FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

December 7, 2012

DECISION

Appearances:  Bradley R. Ashby, Nortonville, Kentucky, pro se, Complainant;

Jeffrey K. Phillips, Esq., Steptoe & Johnson PLLC, Lexington, Kentucky, on behalf of the Respondent.

Before:            Judge Tureck

            This case is before me upon a complaint of discrimination filed by Bradley Ashby (“Ashby”) against Ohio County Coal Company (“Ohio County”) pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977 (the “Act” or “Mine Act”), 30 U.S.C. §815(c).

            Ashby’s employment as a ram car driver at the Freedom Mine ended on March 29, 2011, just his third day of work at the mine. Tr.105. Within a few days of his termination, Ashby filed a complaint with the Mine Safety and Health Administration (“MSHA”) alleging discrimination under section 105(c) of the Mine Act. Id. By letter dated April 11, 2011, MSHA informed Ashby that his complaint of discrimination was assigned to a special investigator named Kirby Smith. Ex. C-2. Subsequently, on April 29, 2011, MSHA informed Ashby that, after an investigation, it had determined that a violation of section 105(c) of the Mine Act did not occur. Ex. R-1. Ashby, through an undated letter, which was received by the Commission on June 27, 2011, initiated this case under section 105(c)(3) of the Act, 30 U.S.C. §815(c)(3). Ex. R-2.

            A hearing was held in Owensboro, Kentucky on January 19, 2012 pursuant to section 105 of the Act, 30 U.S.C. § 815. Subsequent to the hearing, the parties submitted briefs and I have considered their arguments in the course of this decision.

            Ashby alleges that a continuous miner operator was belittling him, which led to a hostile work environment. In addition, he alleges that Ohio County was operating the ram cars in a hazardous and unsafe manner. Furthermore, he alleges that he became sick due to the hostile work environment, stopped working prior to the end of his shift, and was then fired.

            Ohio County denies that Ashby’s actions were related to a protected activity under §105 (c). Instead, it claims that Ashby quit by voluntarily abandoning his job two hours before his shift was scheduled to end, while he was still a 90-day probationary employee, and then falsely claimed to management that he was sick in order to attempt to keep his job.

            For the reasons stated below, Complainant’s discrimination claim is dismissed.

Findings of Fact and Conclusions of Law

            Bradley Ashby, who was 41 years old at the time of the hearing, began working at Freedom Mine on March 26, 2011 and prior to that had worked at various mines throughout his career since he was 19 years old with intermittent breaks in between. Tr. 19-22. Prior to working at Freedom Mine, Ashby worked at Armstrong Coal Company’s Big Run Mine for two years as a ram car driver. Tr. 21. He had never worked on ram cars before his time at Armstrong Coal. Tr. 64. He had operated a shuttle car for four years at the Vision Mine prior to joining Armstrong Coal and he testified that ram cars and shuttle cars are completely different. Tr. 21, 64.

             During his time as a ram car driver at Armstrong Coal, Ashby was not a decision maker on the routes required for the ram cars. Tr. 65. The decision about the types of routes required for ram cars were made before Ashby started working at Armstrong Coal. Tr. 66. In addition, Ashby was not a mining engineer and had never taken an engineering class. Tr. 66. Ashby was terminated from Armstrong Coal in April of 2010 and was unemployed for 11 months before he was hired by Ohio County. Tr. 21-22; 67. He worked for close to ten years in the coal mines prior to working in Ohio County’s Freedom Mine. Tr. 22. Ashby commenced his employment at Freedom Mine as a 90-day probationary employee and received the employee policy manual. Tr. 67, 70.

            Ashby commenced his employment at Freedom Mine as a 90-day probationary employee and received the employee policy manual. Tr. 67, 70. On Saturday, March 26, 2011 at 7:00 a.m., Ashby started working at Freedom Mine. Tr. 23, 77. Freedom Mine operates two units simultaneously, with each unit having a first, second, and third shift, the third shift being a non-production maintenance shift. Tr. 33; 240. Ashby met with the safety director, Dennis Travis, and received safety training for about 3 or 4 hours. Tr. 23-24; 231. Afterwards, he was taken underground, was shown a ram car, and was asked if he knew how to drive it, to which he said he did. Tr. 24. The man who brought him underground to Unit 2, Bill Barnett, left with the two other new employees that had come underground with Ashby. Tr. 27; 231.

