set up that morning for 7:00 and that Cindy called in and told me she was taking the day off.” According to Fischer, Clemetson said that she would give Clapp a call and tell her that she has to be in by 9 a.m. for the meeting. According to Fischer, Clemetson later followed up and told Fischer that she could not reach Clapp, but left a message. (Tr. 951).

 

According to Clemetson, Fischer told her “that Cindy had not shown up for a meeting that they had scheduled that morning, that she had called in and asked for a floater, and he told her that she needed to come out to her meeting. And she told him no, and he let her know that HR would call her.” (Tr. 1135). As noted, however, I have credited Clapp’s testimony, that Fischer ended the conversation by saying “Okay, fine.” (Tr. 247). As further noted, I have found that Clapp already had obtained Vaccari’s tacit approval to take a floater.

 

Clemetson testified that she looked up Clapp’s home number in Respondent’s automated system. Clemetson then called Clapp at home at about 6:50 a.m. and left a message on Clapp’s answering machine. Clemetson’s message indicated that Clemetson was aware that Robinson and Fischer had a meeting scheduled with Clapp that morning, and directing Clapp to report to the mine site by 9 a.m. for the meeting and to call with any questions. (Tr. 1136, 1143). Babcock testified that he was present when Clemetson left the message. (Tr. 1047).

 

Clapp credibly testified that she checked her messages that day and did not receive a call or message from Clemetson or anyone else at the mine. (Tr. 247-48, 251). Rather, after Clapp spoke with Fischer, she went to bed and slept the rest of the day. (Tr. 248).

 

Clemetson admitted that she had heard that Clapp never received her message to report to a meeting on March 11. On questioning from the undersigned, Clemetson could not recall when or from whom she heard this. (Tr. 1144-45).

 

After Clapp called for the floater on March 11, Robinson, Fischer, and Colby discussed a recommendation to terminate Clapp because they purportedly had decided that termination was their only option when Clapp did not show up for the meeting. (Tr. 789). Colby informed Fischer that Clapp had a meeting scheduled with Vaccari the next day and that Vaccari wanted to meet about Clapp later in the week. (Tr. 786, 955-57).

 

Vaccari testified that Clemetson made him aware that Clapp had missed the meeting scheduled to take place with Clapp on March 11, 2010. (Tr. 1093). Vaccari also testified that Fischer informed him sometime after Vaccari arrived on March 11, that Clapp had requested a floater and that Fischer said, “No, you need to be out here for a meeting.” (Tr. 1091). Vaccari admitted telling Fischer that Clapp had called Vaccari early that morning, but could not recall the specifics of what he told Fischer. (Tr. 1091-92). When the undersigned asked Vaccari if he told Fischer that Clapp had told Vaccari that she was up all night and could not sleep and needed to take the day off, Vaccari obliquely testified as follows:

 

She said she was going to take the day off. She did not ask him if she could take the day off. I said I understood, and told Gerald that after he’d already had a conversation with Cindy.

 

(Tr. 1092). As noted, when Vaccari spoke with Fisher, Vaccari had already given tacit approval to Clapp to take the floater.

 

On the afternoon of March 11, Vaccari, Clemetson, Babcock, Colby, Fischer and Robinson met to discuss the next step of the disciplinary process for Clapp. At that point, the participants learned, if they did not already know, that Clapp had called Vaccari earlier that morning and had made an appointment to meet with him the next day, Friday, March 12. (Tr. 1047-48). The group brought Vaccari up to speed on what happened that morning. (Tr. 1137). Vaccari decided that no disciplinary decision would be made on March 11, so soon after the heated meeting on March 10. Vaccari wanted to meet with Clapp on Friday, March 12, and let everyone take the weekend to think things over, before regrouping the following week. (Tr. 963, 1048, 1137).

 

G.       Clapp and Whitted Concertedly Raise Safety Concerns During the March 12 Meeting With Vaccari

 

Towards the end of the day on March 11, Clapp and Michelle Whitted spoke to one another. Whitted agreed to go with Clapp to speak with Vaccari the next day. (Tr. 249-250, 592). They wanted to talk to Vaccari about the issues raised with safety representative Tompkins, including the fact that they were tired of being dragged into the back room and tired of being unable to talk about safety. (Tr. 250).

 

Whitted gave Clapp a ride to the meeting, which took place in Vaccari’s office on March 12. (Tr. 253, 591-92). Before the meeting, Clapp had called Vaccari’s office to let him know that Clapp and Whitted would be meeting in concert with Vaccari. (Tr. 252-53).

 

Vaccari perceived his role in the meeting as a passive listener who allowed the employees to vent over the problems they had, but not to resolve any issues. (Tr. 1094-95). Vaccari took contemporaneous notes to “capture the gist” of the concerted activity. (Tr. 1095).

 

Clapp started the meeting by telling Vaccari that his was the hardest thing that she has had to do at work because of the seriousness of her concerns. (Tr. 254; R. Ex. 20, p. 1). Clapp wasted little time before homing in on her prior, protected activity by reiterating her safety concerns about turning around loaded coal trucks in the slot and dumping them at the face, and questioning why Respondent was engaged in such procedure. (Tr. 254, R. Ex. 20). Clapp told Vaccari that Robinson and Fischer were angry with her for expressing her safety concerns to Vaccari and Oistad after Robinson had told the crew that if they had a problem with the truck-dumping procedure to take it to Colin Marshall. (Tr. 254, 256). According to Clapp’s credible testimony, Vaccari stated that he knew the trucks were not overloaded and he agreed with Clapp’s observation that Respondent had experienced a lot of accidents at the beginning of winter. (Tr. 255).

 

Whitted and Clapp then focused the conversation on the safety incentive game and the fact that Robinson and Fischer discouraged and intimidated employees in back-room meetings from raising safety concerns. (Tr. 254, 256, 577-79). In fact, Vaccari’s March 12 notes described the March 10 meeting with Clapp as an “Intimidation Mtg” in which an “extremely angry” Fischer allegedly told Clapp “you make me sick always talking safety” and using “safety to get her way.” (R. Ex. 20, p. 1).

 

When Vaccari asked what they felt would solve their problems, Clapp opined that Fischer and Robinson needed sensitivity training on how to treat and get along with co-workers, and Whitted opined that Clapp was too nice and Fischer and Robinson should be fired. (Tr. 256). At the end of the meeting, Clapp and Whitted expressed how uncomfortable they felt expressing such serious concerns to Vaccari. Vaccari offered the platitude, “We can keep it in the family.” (Tr. 257-258).

H.       The March 17, 2010 Termination Decision

 

Vaccari, Clemetson, Colby, Babcock, Fischer and Robinson met on March 17 and decided to recommend Clapp’s termination for insubordination. (Tr. 679, 785, 959, 1050-51, 1105-06, 1137-38). Vaccari told the “family” about Clapp’s [and Whitted’s] complaints. (Tr. 959, 966, 1101-02, 1105-06).

 

Robinson and Colby recommended termination for insubordination because Clapp purportedly refused to come to work for the meeting on March 11. (Tr. 709, 728, 788). In fact, on cross examination, Colby, who signed the March 18, 2010 discharge letter ( R. Ex. 1), limited the discharge to this justification. (Tr. 724-25). Fischer confirmed that Clapp was terminated for the alleged insubordinate act of not showing up for the meeting. (Tr. 967).

 

Babcock, by contrast, recommended termination for insubordination because Clapp attempted to send trucks to the hopper that were overloaded, challenged Robinson over the radio regarding the truck-dumping procedure, went to another supervisor with her concerns, failed to acknowledge that Robinson and Fischer were her supervisors during the March 10 meeting, and failed to post for the March 11 meeting that Babcock purportedly had scheduled. (Tr. 1051).

 

HR Director Clemetson supported the recommendation for termination because Clapp allegedly disregarded the instructions of her supervisor to dump overloaded coal trucks back at the face. (Tr. 1139-40) She explained:

 

.... For me, when plans are made and set, it’s the expectation that employees are going to follow it, especially after it has been communicated. And having an employee just go out and do what they wanted or change that plan, it was causing – in my opinion, was a safety risk to that employee as well as the others around them.

 

(Id.) In addition, Clemetson noted that Clapp continued to show disrepect or disregard for the instructions of her supervisor by failing to show up for the March 11 meeting. (Tr. 1140).

 

Vaccari recommended termination for insubordination based on Clapp’s full record because Clapp allegedly refused to listen to her supervisor and failed to show up for the March 11 meeting. (Tr. 1106-07). As Fischer put it, Vaccari said, “I’m in agreement with you all and I support my leadership team in the decision.” (Tr. 965).

 

 

I.    The March 18, 2010 Termination of Clapp and  Subsequent Retaliation Against Whitted

 

Clapp was not scheduled to return to work on the D Crew until March 19. (Tr. 257). On March 18, 2010, Clemetson called Clapp and left a message on her answering machine. Clapp received the message informing Clapp that Clemetson, Colby and Fischer wanted to meet with her at 3 p.m. in the corporate office and to call back to confirm that she received the message. (Tr. 258, 1141-42). Clapp called Clemetson back and left a message confirming that she would be at the March 18 meeting. (Tr. 258).

 

Clapp arrived at corporate on March 18 with a large thermos of coffee. Clemetson escorted her to the meeting room where Colby and Fischer were present. Clemetson handed Clapp a termination letter (R. Ex. 1), signed by Colby, and said Cindy you are terminated. (Tr. 258). The termination letter stated that although Clapp’s employment was at will, “[t]he reason for this termination is due to your insubordination towards leadership and for other legitimate business reasons.” (R. Ex. 1). Clapp testified that she read the letter, said nothing, and left. (Tr. 258-59). Clemetson asked if Clapp had any questions and Clapp said no. Clemetson told Clapp to give her a call to arrange to pick up her belongings at the mine site. (Tr. 1145). Clapp credibly testified that she was totally shocked by the termination. (Tr. 259).

 

The evening of March 18, Clapp called Whitted. Clapp told Whitted that Clapp had been fired and that she was scared for Whitted and wanted her to be prepared. (Tr. 580).

 

On March 19, Whitted “was pulled into a meeting in the back office” with Fischer, Robinson, and Cliff Oedekoven (step-up utility lead), and told that Respondent was taking Whitted’s crew training position away, that they no longer had a working relationship, and that she was lying about the safety incentive game’s near-miss cards. (Tr. 580, 594). Whitted was in tears and told them that she was thankful that she still had her job because she was scared that she would lose it. (Tr. 580).

  

III. Legal Analysis

 

A.        The Mine Act and its Legislative History

 

Congress declared in Section 2(a) of the Federal Mine Safety and Health Act of 1977 that “the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource—the miner.” Accordingly, the Mine Act includes strong anti-retaliation provisions to encourage miners to become more involved in voicing concerns about mine safety. According to Congress, “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 (1977).

 

Section 105(c)(1) of the Mine Act is the source of these protections. Section 105(c)(1) provides as follows:

 

No person shall discharge or in any manner discriminate against or

cause to be discharged or cause discrimination against or otherwise

interfere with the exercise of the statutory rights of any miner,

representative of miners or applicant for employment in any coal

or other mine subject to this Act because such miner,

representative of miners or applicant for employment has filed or

made a complaint under or related to this Act, including a

complaint notifying the operator or the operator’s agent, or the

representative of the miners at the coal or other mine of an alleged

danger or safety or health violation in a coal or other mine, or

because such miner, representative of miners or applicant for

employment is the subject of medical evaluations and potential

transfer under a standard published pursuant to section 101 or

because such miner, representative of miners or applicant for

employment 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 because of the exercise by

such miner, representative of miners or applicant for employment

on behalf of himself or others of any statutory right afforded by

this Act.

 

30 C.F.R. § 815(c)(1).

 

Thus, miners receive protection against various types of discrimination in Section 105(c)(1) for engaging in the protected activity of voicing concerns about mine health and safety issues. In passing the Mine Health and Safety Act of 1977, Congress expanded protections for miners based on the belief that the miners’ willingness to assist in observing and reporting issues of mine safety to their supervisors was a vital component in the effort to improve mine health and safety standards overall. The legislative history shows Congress’s concern for encouraging miners to step forward and advocate for their safety, without fear of reprisal. In its attempt to achieve this goal, Congress enacted a provision that broadly interpreted the definition of protected activity. Specifically, “the Committee intends that the scope of the protected activities be broadly interpreted by the Secretary, and intends it to include not only the filing of complaints . . . but also the refusal to work in conditions which are believed to be unsafe or unhealthful” as well as “the refusal to work in conditions which are violative of the Act or any standard promulgated thereunder, or the participation by a miner or his representative in any administrative and judicial proceeding under the Act.”

 

Furthermore, the legislative history of the Mine Act indicates that Congress wanted to prohibit forms of discrimination that were not always the most obvious and to “protect miners against not only the common forms of discrimination, such as discharge, suspension, demotion, reduction in benefits, vacation, bonuses and rates of pay, or changes in pay and hours of work, but also against the more subtle forms of interference, such as promises of benefit or threats of reprisal.” These protections were designed to encourage miners to become actively involved in advocating for improved safety and health standards.

 

B.       Legal Principles

 

A complainant alleging discrimination under section 105(c) of the Act, 30 U.S.C. § 815(c), establishes a prima facie case of prohibited discrimination by presenting evidence sufficient to support a conclusion that 1) the individual engaged in protected activity, and 2) that the adverse action complained of was motivated in any part by that activity. See Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 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 (Apr. 1981). In determining whether a mine operator’s adverse action was motivated by protected activity, the Commission has noted that a judge must bear in mind that “direct evidence of motivation is rarely encountered; more typically, the only available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). “Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence.” 3 FMSHRC at 2510 (citation omitted). In Chacon, the Commission listed some of the more common circumstantial indicia of discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus towards the protected activity; (3) coincidence in time between the protected activity and the adverse action; and (4) disparate treatment of the complainant. 3 FMSHRC at 2510-12.

 

Once a prima facie case is established by a preponderance of the evidence, 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 protected activity. See Robinette, 3 FMSHRC at 818, n.20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by the miner’s unprotected activity and would have taken the adverse action for the unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test).

 

Apart from actual discharge or discipline, the Commission explained in Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1479 (1982), that coercive interrogation and harassment over the exercise of protected rights is prohibited by § 105(c)(1) of the Mine Act. In fact, section 105(c)(1) states that “no person shall discharge or in any manner discriminate against... or otherwise interfere with the exercise of the statutory right of any miner.” (italics added.) In Moses, the Commission was guided by the legislative history of the Mine Act, which referred to “the more subtle forms of interference, such as promises of benefit or threats of reprisal.” Moses, supra, at 1478, citing Legislative History at 624. The Commission observed that a “natural result” of such subtle forms of interference “may be to instill in the minds of employees fear of reprisal or discrimination.” Moses, supra, at 1478. As the D.C. Circuit observed in Phillips v. Interior Board of Mine Operators Appeals, 500 F.2d 772, 778 (D.C. Cir. 1974), “safety costs money” and “miners who insist on health and safety rules being followed, even at the cost of slowing down production, are not likely to be popular with mine foreman or top management.”

Moreover, in a number of cases, the Commission has looked for guidance to case law interpreting similar provisions of the NLRA, as well as Title VII and other employment statutes, to resolve questions concerning the proper construction of provisions of the Mine Act. See Swift v. Consolidation Coal Co., 16 FMSHRC 201, 206 (Feb. 1994) (standard for showing facial discrimination); Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2542-45 (Dec. 1990) (legality of operator's policy of paying employees who testify as witnesses on its behalf, but not paying employee for time spent testifying as another party's witness); Local Union 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1501 n.6, 1504-05 (Nov. 1988) (appropriate rate of interest on backpay awards), aff'd sub nom. Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773 (D.C. Cir. 1990); Metric Constructors, Inc., 6 FMSHRC 226, 231-33 (Feb. 1984) (mitigation defense to backpay award), aff'd, 766 F.2d 469 (11^th Cir. 1985). In Delisio, the Commission noted that it “has recognized in several contexts that . . . cases decided under the NLRA -- upon which much of the Mine Act's anti-retaliation provisions are modeled -- provide guidance on resolution of discrimination issues under the Mine Act.” 12 FMSHRC at 2542-43 (citing Metric Constructors, 6 FMSHRC at 231). Applying a similar rationale below, I conclude that case law applying unlawful interference principles as evidence of animus under Section 8(a)(1) of the NLRA may be considered for guidance in interpreting comparable provisions of the Mine Act dealing with unlawful interference.

B.        The Secretary’s Prima Facie Case of Discrimination Against Clapp

 

1. Protected Activity

 

The record is replete with Clapp’s ongoing protected activity of making safety complaints to Cordero, including Robinson, Fischer, Vaccari, and the safety department, before Cordero terminated her employment on March 18, 2010. In November 2008, Clapp spoke with Robinson and Fischer about sending a pickup for the crew with insufficient seatbelts. (Tr. 623-24, 1066). Clapp then spoke with Vacarri about the incident. (Tr. 1066). During Clapp’s explanation, Vaccari uncovered the seat belt violation. (Tr. 373-74, 1066). Vaccari told Fischer about the issue for follow up. (Tr. 1067).