            Ashby attempted to operate the ram car but had difficulty because the ram cars he was used to operating at Armstrong Coal’s Big Run Mine had directional switches that were placed at a different location from the ram cars at Freedom Mine. Tr. 27. Someone came and explained to him how to operate the directional switch and he proceeded onto the unit. Id. However, he continued to have difficulty because the ram car kept stalling. Id. He testified that no one explained to him for two days what he needed to do to stop the stalling. Id. He further testified that he overheard on the radio someone say, “Don’t you think you ought to task train the new guy?”, but he states he was never task-trained by the face boss, the superintendent, or the assistant mine foreman, although they all knew that he was having problems. Tr. 27-28. Ashby testified that for the rest of the shift he attempted to learn how to properly operate the ram car. Tr. 28. He added that he asked the face boss on the opposite unit to show him how to operate the ram car and was allegedly told by him that every unit on every shift operated in a different manner, which Ashby believed to be a hazard. Tr. 28-29.

            According to Ashby, having two units operating on two production shifts allowed for four different ways to operate the ram cars. Tr. 33. He further testified that he observed the other ram car drivers operating on the beltline through four or five breaks of curtains, all backwards, which made them blind to pedestrians. Tr. 30.

            Sometime during his shift, Ashby testified that he went to David Bryant, the face boss in his unit, and told him that he knew a “much better way” of operating the ram cars. Tr. 80. He admitted at hearing that he never told Bryant that he knew a “much safer way” to operate the ram cars. Tr. 81. Bryant allegedly responded, “Well, it works pretty good . . . when everybody knows what’s going on.” Tr. 31. Ashby then testified that he spoke to the lead car driver, Ray Carroll, and said to him that he knew of a much better way of operating the ram cars, to which Carroll allegedly said “Not down here you don’t.” Id. Ashby testified that the better method he believed was to drive forward, not backwards, in order to allow for better visibility of pedestrians. Tr. 31.

             Subsequently, Ashby was chastised by Jerry Carr, the continuous miner operator in Unit 2, who told him, “You blocked these cars twice. If you can’t do it any better, take your car outby and park it.” Tr. 82. Ashby testified that he was confused by the operation of the ram cars and told Carr that it was his first day at work. Id.

            On Monday, March 28, 2011, Ashby reported for his second day of work at the mine. He had a conversation with Bob Bosch, the general manager, and did not mention any safety issues to him. Tr. 84. Instead, he said “I guess I don’t know driving cars all that well the way I told you because I don’t know, you know, how much or how they are doing it down there. I don’t understand the routes.” Id. That day, Ashby was put in with Unit 1 on the first shift, which had a completely different crew from the one he had worked with on Saturday. Tr. 85. Bill Evans was his face boss on this unit and Ashby observed what he considered negligent operation of the ram cars. Tr. 35. Ashby testified that he did not fully understand the operation of the ram cars in the unit but he believed that the miners were operating the ram cars negligently because they were operating the cars differently from how he would have done it. Tr. 36. As the second day progressed, Ashby was still having difficulty with the ram car so a mechanic was called to look over the car. Tr. 38. While this was being done, the face boss, Bill Evans, told him “If you don’t know what to do, take your car outby, park it, come up here, and watch the car drivers.” Tr. 84. Ashby testified that he went up to observe and was there for no more than 30 seconds before he was told by Evans to get back into his ram car. Tr. 86. Ashby continued to have problems and the mechanic went back to working on his ram car while Ashby told him about the problems that he was having. Tr. 86.

             Ashby was told that nothing was wrong with the ram car after another mechanic got in his ram car and drove it around without any problems. Tr. 87-88. At this time, a younger miner approached Ashby and told him to let go of the steering stick in order to prevent the ram car from stalling. Tr. 38, 88. Ashby testified that his difficulty was caused because he did not know how to operate a Stamler ram car, which was the only type of ram car used at Freedom Mine. Tr. 87. When he came aboveground, Ashby did not speak to a supervisor about the problems he was having that day with the ram car. Tr. 39-40; 89. He also did not raise the alleged safety issues that he saw with Evans. Tr. 78-79.