 

About early February 2009, Clapp complained to Robinson and Fischer about monitor screen placement impairing visibility in rubber tire dozers. (Tr. 125). In response to these concerns, Fischer retorted, “We’re not moving them screens. We are using them screens, get used to it.” (Tr. 124). On February 22, 2009, Clapp completed a pre-shift report for the 325 rubber tire dozer and noted that the screen blocked her vision and she would have shut the machine down if she was the regular operator. (Tr. 127, G. Ex. 15, p. 1). Robinson told Clapp, “[R]espondent won’t be moving them screens.” (Tr. 127).

 

On March 1, 2009, Clapp made similar impaired-visibility complaints on the pre-shift form for the 328 rubber tire dozer. (Tr. 128, G. Ex. 15, p. 2). On March 21, 2009, Clapp made similar impaired-visibility complaints on the pre-shift report for the 103 shovel (Tr. 134; G. Ex. 16, p. 1), and asked Fischer and Robinson to have maintenance fix the problem. (Tr. 136, 138) Her complaint made its way to Colby’s desk. (Tr. 794). Clapp followed up on the issue a couple of months later and was told by Fischer and Robinson that they were not going to move the screen. (Tr. 138).  

 

About March or April 2009, Clapp complained to Fischer and Robinson in safety meetings, in private discussion, and by radio, about rubber tire dozers that had been parked and left unmanned behind her shovel while the RTD operator ran other equipment, such as the blade. (Tr. 97-99). Fischer and Robinson told her they did not care what her concerns were, that it was not unsafe to park the unmanned dozer behind the shovel. (Tr. 99). At the hearing, Clapp identified a litany of reasons why the practice was unsafe, including entrapment upon spoil failure. (Tr. 100-01). I find that Clapp established the good faith and reasonableness of her subjective belief that a hazard existed. Cf., Robinette, 3 FMSHRC at 807-12; Secretary on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993. Moreover, I find that Clapp’s perception of the hazards was objectively reasonable and not so groundless or irrational as to fail even a more stringent objective test. Cf. Asarco, Inc., 18 FMSHRC 317, 325 (Mar. 1996) (ALJ Manning).

 

On July 13, 2009, Clapp moved the MMC screen that was blocking her vision in the 103 shovel, but left the screen operational so that she could hear communications from dispatch. (Tr. 140-142, 794; G. Ex. 16, p. 2). According to Clapp’s credible testimony, when Fischer arrived, he immediately started yelling at her, noting that the screen was a $20,000 piece of equipment that could not be moved. When Fischer put the screen back in the window of the shovel, Clapp said, “I’m safer than you Gerald. I’m safer than you. I have got to have vision in my shovel. I need to see. I’m responsible down here for not injuring anybody. I have to have my vision.” (Tr. 145). Clapp credibly testified that Fischer became furious and yelled at her loudly, “You are not safer than me.” As Fischer adjusted the screen, he yelled, “It doesn’t bother me, it doesn’t bother me at all. It doesn’t bother anybody but you. Bend over and look under it.” (Tr. 146-47). I find that Clapp’s remarks were part of the res gestae of protected activity.

 

During the subsequent back-door meeting in Fischer’s office, I find that Fischer interfered with Clapp’s statutory rights by telling her that could make her work in uncomfortable situations (such as placing her in a track dozer at the top of a highwall) even if she thought it was unsafe. (Tr. 149-50) The Commission has recognized that there are situations in which the response of a supervisor to a miner's protected complaint may constitute interference with the exercise of the miner's right to complain. See Moses v. Whitley Development Corporation, 4 FMSHRC 1475, 1478-1479 (Aug. 1982), aff'd 770 F. 2d 168 (3^rd Cir. 1981). The question of whether a management official's response constitutes interference proscribed by the Act must be determined by what is said and done and the totality of circumstances surrounding the words and actions. Secretary on behalf of Mark Gray v. North Star Mining, Inc., 27 FMSHRC 1, 8 (Jan. 2005) (quoting Moses, at 1479, n.8). In essence, the test for unlawful interference is whether the employer engaged in conduct that has a reasonable tendency to interfere with the free exercise of employee rights under the Act. Cf. NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7^th Cir. 1966). Threats directed to a miner for exercising a protected safety-complaint right constitute discrimination and unlawful interference under § 105(c) of the Act. Secretary on behalf of Johnson v. Jim Walker Resources, 15 FMSHRC 2367, 2377 No. 1993) (Judge Fauver), citing Denu v. Amax Coal Company, 11 FMSHRC 317, 322 (1989), (Judge Melick); Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1479 (1982); and Secretary on behalf of Carson v. Jim Walter Resources, Inc., 15 FMSHRC 1993, 1996-1997 (1993) (Judge Maurer). Although the Secretary did not plead Fischer’s remark as interference and a substantive complaint allegation, it is background evidence of animus.

 

I find that Clapp also engaged in protected activity when she told Fischer that she will never do anything unsafe like that and that she would park the dozer and wait for Fischer to come get her. (Tr. 149). I find that Clapp engaged in further protected activity when she told Fischer and Robinson that she needed vision for her safety and the safety of others on her coal run.

Also during the summer of 2009, Miller heard Clapp call Robinson and Fischer over the radio and asked for a water truck because of dusty conditions in the pit. Miller credibly testified that Robinson then turned to Fischer and said, “I don’t care how many times she calls she is not getting a water truck.” (Tr. 521). I find that Robinson’s statement interfered with Clapp’s statutory right to request water and had a reasonable tendency to coerce Miller who overheard it. Cf. Simpson Electric Co., 250 NLRB 309 (1980). Robinson conveyed the message to Miller that it was futile for Clapp to request water because it would not be provided. Under all the circumstances, I conclude that Robinson’s statement would reasonably tend to interfere with a miner’s exercise of rights guaranteed by the Act.

Clapp engaged in further protected activity throughout 2009, and more often in the winter months of late 2009 and early 2010, when she called Robinson and Fischer several times to request water because of dusty conditions in the pit, but her requests were ignored. (Tr. 108-09, 116). Clapp also called Fischer and Robinson during this time frame on behalf of several truck drivers on her crew because their requests for water were also ignored and they, unlike Clapp, chose not to risk angering Fischer or Robinson by continuing to call for water. (Tr. 112-115). On two occasions during this time frame, Clapp called Fischer and Robinson to inform them that she was shutting down the run because neither she nor the truck drivers could see with the pit engulfed in dust. (Tr. 109-10). I have credited Clapp’s testimony that once she engaged in the work refusals and shut down the run, Fischer and Robinson immediately sent water. (Tr. 110).

 

In January 2010, just two months before her discharge, Clapp engaged in protected activity when she told safety department head Andrews, that she was having problems when she asked for a water truck and needed his help. (Tr. 111). Clapp was then serviced by a water truck during day-shift rotation when the safety department was present, but continued to have problems on nights and weekends when no one from safety was on-site. (Tr. 111-12).

 

Also in January 2010, Clapp spoke with safety representative McLaughlin and raised ongoing safety concerns about unmanned rubber tire dozers parked behind her shovel. (Tr. 103-04). Clapp also informed McLaughlin that she thought the practice had become deliberate after she raised her safety concerns with Fischer and Robinson earlier in the year. According to Clapp, this allegation troubled McLaughlin, who asked for time to think about how to handle it. (Tr. 104). Thereafter, the rubber tire dozer was not parked unmanned behind Clapp’s shovel during day shifts when the safety department was present. But the practice continued on nights and weekends. (Tr. 104-105).

 

In early March 2010, shortly before her discharge, Clapp repeatedly engaged in protected activity when she raised safety concerns about turning around and dumping overloaded coal trucks back at the coal face. For example, on the evening of March 2, when the governor was triggered in Young’s truck, Clapp called Robinson, who directed her to have the truck turned around and dumped in the coal face. Clapp told Robinson that it was “stupid and unsafe” to do so, but she complied with his directive and had Young dump his truck back at the face. (Tr. 172, 177; R. Ex. 18). Fischer admitted at the March 10, 2010 meeting that he condoned Clapp’s remarks on this occasion. (G. Ex. 17A, p. 48). Robinson’s own notes confirm Clapp’s protected activity on this occasion when she told Robinson that it was unsafe “dumping trucks at the face as they would have to turn the truck around in the traffic in the slot and back it under the shovel which she thought was dangerous.” (R. Ex. 18).

 

At the end of the shift on March 2-3, 2010, Clapp engaged in further protected activity when she conveyed her safety concerns about the truck-dumping procedure to mine manager Vaccari in the hallway. (Tr. 181-82). Clapp told Vaccari that she thought it was unsafe to turn around and dump loaded coal trucks in the uneven pit. (Tr. 182-83, 1115). Clapp saw Robinson and then Fischer give her angry looks behind Vaccari’s back. (Tr. 185-86). Thereafter, Vaccari discussed ways to address Clapp’s concerns with Robinson and Fischer. (Tr. 1119).