            On Tuesday, March 29, 2011, Ashby was back on Unit 2. When he got off the mantrip, Ashby believed that there was a group of men whispering amongst themselves about him. Tr. 91-92. He testified that Aaron Farmer, a production analyst, was sent down with him to help him understand how to operate the ram cars in the unit and was there for four or five hours. Tr. 37, 92. Ashby alleges that the ram car drivers completely changed the way that they had operated the ram cars from the prior two days that he had been in the mine, operating them the same way that he had for the two years he worked at Armstrong Coal. Tr. 37-38. He believed that this was how Ohio County actually wanted the work done and the ram car drivers were only following company protocol because the production analyst was around. Tr. 41. Ashby alleges that his car was able to transport more coal than the three other cars around him combined and that he was running the whole route by himself. Tr. 93. After Farmer left, Ashby alleges that David Bryant was not happy because Farmer was down in the mine and Ashby was performing so well. Tr. 94. He allegedly began to aggravate Ashby over the radio and call him names. Tr. 42. Ashby decided to slow his production down and only take two-thirds of a load of coal and to slow his speed to two-thirds of a normal speed. Tr. 96.

            Later on, Jerry Carr, the miner operator, allegedly said to Ashby, “Hey, you [m_____ f_____]. Don’t you ever [f___ing] pull away from this goddamn miner until I flag you. You have been spilling coal all day long.” Tr. 45. Ashby testified that he had not been spilling coal and that Jerry Carr made it up. Id. In response to Carr, Ashby told Carr that this had been the second time Carr had cursed at him and that there would not be a third time or else Ashby would crawl out of his car and show him what a real man was. Tr. 99. Ashby testified that he felt that his safety was threatened by Carr and that he believed that it was a hostile work environment, so he made the decision to leave. Tr. 45-46. Ashby told David Bryant that he wanted to leave and also told him that he felt that he was running the unit like a circus and Ashby wanted no part of it. Tr. 48. Bryant told Ashby that he could use a golf cart to get out of the mine, and Ashby rode the golf cart the one hour long ride out of the mine by himself. Tr. 49. There was about two hours remaining in the shift. Id.

            Once Ashby got outside, he testified that he came across the same miner that had brought him down in the mine the previous Saturday, Bill Barnett. Tr. 50. Barnett asked Ashby if he decided to quit and Ashby responded that he was sick and that he would be back the next day. Id. At hearing, when Ashby was asked if he had actually been sick, Ashby responded that he had been “disturbed.” Tr. 52.

            After taking a shower, Ashby went to speak to the general manager, Bob Bosch, and he apologized for coming out early because he was sick, that it would not be a habit, and that he would be back the next day. Tr. 52. Bosch responded “that wasn’t what he had heard.” Tr. 53. Ashby alleges that he protected Jerry Carr by not reporting him to Bosch and that Carr was nearby and was friendly to him when he saw Ashby talking to Bosch. Tr. 54. During this conversation, Ashby did not tell Bosch about any safety concerns or hazards. Tr. 102.

            Ashby was then told by Bosch that he would receive a phone call that night to let him know if they were willing to keep him or not. Tr. 55. When he did not receive the phone call, Ashby testified that he went back the next morning to talk to Bosch and was allegedly told that he was fired. Id. After being terminated by Bosch, Ashby told him that his uncle was a part of the FBI, that he was going to call him to come and talk to Bosch, and that he had “miner’s rights.” Tr. 56. Ashby testified that he does not have an uncle that was a part of the FBI and did not know why he told Bosch this. Tr. 57.

            Sometime following his termination, Ashby went to the Madisonville, Kentucky MSHA office and spoke to a secretary who took down his story. Tr. 58, 105-06. During his discovery deposition, Ashby stated that he did not go to MSHA until after his unemployment claim was denied. Tr. 105. In that claim, it is stated, among other things, that he “had made suggestions to the face boss on safer more productive way to travel . . . .” Ex. R-3. That was the only reference to anything having to do with safety in the MSHA complaint. The crux of the complaint was his confrontations with Carr, which he stated caused a hostile environment which led to his removing himself from the mine. Id. A few weeks after going to MSHA, Kirby Smith, the special investigator, interviewed Ashby at his father’s house and allegedly told him that he had a case. Tr. 59-60. A short time later, on April 29, 2011, Ashby received a letter stating that MSHA’s investigation has determined that no discrimination had taken place. Tr. 60; Ex. R-1. The letter informed Ashby that he had 30 days from the date of the letter to file a complaint on his own behalf. Ex. R-1. However, Ashby did not file a complaint until June 27, 2011. Ex. R-2. In his complaint to the Commission, Ashby made no mention of safety concerns and, instead, focused on the alleged hostile work environment. Tr. 110.; Ex. R-2. In his request for an appeal of MSHA’s decision, which was untimely filed, Ashby again did not allege any safety concerns. Ex. R-3.

            At the hearing, the first witness for Ohio County was Aaron Farmer. Tr. 124. Farmer, a superintendent at Freedom Mine, has been in the mining industry for 16 years holding various positions. Id. He spent much of his career helping to design the routes that the ram cars use at Freedom Mine. Id. He testified that he had never seen nor heard of any accidents that resulted from established ram car routes at the mine nor had anyone ever made a complaint to him that the ram car routes were hazardous or unsafe. Tr. 126. He also had never seen any ram car drivers backing through four or five curtains. Tr. 127. Farmer testified that he is familiar with the Big Run Mine and its routes since he helped open Big Run when it first started and that the Big Run Mine and Freedom Mine have different routes because they are very different mines. Tr. 125.

            On both Monday, March 28, 2011, and Tuesday, March 29, 2011, Farmer was underground in Freedom Mine as a continuous improvement coordinator and his job was to evaluate cable delay issues on different machines that were caused by spliced cables. Tr. 128. Farmer contradicts Ashby’s testimony by stating that on Tuesday, March 29, 2011, Bob Bosch did not assign him to examine the routes of the ram cars or to help Ashby with his understanding of the ram cars. Tr. 129. Instead, Farmer testified that he was there on both Monday and Tuesday to assess the cable delay issues. Tr. 128. In addition, Farmer testified that on both days the ram car routes were not different from the way he had helped plan the routes years earlier. Tr. 130. When Farmer went down the mine with Ashby on Tuesday, March 29th, he testified that he said to Ashby that he might give him a little help with the routes but that was not the reason he was sent down to the mine by Bosch. Tr. 131.

            The second witness for Ohio County Coal, William Evans, had been at Freedom Mine since January 1995. Since 2004, he has been a face boss and then a mine foreman. Tr. 135. According to his testimony, ram cars were first used in the mine in the late 1990's. Tr. 135-36. Evans had never seen nor was he aware of any accidents that resulted from the ram car routes used at Freedom Mine. Tr. 137. He also never received any complaints that the ram car routes were unsafe or hazardous. Id. He also testified that the ram car routes remained consistent throughout every shift unless there was a rare issue that prevented the ram car drivers from using their normal routes. Tr. 137.

            Evans also testified that there should never be a time where any ram cars are backing through four or five curtains and he never witnessed it happening. Tr. 156-57. He further testified that there may be a need to back the ram car into a continuous miner on a few unusual occasions but that there would have needed to be a turnaround spot for the ram car. Tr. 155-56. He also testified that he saw no difference with going “bucket first” (driving the ram car backwards) versus driving “battery first” (driving the ram car forwards) through the mine as a miner can see better bucket first due to the lack of a battery blocking his view. Tr. 158-59. In addition, a miner driving bucket first can see because the curtains are raised up by the ram car creating an opening in the curtain; further, the curtain is made out of clear vinyl. Tr. 159-60.

            On Monday, March 28th, Evans was filling in as face boss on Unit 1. Tr. 138. Evans testified that Ashby received an explanation about the routes that he was going to drive. Tr. 139. He further testified that Ashby was experiencing a lot of trouble and there were miners trying to help him and show him which route to go. Tr. 140-41. Evans witnessed Ashby going into a miner battery first when he was supposed to go into the miner bucket first, so he stopped Ashby and asked him to park his car. Id. Ashby told Evans that his ram car kept shutting off so Evans had two mechanics look at the ram car while they talked and watched how the ram cars were pulling. Tr. 141-42. Evans testified that the mechanics told him that there was no problem with the ram car. Tr. 142. He further testified that the person who had used the ram car in the prior shift had not had any issues. Tr. 143.