 

 Clapp engaged in further protected activity when she called ROS Oistad on March 3 to express her concerns about the truck dumping procedure. Clapp told supervisor Oistad that she was afraid to turn around trucks and have them raise their beds and dump coal down in the congested coal slot, particularly in light of recent truck accidents that had occurred at the mine in late winter and early spring. Clapp told Oistad that she felt that Respondent was pushing the line on safety by taking risks that were unnecessary. (Tr. 189, 1023-24). Oistad conceded in his testimony that Clapp raised safety concerns regarding congestion in the slot (Tr. 1023-24), and told Fischer and Robinson that Clapp had called him to express her concerns about the truck-dumping policy. (Tr. 773-74, 919-20).

 

On March 9, Clapp engaged in protected activity when she told driver Clark over the line-of-sight channel, which Robinson and Fischer were monitoring, that Clark was going to have to dump her truck back at the face because nothing has changed, and Vaccari had not gotten back to her about her safety concerns. (Tr. 192-95). Clapp’s remarks provoked Fischer’s outburst that he did not care what Vaccari said, that this was Fischer’s policy, so turn that truck around and dump it. (Tr. 193). Clapp complied with Fischer’s decision to dump Clark’s truck. (Tr. 193).

 

During the heated meeting on March 10, Clapp engaged in protected activity when she told Fischer, Robinson and Babcock that she had a right to call Oistad, Vaccari, and the safety department with her safety concerns about turning loaded coal trucks around and dumping “in the middle of the night in the dark down in black coal,” which she felt was stupid and very dangerous. (G. Ex. 17, G. Ex. 17A, pp. 3-6, 24-27, 29-40, 46-47). In fact, Robinson acknowledged at the meeting and at the hearing that Clapp “pulled a safety trump on me, said it was unsafe to dump them at the face on the radio.” (G. Ex. 17A, p. 53, p. 17; and Tr. 827-28) Robinson’s own notes state “. . . I then reminded her of last week when she had to dump 271 and she had argued with me over channel three and pulled a safety trump on me by saying over the radio that it was an unsafe practice. I then told her that since she disagreed with me, she had raised the issue with both Terry Oistad and Joe Vaccari . . . . ” (R.Ex. 18, lines 6-9).

 

Clapp engaged in further protected activity when she returned to the safety department after the meeting with Robinson, Fischer and Babcock on March 10 and was advised by Tompkins to talk to HR or Vaccari about her ongoing safety and communication conerns. (Tr. 239-240). Clapp engaged in further protected activity when she called Vaccari on March 11, told him that she had been up all night because of serious concerns about issues at the mine, and arranged a meeting with him to discuss her concerns. (Tr. 244, 1090). Since Babcock briefed Vaccari on March 10 about what occurred during that day’s meeting with Clapp (Tr. 1087), I infer that Vaccari knew that Clapp wanted to reiterate her previously expressed safety and communication concerns about Fischer’s truck-dumping policy.

 

Finally, Clapp engaged in protected activity when she and Whitted met with Vaccari on March 12 about the issues raised with safety representative Tompkins, including the fact that they were tired of being “dragged” into the back room and tired of being unable to talk about safety. (Tr. 250). Clapp’s testimony and Vaccari’s notes confirm that Clapp homed in on her prior protected activity by reiterating her safety concerns about turning around loaded coal trucks in the slot and dumping them at the face and questioning why Respondent was engaged in such a procedure. (Tr. 254, R. Ex. 20). Clapp told Vaccari that Robinson and Fischer were angry with her for expressing her safety concerns to Vaccari and Oistad after Robinson had told the crew that if they had a problem with the truck-dumping procedure take it to Colin Marshall. (Tr. 254, 256). Clapp and Whitted also discussed the safety incentive game and the fact that Robinson and Fischer discouraged and intimidated employees in back-room meetings from raising safety concerns. (Tr. 254, 256, 577-79). In fact, Vaccari’s notes described the March 10 meeting with Clapp as an “Intimidation Mtg” in which an “extremely angry” Fischer allegedly told Clapp “you make me sick always talking safety” and using “safety to get her way.” (R. Ex. 20, p. 1).

 

On this record, there can be no doubt that Clapp engaged in ongoing, extensive, protected activity for herself and on behalf of other miners when she made repeated safety complaints to Cordero management and the safety department.

 

B. Adverse Action

 

Vaccari, Clemetson, Colby, Babcock, Fischer and Robinson met on March 17 and decided to recommend Clapp’s termination for alleged insubordination. (Tr. 679, 785, 959, 1050-51, 1105-06, 1137-38). Vaccari told the group about Clapp’s [and Whitted’s] complaints. (Tr. 959, 966, 1101-02, 1105-06). It is undisputed that on March 18, 2010, Cordero terminated Clapp’s employment at the Cordero mine.

 

 When Clapp arrived at the corporate office on March 18, Clemetson escorted her to the meeting room where Colby and Fischer were present, handed her a termination letter (R. Ex. 1) signed by Colby, and told her she was terminated. (Tr. 258) Clearly, Cordero took adverse action against Clapp by discharging her after 28 years of service.

 

C. Motivation

 

In Chacon, as recently reaffirmed in Turner, the Commission reiterated the well-established principle that “[d]irect evidence of motivation is rarely encountered; more typically, the only available evidence is indirect.” Turner, 33 FMSHRC, slip op. at 9, citing Chacon, 3 FMSHRC at 2510. Consideration of indirect evidence involves the drawing of reasonable inferences from the facts of record, and circumstantial evidence and reasonable inferences drawn from it may be used to sustain a prima facie case. Turner, 33 FMSHRC, slip op. at 9, citing Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 1982), citing Chacon, 3 FMSHRC at 2510-12.

 

The record contains ample reliable evidence to support a conclusion that Cordero’s termination of Clapp was motivated by her protected activity. In reaching this conclusion, I rely primarily on the following indicia of Cordero’s discriminatory intent: (1) Cordero’s knowledge of Clapp’s protected activity; (2) the animus demonstrated by Cordero, and particularly her immediate supervisor Fischer, towards Clapp’s protected activity; (3) the very close proximity in time between Clapp’s most recent protected activity involving safety complaints related to the truck-dumping policy and Cordero’s adverse action; (4) and disparate treatment of Clapp.

 

1. Knowledge

 

The Commission has held that an “operator’s knowledge of the miner’s protected activity is probably the single most important aspect of a circumstantial case,” and that “knowledge . . . can be proved by circumstantial evidence and reasonable inferences.” Chacon, 3 FMSHRC at 2510. Here, however, I need not resort to any circumstantial evidence or inferences to find that Cordero knew of Clapp’s protected activity. As outlined above, Cordero supervisors, managers, and/or HR personnel involved in the termination decision had direct knowledge of Clapp’s ongoing protected activity, and most particularly, her safety complaints about Fischer’s truck-dumping policy on March 2, 3, 9, 10, and 12. In addition, when Vaccari, Clemetson, Colby, Babcock, Fischer and Robinson met on March 17 and each decided to recommend Clapp’s termination for insubordination (Tr. 679, 785, 959, 1050-51, 1105-06, 1137-38), Vaccari told the group about Clapp’s and Whitted’s March 11 complaints (Tr. 959, 966, 1101-02, 1105-06), which included Clapp’s reiteration of her March 3, 9, and 10 safety concerns about turning around and dumping loaded coal trucks back at the face, the fact that miners on the D crew were afraid to raise safety issues with Robinson and Fischer, and the fact that Fischer was angry with Clapp for discussing her safety concerns with Vaccari and Oistad. (Tr. 254-56, 577-79).

 

 2. Animus

 

Animus is but one of several indicia of discriminatory intent. Turner, 33 FMSHRC, slip op. at 12, n. 9. I find ample, reliable evidence of strong and continuing animus that Cordero management, and particularly Fischer, exhibited towards Clapp’s protected activity. In fact, the record contains overwhelming evidence that Clapp repeatedly raised safety concerns to Fischer and Robinson, and then to mine manager Vaccari and the safety department, based on the non-responsiveness of her immediate supervisors, and that Fischer demonstrated extreme and ongoing hostility toward Clapp’s protected activity, especially the fact that Clapp went to Vaccari with her safety concerns.

 

Back in November 2008, Clapp spoke with Vaccari about the fact that Robinson and Fischer sent a pickup for the crew with insufficient seatbelts. (Tr. 623-24, 1066). Vaccari asked Fisher to follow up on the issue. (Tr. 1067) Later that day, Halverson overheard Fischer discuss his follow-up after leaving Vaccari’s office: “That bitch, we’ll show her who’s boss. How dare her go over our heads. I can’t believe she did this and said anything to Joe.” (Tr. 612; cf. 625). I have drawn the inference that Fischer’s animus was directed at Clapp, who brought the issue to Vaccari’s attention. Thereafter, Fischer issued Clapp a last and final warning for failing to wear a seat belt (R. Ex. 4), but Clapp was the first miner to whom the automatic last and final policy was applied, there was no written documentation confirming the policy, it apparently was not enforced by Fischer against miner Lang, and Clapp’s warning followed closely on the heels of Fischer’s animus toward Clapp for bringing the issue to Vaccari’s attention, after Robinson and Fischer could not resolve Clapp’s concerns.