            Evans then testified that he spoke to Ashby as the ram car was being looked at and Ashby told him that the other three ram car drivers were going the wrong way. Tr. 143. Evans testified that he had worked at Big Run Mine before Freedom Mine and had helped get it started. Tr. 144. Evans never received any safety complaints from Ashby and testified that he tried to help him learn the routes by letting him watch a mechanic operate the ram car. Tr. 145-46. Evans did not observe any safety problems or near accidents while the mechanic operated the ram car. Tr. 147. After the mechanic evaluated the ram car and reported that there were no issues, Ashby decided to begin driving the ram car again and was advised to follow behind Dennis Gish, the most experienced ram car driver in the unit. Tr. 148. Ashby continued to have problems by getting lost. Tr. 149.

            The third witness, Dennis Gish, a 56 year old ram car driver who had been a coal miner for 26 years at the time of the hearing, helped open up the Big Run Mine. Tr. 161. He has been at Freedom Mine since its opening in 1995 and has operated the ram cars from the time they were first introduced at Freedom Mine in the late 1990's. Tr. 162. Only Stamler ram cars are used in Freedom Mine. Tr. 164. He testified that he had never heard of any accidents related to the way the ram cars were driven through the routes nor did he find the ram car routes unsafe. Tr. 165. He further testified that the routes remain consistent regardless of the day of the week or the shift with the exception of going into a face from the first cut to a second cut, when a change in routes is required. Id.

            Gish never witnessed ram cars backing through four curtains nor did Ashby ever express any safety concerns to him. Tr. 166; 169-70. On Monday, March 28th, Gish testified that Ashby was having trouble understanding the explanations from other miners over the radio of how to operate his ram car. Tr. 167-68. Will Evans, the foreman, asked Ashby to get out of his ram car and watch the other ram car drivers. Tr. 168. Evans then asked Ashby to follow behind Gish so that he could understand how to drive the ram car through the routes. Id. Ashby made a wrong turn and the other miners lost sight of him. Tr. 169. They kept communicating with him over the radio and Ashby found his way back on the route. Id. Ashby told Gish that the way he and the other ram car drivers were pulling through the mine was wrong, but Ashby never mentioned that he thought it was unsafe. Tr. 172-73. Gish explained to Ashby that the way the pulling was done at Freedom Mine was very different from other mines and that Ashby simply was not familiar with the system, which, according to Gish, was more aggressive and efficient than at other mines. Tr. 173. According to Gish’s testimony, what made driving the ram cars safe in the mines was the fact that they used radios, which allowed for constant communication. Tr. 174. Gish explained that he believed that Big Run Mine and Freedom Mine operated their ram cars differently because Big Run Mine had a bad top and was restricted to no more than 20-foot cuts. Tr. 174-75.

            The fourth witness, Jerry Carr, had been a coal miner since 1975. He had been at Freedom Mine for four years and was working as a continuous miner operator in March, 2011. Tr. 176-77. Carr testified that Freedom Mine’s ram car routes are safe and efficient and that he never saw nor heard of any accidents that resulted from them. Tr. 179. Carr’s job was to cut the coal with the continuous miner, and the ram car drivers loaded the coal he cut and took it to the feeder. Id. Carr first came across Ashby on Saturday, March 26th, and his impression was that Ashby was capable of driving the routes but did not understand the routes and thought he knew a better way than the other ram car drivers. Tr.180-81. Carr witnessed Ashby operating the ram car the wrong way and told him that he needed to start following the other cars since his operation of the ram car was causing a jam. Tr. 182.