 

In February and March 2009, Clapp and two other miners raised safety concerns concerning impaired visibility regarding the placement of large monitor screens in RTDs. (Tr. 116-25, 134-38, G. Ex. 15-16). Fischer and Robinson responded they were not going to move the screens so “get used to it.” (Tr. 124, 127, 132). About March or April 2009, Clapp complained to Fischer and Robinson in safety meetings, in private discussion, and by radio, about rubber tire dozers that had been parked and left unmanned behind her shovel while the RTD operator ran other equipment, such as the blade. (Tr. 97-99). Fischer and Robinson told her they did not care what her concerns were, that it was not unsafe to park the unmanned dozer behind the shovel. (Tr. 99).

 

On July 13, 2009, after Clapp moved the MMC screen that was blocking her vision in the 103 shovel, Fischer yelled at her that the screen was a $20,000 piece of equipment that could not be moved. When Fischer put the screen back in the window of the shovel, Clapp said, “I’m safer than you Gerald. I’m safer than you. I have got to have vision in my shovel. I need to see. I’m responsible down here for not injuring anybody. I have to have my vision.” (Tr. 145). Fischer became furious and yelled, “You are not safer than me . . . . It doesn’t bother me, it doesn’t bother me at all. It doesn’t bother anybody but you. Bend over and look under it.” (Tr. 146-47). I have found that Clapp’s remarks were part of the res gestae of protected activity.

 

During the subsequent closed-door meeting in Fischer’s office, Fischer interfered with Clapp’s statutory rights by telling her that could make her work in uncomfortable situations (such as placing her in a track dozer at the top of a highwall) even if she thought it was unsafe. (Tr. 149-50). I have found that Fischer’s statement was a threat directed at Clapp for exercising her protected safety-complaint rights. See Secretary on behalf of Johnson v. Jim Walker Resources, 15 FMSHRC 2367, 2377 No. 1993) (Judge Fauver), citing Denu v. Amax Coal Company, 11 FMSHRC 317, 322 (1989), (Judge Melick); Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1479 (1982); and Secretary on behalf of Carson v. Jim Walter Resources, Inc., 15 FMSHRC 1993, 1996-1997 (1993) (Judge Maurer). I have further found that such interference under § 105(c) of the Act may be used as background evidence of animus, since not pled as a substantive complaint allegation. Similarly, during the same meeting, I have found that Robinson interfered with Clapp’s right to make safety complaints to Vaccari by telling her that she made them look stupid because she goes behind their back and always uses the “safety trump” to get her way. (Tr. 149). Under Moses, supra, such a statement has a reasonable tendency to interfere with Clapp’s right to go to mine manager Vaccari with her safety complaint and to raise safety complaints that she believes in good faith are warranted. Thus, I consider Robinson’s remark as further background evidence of animus.

 

Further evidence of animus occurred in the summer of 2009, when Miller heard Clapp call Robinson and Fischer for water because of dusty conditions in the pit, while Miller sat in their lead pickup. Miller heard Robinson tell Fischer, “I don’t care how many times she calls she is not getting a water truck.” (Tr. 520-21). The record further reflects that throughout 2009, and more often in the winter months of late 2009 and early 2010, Fischer and Robinson repeatedly ignored Clapp’s requests for water to control dusty conditions in the pit, forcing Clapp to shut down the coal run on two occasions. Other employees would go to Clapp with their concerns because they were afraid to call Fischer and Robinson for water. (Tr. 107-115) Once Clapp engaged in the work refusals and shut down the run, Fischer and Robinson immediately sent water. (Tr. 110).

 

A further inference of animus is drawn from events in January 2010, when Robinson and Fischer continued to dismiss Clapp’s ongoing safety concerns about unmanned rubber tire dozers parked behind her shovel. After Clapp spoke with safety representative McLaughlin and told him that she thought the practice had become deliberate because Clapp had raised her safety concerns with Fischer and Robinson earlier in the year, the rubber tire dozer was not parked unmanned behind Clapp’s shovel during day shifts when the safety department was present, but the practice continued on nights and weekends. (Tr. 104-105). Similarly, in January 2010, Clapp also spoke with safety manager Andrews about problems she was having getting water and asked for his assistance. Thereafter, Clapp received water on day shifts when the safety department was present, but had difficulty on nights and weekends when safety was not on site. (Tr. 111-12).

 

Further evidence of ongoing animus toward Clapp’s protected activity may be gleaned from the events in early and mid March 2010, shortly before Clapp’s March 18 discharge. As explained above, Clapp repeatedly raised safety concerns about turning around and dumping overloaded coal trucks back at the face. When the policy was first announced during the pre-shift meeting the evening of March, Robinson pre-empted Clapp’s unarticulated concerns by stating, “If you have a problem with it, take it to [CEO] Colin Marshall.” (Tr. 160, 561-62, 564, 757, G. Ex. 17 and 17A p. 2-3). At the end of the next shift, after Clapp complied with Robinson’s directive to dump Young’s truck back at the face and Clapp told Robinson that it was stupid and unsafe to turn loaded coal trucks around in the slot and dangerous to dump them back under the shovel (Tr. 172, 177; R. Ex. 18), Clapp told Vaccari that it was unsafe to turn around and dump loaded coal trucks in the uneven pit. (Tr. 182-83, 1115) Robinson and Fischer gave Clapp angry looks behind Vaccari’s back. (Tr. 185-86). Thereafter, after Clapp also told supervisor Oistad that it was unsafe to turn around trucks and dump coal down in the congested slot, particularly in light of recent truck accidents (Tr. 189, 1023-24), and after Clapp told Clark over the line-of-site channel radio on March 9 that Clark was going to have to dump her truck back at the face because Vaccari had not gotten back to her about her safety concerns (Tr. 192-95), Fischer began screaming at Clapp over the radio that he did not care what Vaccari said because it was his policy. (Tr. 193; cf. G. Ex. 17 and 17A, pp. 51). Fischer acknowledged that Clapp’s remarks really angered him. “So that really chapped me. I don’t know what Joe will come up with. I don’t know what his policy is.” (G. Ex. 17, G. Ex. 17A, pp. 51) As Fischer put it, “that was the straw that broke the camel’s back,” because it was Fischer’s decision, not Vacarri’s policy. (Id.).

 

Shortly thereafter, at the end of the shift on March 10, Fischer and Robinson summoned Clapp into another lengthy, closed-door meeting in Fischer’s office. Fischer told Clapp that he was angry that she had challenged the truck-dumping policy by throwing a fit over the radio and by undermining them through discussion of the issue with Vaccari and Oistad, activities that I have found protected. (Tr. 198, G. Ex. 17, G. Ex. 17A, pp. 2-10). Clapp tried to explain to Fischer the need to communicate her safety concerns to someone who would listen and not get so “pissed off” as to scream at her and threaten to make her work uncomfortable as Fischer did back on July 13, 2009. Fischer again told Clapp that he was not afraid to put her in an uncomfortable position. He further stated that she was not getting on board, that she “throws a lot of bullshit around,” that “sometimes what comes out of your mouth is yuck,” that he did not give a shit if Clapp had 28 years because Fischer valued safety also (G. Ex. 17A, pp. 11-15), and that Fischer did not give a shit what other crews were doing. (Id. at 250).

 

When HR representative Babcock eventually joined the meeting despite Clapp’s requests for Vaccari (Tr. 775, 819; G. Ex. 17A, pp. 28 and 35), Clapp explained to Babcock that Robinson and Fischer were mad at her for communicating her safety concerns to Vaccari. (G. Ex. 17A, pp. 36-38). Babcock told her, “Well in this case the way the policy is set …. then you go with what the policy is …. If you are told that you need to turn a truck around, that it’s overweight, then you do just that. And if the question is out there and it’s being looked at, you just trust that the powers that be are looking at it. But until you get word of, you know, you don’t have to do this anymore, continue with the policy as is.” (Id. at 39). Babcock further told Clapp that she should not broadcast her concerns to her supervisors over the radio as it could be viewed as questioning authority. (Id. at 40-42).

 

Cordero management expressed further animus toward Clapp’s protected activity when Fischer explained to Babcock that he was bothered by the fact that Clapp gave Robinson “a lot of feedback and flack on the radio,” and really got his “dander up” when she asked Oistad what his crew was doing, and told Vaccari that she had to light load the trucks. (Id. at 46-49). Fischer further explained that “the straw that broke the camel’s back” was the incident of March 9 when Clapp told Clark that Vaccari had not gotten back to her about the truck dumping policy. (Id. at 50-51). Robinson agreed with Fischer that as of March 9, Clapp still did not agree with the truck dumping policy and was intent on going to Vaccari, and that back on March 2, she “pulled a safety trump on me” by saying it was unsafe to dump at the face over the radio. (Id. at 52-53). When Clapp insisted to Fischer that she could talk to anybody she wanted concerning her safety concerns (Id. at 57), Fischer opined that Clapp had not learned a single thing during the meeting (Id. at 59), and Babcock admonished Clapp that questioning the policy over the radio and going outside the crew with her concerns was improper and undermined her supervisors’ authority, which he expected her to follow. (Id. at 60-61). When Clapp indicated that she was communicating her safety concerns and not undermining authority, and that Cordero focused on her for communicating her concerns when other crews were driving down the road and dumping at the hopper (Id. at 62-63), Babcock told Clapp that she needed to go through Robinson and Fischer with her safety concerns and they were sending her home with pay so she could come back the next day ready to go and finish up the conversation. (Id. at 67-68).

 

In these circumstances, Fischer, Robinson and even Babcock to a lesser extent were hostile to Clapp’s protected activities and I find that Clapp worked in an environment in which her immediate supervisors were pervasively hostile to her safety complaints. Since Babcock briefed Vaccari on March 10 about what occurred during the March 10 meeting with Clapp (Tr. 1087), I have inferred that Vaccari knew that Clapp wanted to reiterate her previously expressed safety and communication concerns about Fischer’s truck dumping policy when Clapp called Vaccari on March 11 to arrange a meeting with him on March 12, 2010. Moreover, Vaccari’s notes of the March 12 meeting with Clapp (and Whitted) describe the March 10 meeting with Clapp as an “intimidation meeting in which an “extremely angry” Fischer allegedly told Clapp “you make me sick always talking safety” and using “safety to get her way.” (R. Ex. 20, p. 1). As noted, Vaccari told Fischer and the rest of the management team about Clapp’s [and Whitted’s] complaints during the March 17 meeting to decide Clapp’s fate. (Tr. 959, 966, 1101-02, 1105-06).

 

Based on the totality of record evidence, I find that Cordero’s ultimate decision to terminate Clapp was based, in part, on Fischer’s, Robinson’s and Babcock’s recommendations and hostility toward Clapp’s ongoing protected activity, including that fact that even after the March 10 meeting, Clapp decided to again raise her safety concerns with Vaccari on March 12. Accordingly, I conclude that the ultimate decision to terminate Clapp was tainted by retaliatory animus for protected activity.

 

3. Temporal Proximity

 

As outlined above, Clapp’s most recent protected activity concerning her safety complaints over the truck-dumping policy occurred on March 2, 3, 9, 10, and 12. Cordero terminated Clapp’s employment during her week off on March 18. (Tr. 258; R. Ex. 1). Clearly, there is a significant coincidence in time between Clapp’s most recent protected activity, specifically her March complaints about the truck-dumping policy to Robinson, Fischer, Babcock, Oistad, Vaccari and the safety department, and the adverse action that Cordero executed by discharging her on March 18, before she returned to work on her next scheduled shift. See Sec’y of Labor on behalf of Williamson v. CAM Mining LLC, 31 FMSHRC 1085, 1090 (Oct. 2009) (finding “proximity in time” where the time between the protected activity and adverse action was three weeks); cf., Sec’y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34, 37-38, 43-44 (Jan. 1999) (finding temporal proximity despite 16-month gap between protected activity and adverse action). The fact that Cordero’s adverse action against Clapp so closely followed her most recent protected activity is itself evidence of an illicit motive. See, e.g., Turner, 33 FMSHRC, slip op. at 13, citing, Donovan v. Stafford Constr. Co., 732 F.2d 954, 960 (D.C. Cir. 1984) (two weeks between alleged protected activity and miner’s discharge is “itself evidence of illicit motive”).

 

4.         Disparate Treatment

 

Although the evidence of disparate treatment is somewhat equivocal given Clapp’s disciplinary history, as set forth in section II, B, 4, B, supra, I have found sufficient probative evidence to warrant the inference that Clapp was disciplined more harshly prior to her discharge than Christiansen and Eisenhauer because of Clapp’s ongoing safety complaints. Furthermore, with regard to Cordero’s affirmative defense that it would have disciplined Clapp for her alleged insubordination alone, I note that Eisenhauer told Robinson not to tell him what to do prior to damaging the dozer on June 13, 2009, and Eisenhuaer was not written up for insubordination. Finally, the evidence indicates, as Clapp explained to management during the heated March 10 meeting, that Fischer and Cordero were focused on Clapp in enforcing the truck-dumping policy. (see G. Ex. 17A, p. 62). I have found that D-crew driver Artz confirmed that he had taken an overloaded haul truck to the hopper, that management was aware of it through the MMC system, and that Cordero did not discipline Artz for his actual refusal to follow instructions. (Tr. 422-23). Similarly, Whitted credibly testified that Robinson was aware that Young took an overloaded truck to the hopper and Respondent introduced no evidence that Young received any discipline for the failure to follow Robinson’s instructions to dump back at the face. (Tr. 581-83). Moreover, Oistad’s crew sent overloaded trucks to the hopper when conditions in the pit were not favorable for dumping. (Tr. 190).

 

D. Prima Facie Case

 

In light of my findings above that Clapp engaged in protected activity, that Cordero terminated her, and that her discharge was motivated by her protected activities, I conclude that the Secretary established a strong prima facie case of unlawful discrimination under the Mine Act. Accordingly, I reaffirm my denial of Cordero’s motion to dismiss made at the end of the Secretary’s case. (Tr. 628).

 

 

E. Cordero’s Affirmative Defense

 

An operator may rebut a prima facie case of prohibited discrimination by showing either that no protected activity occurred, or that the adverse action was in no part motivated by protected activity. See Robinette, 3 FMSHRC at 818, n.20. Given my findings above, Cordero has failed to rebut the prima facie case.

 

Although Cordero cannot rebut the Secretary’s prima facie case, it may nevertheless defend affirmatively by proving that it also was motivated by Clapp’s unprotected activity and that it would have taken the adverse action for the unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the Commission’s Pasula-Robinette test).

 

The Commission has explained that a defense should not be examined superficially or approved automatically once proffered. Turner, 33 FMSHRC, slip op. at 15, citing Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). Rather, in reviewing an affirmative defense, judges must determine whether it is credible and, if so, whether it would have motivated the particular operator, as claimed. Id., citing Bradley, 4 FMSHRC at 993. Pretext may be found where the asserted justification is weak, implausible, or out of line with the operator’s normal business practices such that it was seized upon to cloak discriminatory motive. Chacon, 3 FMSHRC at 2516; see also Turner, 33 FMSHRC, slip op. at 15, citing Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing Haro, 4 FMSHRC at 1937-38).

 

In Turner, the Commission analyzed the issue of pretext in the context of other federal discrimination statutes, and concluded that a complainant may establish that an operator’s explanation is not credible by demonstrating either: (1) that the proffered reason has no basis in fact; (2) that the proffered reason actually did not motivate the adverse action; or (3) that the proffered reason was insufficient to motivate the adverse action. Turner, 33 FMSHRC, slip op. at 15, citing Madden v. Chattanooga City Wide Service Dep’t., 549 F.3d 666, 675 (6th Cir. 2008) (citing Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)), overruled on other grounds, Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir. 2009) (emphasis in original)); McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993). The first type of showing consists of evidence that the proffered basis for the complainant’s discharge never happened, i.e., that it was factually false or did not exist. Turner, 33 FMSHRC, slip op. at 15, citing Manzer, 29 F.3d at 1084. The third type of showing generally consists of evidence that other miners were not fired even though they engaged in substantially similar conduct that allegedly motivated the discharge of complainant. Both types of rebuttal are direct attacks on the credibility of the operator’s proffered motivation for firing the miner. Turner, 33 FMSHRC, slip op. at 15. By contrast, under the second type of showing, the complainant admits the factual basis underlying the employer’s proffered explanation and further admits that such conduct could motivate the adverse action (dismissal). The complainant, however, attacks the credibility of the proffered explanation indirectly, by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the operator. Put differently, the complainant argues that the sheer weight of the circumstantial evidence of discrimination makes it “more likely than not” that the operator’s explanation is a pretext. Id.

Applying these principles, I find that Cordero failed to demonstrate that Clapp actually was insubordinate. In addition, even assuming arguendo that Clapp was insubordinate, I further find that Cordero failed to demonstrate that Clapp would have been fired for insubordination regardless of her protected activity.