            On Tuesday, March 29th, Carr testified that Ashby did not notify him when he was pulling off after he obtained a load of coal, which caused coal to be dumped on the ground. Tr. 185. The third time this happened, Carr testified that he said to Ashby, “Buddy, don’t pull out from under me anymore. Make sure I know that you’re fixing to leave. Every time you dump coal behind me, I got to back this damn miner and clean the [crap] up.” Id. Ashby responded by saying, “That’s twice you have cussed me and there won’t be a third time. I will come out of this car and teach you what a man is.” Tr. 186. Carr then told Ashby to do whatever he needed to but if he was going to drive the ram car behind him, he needed to do it right. Id. Ashby became upset and told the face boss, Bryant, that he wanted to leave. Tr. 187. Bryant asked him if he was sure and Ashby said yes and drove himself out of the mine. Tr. 189. According to Carr’s testimony, Ashby did not indicate to Carr that he was sick nor did he make any safety complaints in Carr’s presence. Id. Carr interpreted Ashby’s actions of leaving the mine before the end of his shift as an indication that he quit. Tr. 188. Carr saw Ashby when he was aboveground talking to Bosch but testified that he did not act friendly towards Ashby. Tr. 188.

            The fifth witness, David Bryant, the face boss in Unit 2 during March, 2011, had been mining since 1990 and obtained his first experience operating a ram car at the Freedom Mine. Tr. 190-91. He gained familiarity with the ram car routes at the Freedom Mine over a 14-year period, and testified that the ram car routes were run the same way on Monday, March 28th as they were on Tuesday, March 29th. Tr. 192. When Ashby was assigned to his crew, Bryant talked to the ram car drivers and asked them to help Ashby become familiar with the routes. Tr. 193. Ashby told Bryant that there was a better way to operate the ram cars on the routes but never expressed any safety concerns. Tr. 193. Bryant believed Ashby’s statements meant that he believed that there was a more productive way to operate the ram cars, not that there was a safety issue with the current operation of the ram cars. Tr. 194. He told Ashby that they had been operating the ram cars in the current manner the whole time Bryant had been in the mine and that it would continue because it was productive and safe. Id.

            On Tuesday, March 29th, 2011, Bryant heard on the radio that Ashby was having trouble but also heard the three other ram car drivers helping Ashby by instructing him on where he needed to go. Tr. 194. He also observed Ashby pulling his ram car away from the continuous miner earlier than he should have, which caused spills of coal which had to be cleaned up. Tr. 194-95. He saw Carr chastise Ashby by telling him not to pull away until he flagged him and that he was causing a mess that was costing time. Tr. 195. Ashby said that he did not have to put up with it and told Bryant he wanted a ride out. Id. Bryant asked him if he was sure and Ashby said yes. Id. According to Bryant, if a miner requests “a ride out”, that means he is quitting his job. Tr. 196. Bryant called Tommy Watkins, who was superintendent in March 2011, and told him that Ashby wanted a ride out and that he had asked to Ashby if he was sure that was what he really wanted to do. Id. Before he left, Ashby told Bryant that he should tell Carr that if he ever saw him again that he would “skin him like a squirrel.” Tr. 197. 

            The sixth witness, Richard Demar, had five and a half years of experience in the coal mines, with most of his experience as a mechanic. Tr. 201. In March of 2011, Demar was employed as unit mechanic. Tr. 202. According to Demar’s testimony, when Ashby came into the unit on Monday, March 28, 2011, Demar task trained him on the controls and functions of the ram car. Tr. 203. After Ashby started driving, he said that his car was stalling for no reason so Demar checked what he believed would be the most likely cause of the car stalling - the braking system - but found no mechanical problems. Tr. 208-09. Demar then called his boss, Darren Browning, and he got into the car, drove it around, and pulled coal but found no problems with the ram car. Id. Demar heard Ashby say over the radio that they were operating the ram cars wrong and he could show them a better way, but he never heard him mention anything about safety issues. Tr. 209-10.

            Demar testified that the Stamler ram car had lights in both the battery end and the bucket end so that miners could see it coming and going. Tr. 211-12. According to Demar, there were no secrets regarding the operation of the ram car that were being withheld from Ashby. Tr. 212. Interestingly, while cross-examining Demar, Ashby speculated that the reason the ram car kept stalling may have had something to do with his “bad habit” of leaning on the joystick. Tr. 214.