Cordero’s primary defense is that Clapp was fired due to her insubordination for failing to report for a scheduled meeting on March 11, 2010. I have found that no specific meeting was set for March 11, 2010 at the end of the long, emotional meeting on March 10, just a continuation of the discussion when Clapp reported for work. Babcock’s statement at the end of the March 10 meeting was ambiguous. He told Clapp, “You can take the day. Think about it, and then come in tomorrow ready to go. We’ll finish up the conversation tomorrow, and then, you know, and go from there. (G. Ex. 17A, p. 67-68). In fact, Babcock conceded that he did not set a specific meeting place, time or agenda, nor specify who would attend. Rather, he just told Clapp to report for work at the normal time. (Tr. 1054).

More importantly, I have credited Clapp’s testimony that she had Fischer and Vaccari’s permission to take a floater. Thus, when Clapp initially told Fischer she was taking a floater, Fischer told her, “you can’t we got meetings.” Clapp said, “Gerald, I did not know that, I am taking a floater.” Fischer said, “Okay, fine,” and hung up. (Tr. 247). In addition, Vaccari’s notes from his March 12 meeting with Clapp and Whitted confirm that Clapp told Vaccari that Fischer did not say that Clapp could not take a floater on March 11, rather Fischer said “OK, goodbye.” (Tr. 1096; R. Ex. 20).

Furthermore, I have found that Clapp already had obtained Vaccari’s tacit approval earlier that morning to take a floater given her emotional state after the March 10 meeting and the fact that she was up all night and could not sleep. Thus, when Clapp called Vaccari at 5 a.m. on March 11 to schedule a meeting for the next day, Clapp told Vaccari that she had been up all night and that she needed to take a floater. Vaccari told Clapp that he understood. (Tr. 244, 1090-91, 1116-17, 1120-21). After Clapp subsequently spoke with Fischer that day, Vaccari informed Fischer that Clapp had called Vaccari earlier in the day to schedule an appointment and said she needed a floater, and that Vaccari understood. (Tr. 1091-92).

Based on the totality of record evidence evincing Fisher’s animus toward Clapp’s protected contact with Vaccari about her safety concerns, I infer that Fischer was upset when he learned that Clapp had again contacted Vaccari after her March 10 protected activity, had requested a floater, and had scheduled a meeting with Vaccari for March 12. I have found that Fischer then enlisted the aid of HR Director Clemetson in an effort to seize upon Clapp’s failure to report as a pretext for insubordination. According to Fischer, when HR Director Clemetson arrived at the mine that morning, Fischer told her that “we had a meeting set up that morning for 7:00 and that Cindy called in and told me she was taking the day off.” (Tr. 951). According to Clemetson’s version, however, Fischer told her “that Cindy had not shown up for a meeting that they had scheduled that morning, that she had called in and asked for a floater, and he told her that she needed to come out to her meeting. And she told him no, and he let her know that HR would call her.” (Tr. 1135). As noted, I have credited Clapp’s testimony, that Fischer ended the conversation by saying “Okay, fine,” and that Clapp already had obtained Vaccari’s tacit approval to take a floater.

 

Clemetson called Clapp in Babcock’s presence and left a message directing Clapp to report to the mine site by 9 a.m. for the meeting. (Tr. 1047, 1136, 1143). It is undisputed that Clemetson never spoke to Clapp on March 11. In addition, I have credited Clapp’s testimony that she never received the message. (Tr. 247-48, 251). Further, I am persuaded by the Secretary’s argument on brief that given Clapp’s virtually unblemished absence and attendance record over 28 years, she was not the type of miner who would deliberately ignore or fail to show up for a scheduled meeting, particularly on two last and final disciplinary warnings. (Sec. Br. at 37). Moreover, the two-hour time frame that Clemetson gave this long-tenured miner to report appears unreasonably short, and unlike the call that Clemetson placed to Clapp’s home on March 18 to summon Clapp to the eventual discharge meeting, there is no evidence that Clemenson asked Clapp to confirm receipt of the message that she left on March 11. In these circumstances, I agree with the Secretary’s further argument that if it was so critical to meet with Clapp on March 11, Cordero could have called her later in the day to determine whether she received Clemetson’s message. (Sec’y Br. at 37-38). There is no evidence that Cordero did so.

Rather, on the afternoon of March 11, 2010, Vaccari, Clemetson, Babcock, Colby, Fischer and Robinson met to discuss Clapp. Vaccari told the group about Clapp’s call to Vaccari earlier that morning about taking a floater and that Vaccari had scheduled a meeting with Clapp the next day, Friday, March 12. Tr. 1047-48, 1137. Vaccari decided that no disciplinary decision would be made on March 11 because Vaccari wanted to meet with Clapp on Friday, March 12. (Tr. 963, 1048, 1137).

On March 12, when Clapp and Whitted met with Vaccari, Clapp homed in on her safety concerns about turning around loaded coal trucks in the slot and dumping them at the face (Tr. 254, R. Ex. 20). She further told Vaccari that Robinson and Fischer were angry with her for expressing her safety concerns to Vaccari and Oistad after Robinson had told the crew that if they had a problem with the truck dumping procedure, take it to Colin Marshall. (Tr. 254, 256). Clapp and Whitted discussed the safety incentive game and the fact that Robinson and Fischer discouraged and intimidated employees in back-room meetings from raising safety concerns. (Tr. 254, 256, 577-79). In fact, Vaccari’s notes described the March 10 meeting with Clapp as an intimidation meeting in which an “extremely angry” Fischer allegedly told Clapp “you make me sick always talking safety” and using “safety to get her way.” (R. Ex. 20, p. 1).

 

 I find that Clapp’s March 12 protected safety complaints to Vaccari, which enlisted the aid of another co-worker, was the straw that broke the camel’s back, and motivated the Respondent to discharge Clapp. The fact that Cordero retaliated against Whitted on March 19 by taking her crew training position away and by telling her that she no longer had a working relationship with Fischer and Robinson, strengthens my ultimate finding of Cordero’s unlawful motivation toward this protected activity. (Tr. 580, 594). In addition, I have found that Clemetson knew that Clapp was claiming that she had never received Clemetson’s March 11 message, and nevertheless went ahead and discharged her anyway on March 18, 2010, without any additional investigation.

 

Finally, Cordero’s managers failed to present a consistent and convincing rationale for their recommendations that Clapp was insubordinate. Robinson, Fischer and Colby recommended termination for insubordination because Clapp purportedly refused to come to work for the meeting on March 11. (Tr. 709, 728, 788, 967). In fact, Colby, who signed the discharge letter ( R. Ex. 1), limited the discharge to this justification. (Tr. 724-25). Babcock, by contrast, recommended termination for insubordination because Clapp attempted to send trucks to the hopper, challenged Robinson over the radio regarding the truck dumping procedure, went to another supervisor with her concerns, allegedly failed to acknowledge that Robinson and Fischer were her supervisors during the March 10 meeting, and allegedly failed to post for the March 11 meeting that Babcock purportedly had scheduled. (Tr. 1051). Clemetson supported the recommendation for termination because Clapp allegedly disregarded the instructions of her supervisor to dump overloaded coal trucks back at the face and allegedly continued to show disrespect for the instructions of her supervisors by failing to show up for the March 11 meeting. (Tr. 1139-40). Vaccari agreed with his leadership team because Clapp allegedly refused to listen to her supervisor and failed to show up for the March 11 meeting. (Tr. 1106-07).

It is well established that where an employer provides an inconsistent or shifting rationale for its actions, a reasonable inference can be drawn that the reason proffered is a pretext designed to mask an unlawful motive. See e.g., GATX Logistics, Inc., 323 NLRB 328, 335 (1977). Cordero’s purported reasons for the alleged insubordination were either factually false, or not in fact relied upon, because the circumstantial evidence of discrimination makes it more likely than not that Cordero’s insubordination defense is pretext. Id. See, e.g., Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); accord: Shattuck Denn Mining Corp., v. NLRB, 362 F.2d 466 (9th Cir. 1966). As explained above, Clapp did not refuse to attend a scheduled meeting on March 11. Nor did Clapp send trucks to the hopper that were overloaded or disregard the instructions of her supervisor to dump overloaded coal trucks back at the face. Clapp challenged the directives as unsafe over the radio, but complied with the directives, and then went to Vaccari and Oistad with her safety concerns, which, contrary to Babcock and Clemetson, was not insubordination, but part of her protected activity.

Nor did Clapp fail to acknowledge that Robinson and Fischer were her supervisors during the March 10 meeting. On the contrary, Clapp clearly acknowledged her supervisors’ authority at the end of the March 10 meeting. (G. Ex. 17A, p. 59, 65, 68-69). In fact, at the end of the meeting, Clapp acknowledged the need to communicate through Robinson and Fischer, explained that she does follow the chain of command, and explained that she did not come to them with the truck-dumping procedure because she was told to go above them. She credibly testified that there had been no attempt to undermine them, just a breakdown of communication. (Id. at 68; Tr. 238). Clapp agreed that she would follow procedure and the meeting ended. (Id. at 69).

I find that Clapp was not insubordinate during the March 10 meeting, and that her remarks and behavior essentially were provoked by Fischer and fell within the res gestae of her protected activity. The Commission has recognized that an employer cannot provoke an employee into an indiscretion and then rely on that indiscretion as grounds for discipline. Generally, an employer may not provoke an employee to a point where the employee commits an act of insubordination and then rely on that insubordination to discipline the employee. See e.g., Vought Corp., 273 NLRB 1290, 1295 n.31 (1984), enfd. 788 F.2d 1378 (8^th Cir. 1986); Reading Anthracite Co., 22 FMSHRC 298, 306 (Mar. 2000). For example, in Trustees of Boston Univ. v. NLRB, the First Circuit stated, “at least so long as the employee's indiscretions are not major, it is immaterial that the employee's misconduct would constitute a sufficient reason for discharge if the actual reason for discharge is the employee's participation in [protected] activity.” 548 F. 2d. 391, 393 (1st Cir. 1977). That court also indicated that employees are to be given some leeway for impulsive behavior, and that “the leeway is greater when the employee's behavior takes place in response to the employer's wrongful provocation.” (Id). In fact, the Fourth Circuit has recognized that “[t]he more extreme an employer's wrongful provocation the greater would be the employee's justified sense of indignation and the more likely its excessive expression.” NLRB v. M & B Headware Co., 349 F.2d 170, 174 (4^th Cir. 1965).

Here, I find that Clapp’s statements during the March 10 meeting were provoked by Fischer’s intemperate language and anger that Clapp had gone to Vaccari and Oistad with her safety concerns. Thus, I find that Clapp’s behavior and remarks in the March 10 meeting were provoked by Cordero’s response to her protected activity. Considering the particular facts and circumstances of this case, when viewed in light of the totality of the record evidence, I conclude that Clapp’s conduct during the March 10 meeting was within the scope of the “leeway” the courts and the Commission grant to a miner whose “behavior takes place in response to [[an] employer's wrongful provocation.” Trustees of Boston University, 548 F. 2d at 393. Since Clapp’s behavior during the meeting was provoked and excusable, Cordero’s insubordination defense based on any behavior or remarks during the March 10 meeting must also fail.

Finally, Clapp was not insubordinate when she and Whitted met with Vaccari on March 12 to convey serious safety concerns. I find that such conduct was the epitome of protected activity and was the final event that precipitated her discharge.

In sum, it has long been recognized that where an employer's reasons are false, it can be inferred “that the [real] motive is one that the employer desires to conceal—an unlawful motive—at least where … the surrounding facts tend to reinforce that inference.” Shattuck Denn Mining Corp., v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); see also Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (200)). I conclude that the surrounding facts in the extant record support the inference that Cordero’s various explanations that it discharged Clapp for insubordination are pretext seized upon as a convenient rationale to mask its unlawful motivation. In these circumstances, Cordero has failed to establish that it would have discharged Clapp for insubordinate conduct even in the absence of her ongoing and extensive protected activity. Having found that the proffered rationale for Clapp’s discharge is not credible and was merely a pretext for termination because of her protected safety complaints, I find that the Secretary has sustained her burden of proving by a preponderance of the evidence that Clapp’s termination on March 18, 2010 was in violation of section 105(c)(1) of the Act.

 

                                    IV. Back Pay Issues

 

Clapp’s back pay period runs from the date of her termination on Thursday, March 18, 2010 until her temporary economic reinstatement effective Thursday, June 24, 2010. The amount of back pay due is ordinarily equal to the amount of gross pay the miner would have earned but for the discrimination, less actual net interim earnings, plus interest, reduced in appropriate circumstances by a willful loss of earnings when the operator raises the affirmative defense that the miner has failed to diligently search for alternative work. Gabel Stone Co., 23 FMSHRC 1222, 1224 (Nov. 2001). The operator bears the burden of proof on the affirmative defense of failure to mitigate damages, and the determination of what constitutes a reasonable effort to find alternative employment is based on the factual background peculiar to each case. Id. at 1225, citing Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984).

 

In an effort to meet its burden of proof on cross examination of Clapp, Respondent established that since Clapp was terminated on March 18, 2010, Clapp “applied” for work at one other mine in the Powder River Basin. (Tr. 377). Respondent’s counsel then asked Clapp, “Otherwise, you’ve not seen any jobs that pay you at the same pay rate, is that right?” Clapp responded, “I have looked yes, but not interviewed.” Counsel then asked, “So no other but the one application,” to which Clapp responded, “Correct.” (Id.). The court then asked when Clapp made that application, and Clapp responded on April 27, 2010. The court further asked whether Clapp applied anywhere else after she received the order of temporary economic reinstatement. Clapp responded, “I have looked for work but not applied.” Respondent’s counsel then ended cross examination of Clapp. (Tr. 378).

 

On redirect examination, Clapp testified that she does not have a computer and went to Workforce in Gillette, Wyoming to help her look for jobs that were in the Powder River Basin. Through that effort, she found out that Buckskin Mine was hiring equipment operators and truck drivers. Clapp further testified that she had three days to send in a resume and she was called for an interview on April 27, 2010. Tr. 382. When asked how the interview went, Clapp testified that it was a good interview, but uncomfortable because Clapp had to disclose on the application form that she had a job for 28 years but was no longer employed there. Tr. 382-83. Clapp further testified that the first question asked in the interview was why she was not working there anymore and Clapp told the interviewer that she had been fired, as advised to do by Workforce. When the interviewer asked why Clapp had been fired, Clapp responded that she had worked 28 years at a mine with over 23 bosses and she ran into two bosses that she could not please. Clapp testified that she has not seen any openings for shovel operator positions in the Basin. Tr. 383. She further testified that such jobs are normally filled through an internal process when a miner bids to move up into the position. Tr. 384.

 

On re-cross, Clapp confirmed that she had been looking for other positions at mines during the back pay period and she did not limit her search to shovel operator positions since her interview with Buckskin mine was not for a shovel operator position. Tr. 396-97.

 

Respondent argues on brief that Clapp is not entitled to an award of back pay because she failed to mitigate her damages and incurred a willful loss of earnings by failing to make a reasonable, good-faith effort to find alternative employment. Respondent cites none of the facts from the testimony outlined above, other than the fact that Clapp has only applied for one job since her termination and has not seen openings for shovel operators in the Basin. Because Clapp has not applied for more than one job since her termination, Respondent argues that she has not made a reasonable, good-faith effort to find new employment. R. Br. at 36.

 

I reject Respondent’s argument, which conflates employment application with reasonable efforts to search for alternative employment. I find that Respondent has failed to meet its burden of proof on the affirmative defense that that Clapp failed to mitigate damages. On consideration of all the evidence, Respondent has failed to establish that Clapp failed to conduct a reasonable search for comparable employment or sustained a willful loss of earnings. Rather, the credited testimony of Clapp establishes that she “lowered her sights” beyond shovel operator positions and made a reasonable search for alternative mining work in the local mining community during the back-pay period in an effort to mitigate back-pay liability, but was unsuccessful under difficult and trying circumstances. Based on her reasonable efforts, I find that Clapp is entitled to full back pay for 14 weeks.

 

            V. Civil Penalty Principles

 

The Commission outlined the parameters of its responsibility for assessing civil penalties in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:

 

The principles governing the Commission's authority to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission "authority to assess all civil penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act requires that, "[i]n assessing civil monetary penalties, the Commission [ALJ] shall consider" six statutory penalty criteria: [1] the operator's history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator's ability to continue in business, [5] the gravity of the violations, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation. 22 FMSHRC at 600, citing 30 U.S.C. § 820(I) (italics added).

 

In keeping with this statutory requirement, the Commission has held that "findings of fact on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge's penalty assessment for a particular violation is an exercise of discretion, which is bounded by proper consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000).

 

In exercising this discretion, the Commission has recently reiterated that a judge is not bound by the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). In addition, the de novo assessment of civil penalties does not require "that equal weight must be assigned to each of the penalty assessment criteria." Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). However, when a penalty determination “substantially diverge[s] from those originally proposed, it behooves the . . . judge[] to provide a sufficient explanation of the bases underlying the penalties assessed. Spartan Mining, 30 FMSHRC at 699. Otherwise, without an explanation for such a divergence, the “credibility of the administrative scheme providing for the increase or lowering of penalties after contest may be jeopardized by an appearance of arbitrariness.” Sellersburg, 5 FMSHRC at 293.