            Ohio County's next-to-last witness, Bill Barnett, was a miner with 35 years of experience. He was Freedom Mine's compliance officer during March, 2011. Tr. 217. On Saturday, March 26th, Barnett took Ashby, along with another new hire, to Unit 2. Tr. 218. He left for a few minutes to escort the other new hire and came back to explain to Ashby how to operate the Stamler ram car including its joysticks, lights, parking brake buttons, and panic bar. He also had Ashby drive up and down the entries. Tr. 219. He knew that Ashby had never operated a ram car like the ones at Freedom Mine but that he believed it should not have been a problem. Tr. 219, 221. He then had Ashby get in line and follow behind Ray Carroll, one of the lead car drivers, so that he would not get lost. Tr. 219. 

            Consistent with William Evans, Barnett testified that it is safe to drive through the backup curtains in reverse since ram car drivers can see just as well, or even better, from the bucket end as they can see from the battery end. Tr. 222.

            Ohio County's final witness, Robert Bosch, was the operations manager during March, 2011, which gave him the authority to hire, fire, or discipline miners. Tr. 226. Ashby was hired based upon a recommendation by other mine employees. Tr. 228. On Tuesday, March 29th, Bosch received a radio call from David Bryant, who was underground, stating that Ashby wanted to leave the mine immediately. Tr. 232. Tommy Watkins, the mine superintendent who was with Bosch when he received the call, asked if Ashby was sick or injured and Bryant said no, that Ashby simply wanted to come out. Tr. 233. After Ashby had come outside after taking a shower, Ashby came to talk to Bosch and Watkins and told them that the reason that he left his job early was because he was sick, which was the first time Bosch had heard anything about Ashby being sick. Tr. 233.

            Bosch told Ashby that he would talk to the miners who had been in the unit and find out what happened before he made any final decisions about Ashby’s employment. Tr. 234. Bosch believed that Ashby’s decision to leave early meant that he was quitting because he was not happy with his job. Tr. 235. From his experience in the mining industry and at Ohio County, if a miner leaves a job before the end of his shift, it means that the individual had quit his job. Tr. 236. After speaking to some of the miners in the unit, Bosch attempted to call Ashby but could not reach him. Id. The next day, Ashby came to the mine and Bosch explained to him that he had spoken to everyone in the unit and believed that Ashby had walked off the job when he left. Tr. 237. Ashby asked Bosch if he was firing him and Bosch responded that he considered Ashby to have quit. 237-38. Ashby then became upset, said that he had “miner’s rights” and that he had an uncle in the FBI. Tr. 238.

            Ashby never presented any safety complaints or concerns to Bosch regarding the ram car routes or anything else. Tr. 236, 239. In addition, Bosch testified that Aaron Farmer was directed to go underground at Freedom Mine on both Monday March 29th and Tuesday March 29th, to look at ways to improve the down time on power cables, not to examine the routes of the ram cars or to show Ashby how the ram car routes were supposed to go, as Ashby had testified. Tr. 238-39.

Discussion

            Section 105(c)(1) of the Mine Act provides:

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the statutory rights of any miner . . . because such miner . . . has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator’s agent . . . of an alleged danger or safety or health violation in a coal or other mine, or because such miner . . . has instituted or caused to be instituted any proceeding under or related to this chapter 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 chapter.

30 U.S.C. §815(c)(1).

            Under established Commission law, a Complainant establishes a prima facie case of a violation of section 105(c) if a preponderance of the evidence proves (1) that the Complainant engaged in a protected activity and (2) that the adverse action was motivated in any part by the protected activity. Driessen v. Nevada 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 (3rd Cir. 1981).

The mine operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part motivated by the protected activity. Sec=y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n. 20 (Apr. 1981). If the mine operator cannot rebut the prima facie case, it may defend affirmatively by proving that it would have taken the adverse action based upon the miner=s unprotected activities alone. Driessen, 20 FMSHRC at 328-29; Pasula, 2 FMSHRC at 2800.

            In evaluating whether a complainant has proven a causal connection between protected activities and adverse action, the following factors are to be considered: (1) knowledge of the protected activity; (2) hostility or animus towards protected activity; (3) coincidence in time between protected activity and adverse action; and (4) disparate treatment. Sec=y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev=d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).  

            The ultimate burden of persuasion is with the Complainant. Pasula, 2 FMSHRC at 2800.

Protected Activity

            Regarding what is considered a protected activity under the Act, the Commission has held that “the listing of protected rights contained in section 10[5](c)(1) is intended to be illustrative and not exclusive. The wording of section 10[5](c) is broader than the counterpart language in section 110 of the Coal Act and [Congress] intend[ed] [for] section 10[5](c) to be construed expansively to assure that miners will not be inhibited in any way in exercising any rights afforded by the legislation. This section is intended to give miners, their representatives, and applicants, the right to refuse to work in conditions they believe to be unsafe or unhealthful and to refuse to comply if their employers order them to violate a safety and health standard promulgated under the law.” Pasula, 2 FMSHRC at 2791-92.

            Furthermore, Commission cases have shown that protected activities can include, inter alia, testifying at mine safety proceedings, assisting inspectors, serving as miners’ representatives, complaining about unsafe equipment and safety issues within mines, and refusing to perform work in the face of a perceived hazard. Sec’y of Labor o/b/o Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833, 837-38 (May 1997); Sec’y of Labor v. Chicopee Coal Co., 21 FMSHRC 717, 718 (July 1999); Sec’y of Labor v. Consolidation Coal Co.,19 FMSHRC 1529, 1533-34 (Sept. 1997); Sec’y of Labor o/b/o Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 519 (Mar. 1984).

            Here, the Respondent disputes that Ashby engaged in any protected activity. Ashby testified that he suggested a better way for the ram cars to travel, but I find that he did not inform his supervisors at Freedom Mine of a dangerous condition or of a health or safety violation. Tr. 31, 80-81, 85, 145-46, 169-70, 189, 193-94, 209-10, 236, 239. Instead, he told the managers that he could show them a better way, not a safer way, for the ram cars to operate. Id. Also, he told Bosch that he did not understand driving ram cars all that well and that he may not be as good as he made himself out to be when they interviewed him because he did not understand the routes in Freedom Mine. Tr. 84. During this conversation, he never mentioned any safety issues. Tr. 85. In fact, Ashby did not mention any safety issues to anyone until after he was no longer employed at Freedom Mine. Tr. 91.

            Where material conflicts exist in the testimony between Ashby and other witnesses, I credit the other witnesses. Ashby's hubris seems to know no bounds. Someone who immediately after starting a new job tells everyone he knows how they should run their business better than they do is arrogant beyond belief. This is particularly true here, since Ashby did not know how the mine operated and did not know how to operate the mine's Stamler ram cars. The record also shows that Ashby is not overly concerned with the truth. He lied in telling several people that he left the mine on March 29th because he was sick; he falsely told Bosch that his uncle was an FBI agent, in an apparent attempt to intimidate him; and he misrepresented his ability as a ram car driver.

             Furthermore, testimony from Respondent’s witnesses showed that there had never been any accidents or safety concerns in Freedom Mine due to the operation of the ram cars. Tr. 127, 165, 179, 191. I also credit the testimony of the witnesses who stated that driving the ram cars in reverse provides adequate visibility and does not cause a safety issue. Tr. 156-57, Tr. 222. Further, Ashby did not present any evidence of safety violations at the mine. In addition, Ashby’s testimony that the ram car routes operated differently on Tuesday, March 29th from the way they operated on the previous Saturday and Monday was rebutted by Farmer, who was in the mine on both Monday and Tuesday. Tr. 130. Thus, I find that Ashby did not have a reasonable or good faith belief that the operation of the ram cars and the ram car routes themselves presented safety issues in Freedom Mine.

            Accordingly, I conclude that Ashby did not show that he engaged in protected activity leading to his termination on March 29, 2011. Therefore, his discrimination complaint is denied.

   ORDER

        It is hereby ORDERED that Complainant’s discrimination claim be DISMISSED.

                                                                            /s/ Jeffrey Tureck

                                                                            Jeffrey Tureck

                                                                            Administrative Law Judge

Distribution (certified mail):

Bradley R. Ashby, 46 Church Street, Nortonville, Kentucky 42442.

Jeffrey K. Phillips, Esq., Steptoe & Johnson PLLC, One Paragon Centre, 2525 Harrodsburg Road, Suite 300, Lexington, KY 40504.

/lo