FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N W., SUITE 9500

WASHINGTON, D.C. 20001

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

December 20, 2011

DECISION ON REMAND

Before:            Judge Bulluck

             This discrimination proceeding brought pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977 (“the Act”), 30 C.F.R. § 815(c), has been remanded by the Commission for further consideration of pro se Complainant Jayson Turner’s arguments and the record evidence on pretext. 33 FMSHRC 1059 (May 2011).

I. Factual and Procedural Summary

            Jayson Turner, an electrician at National Cement’s LeBec Cement Plant, in Kern County, California, worked at that facility for ten years and three months. 31 FMSHRC 1179, 1180 (Sept. 2009) (ALJ). During the period relevant to this proceeding, he worked the swing shift, from 2:00 p.m. to 12:30 a.m., Sunday through Wednesday. Id. At the same time that he was employed at National Cement, Turner was also employed on a part-time basis for Innovative Construction Solutions (“ICS”), a contractor that provided water treatment services to National Cement on the premises of its LeBec Plant. Id. Turner’s second job at ICS had flexible hours and no set schedule. Id. On June 14, 2006, Turner, on pre-approved leave for his entire shift at National Cement to attend a doctor’s appointment, showed his daughter around the ICS plant, and engaged in some work and “logged-in some activities,” from approximately 10:30 a.m. to 1:30 p.m; later that afternoon, he had lunch with his daughter and kept his doctor’s appointment at 4:00. Id. This incident, which ultimately resulted in Turner’s termination, was the second of two run-ins between Turner and National Cement over his outside job at ICS. Id. The first incident, occurring on September 24, 2003, involved Turner working at ICS on a day and time that he was scheduled to work, but did not report to his job at National Cement for “personal reasons.” Id. It resulted in a “written verbal” reprimand charging him with being “absent from work without consent of the Company,” and warning him that if such an incident were to happen again, it would result “in more severe disciplinary action, including possible discharge.” Id. On June 14, 2006, just short of three years later, as a result of Turner’s co-workers reporting to his immediate supervisor, chief electrician Julius Wetzel, that Turner had been sighted at ICS that morning, and based on ICS’ report to Wetzel that Turner had performed some work while at the plant, National Cement’s plant manager, Byron McMichael, ultimately terminated Turner, effective June 23, 2006. Id. at 1181. Turner was charged with “working for another firm on a day that [he was] absent from NCC and [his] less than acceptable performance.” Id.

             On July 16, 2006, Turner filed a Discrimination Complaint with the Mine Safety and Health Administration (“MSHA”) pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 105(c)(2). Id. at 1179. After completion of its investigation, by letter dated August 25, MSHA notified Turner of its conclusion that no violation of section 105(c) of the Act had occurred. Id. Thereafter, Turner filed an action with the Commission on August 31, 2006, under section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). Id. A hearing was held in Pasadena, California, and I issued a Decision concluding that, although Turner had engaged in activity protected by the Act, he failed to establish a prima facie case, because he did not prove that his protected activity in any part served as the basis for his termination by National Cement. Id. at 1180. Furthermore, I found that, assuming, arguendo, that Turner’s protected activity played some part in the decision to fire him, National Cement ultimately proved that Turner was discharged for business reasons that were wholly unrelated to his protected activity. Id. I concluded that Turner was terminated for non-conformance with the company’s policy respecting outside employment and less than satisfactory performance. Id. at 1186. I further found that National Cement would have terminated Turner on the sole basis of his conduct respecting his outside work at ICS, irrespective of any protected activity and, consequently, I dismissed his Discrimination Complaint. Id. Thereafter, the Commission granted Turner’s Petition for Discretionary Review and, in a 3-2 split decision, vacated my decision and remanded the matter for further consideration of Turner’s arguments on pretext.

II. The Law

            A restatement of the applicable law at this juncture provides an organized framework in which to discuss my analysis of National Cement’s justification and Turner’s pretextual arguments, and the resultant findings and conclusions. A complainant alleging discrimination under the Act establishes a prima facie case of prohibited discrimination by presenting evidence sufficient to support a conclusion that the person engaged in protected activity and that the protected activity 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 Pasula, the Commission held that a complainant must prove a prima facie case by a preponderance of the evidence. 2 FMSHRC at 2799. 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 matter, 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); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the Commission’s Pasula-Robinette test).

            In determining whether a mine operator’s adverse action was motivated by protected activity, the 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.”

Id. 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. Id. at 2510-12; see also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530 (Apr. 1991). The Commission has also held that an “operator’s knowledge of the miner’s protected activity is probably the most important aspect of a circumstantial case” and that “knowledge . . . be proved by circumstantial evidence and reasonable inferences.” Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999) (citing Chacon). In Bradley v. Belva Coal Co., the Commission enunciated several indicia of legitimate non-discriminatory reasons for an employer’s adverse action, including evidence of the miner’s unsatisfactory work record, prior warnings to the miner, past discipline consistent with that meted out to the complainant, and personnel rules or practices forbidding the conduct in question. 4 FMSHRC 982, 993 (June 1982). Ultimately, the Commisssion’s inquiry into the operator’s business justification for its actions is summarized as folows:

[T]he inquiry is limited to whether the reasons are plausible, whether they actually motivated the operator’s actions, and whether they would have led the operator to act even if the miner had not engaged in protected activity. The Commission may not impose its own business judgment as to an operator’s actions. Further, . . . the Commission may not substitute its own justification for disciplining the miner over that offered by the operator.

Pendley v. FMSHRC, 601 F.3d 417, 423-24 (6th Cir. 2010) (restating the Pasula-Robinette test).

            While I found that Turner had engaged in protected activity by bringing safety concerns to the attention of his supervisors, and that the complaints occurred in close proximity to his firing, I found that he did not establish a prima facie case because he failed to produce any evidence that his protected activity played any part in National Cement’s decision to terminate him. 31 FMSHRC at 1183. However, the Commission majority, reviewing my prima facie case analysis de novo, noted that the burden of proof in establishing a prima facie case is lower than the ultimate burden of persuasion in proving a section 105(c) violation, and concluded that Turner had presented sufficient circumstantial evidence to compel a conclusion that retaliation could be inferred from the evidence and, therefore, that he established a prima facie case. 33 FMSHRC at 1065-67. In so finding, notwithstanding the fact that Turner was required to prove a prima facie case by a preponderance of the evidence, the majority concluded that I had incorrectly elevated the burden of proving a prima facie case and failed to consider circumstantial evidence of impermissible motivation. Id. at 6; see Pasula, 2 FMSHRC at 2799 (a complainant must prove the two-pronged elements of a prima facie case by a preponderance of the evidence). Furthermore, respecting National Cement’s defense, it concluded that I had failed to address evidence that the operator’s justification for Turner’s discharge was pretextual. 33 FMSHRC at 1065.

III. Instructions on Remand

            Having determined that Turner established a prima facie case, the majority found that the record contains considerable evidence supporting Turner’s arguments on pretext. I am directed, on remand, to consider and address the circumstantial evidence of National Cement’s motivation in firing Turner by determining whether its defenses are credible and would have motived it, as claimed, and make necessary findings on the ultimate issue of discrimination. Id. at 1072-73. Moreover, the majority cautioned that National Cement’s defense should not be “examined superficially or be approved automatically once offered.” Id. at 1073 (citation omitted). The majority cited Commission precedent holding that “pretext may be found . . . where the asserted justification is weak, implausible, or out of line with the operator’s normal business practices.” Id. (citations omitted). In further explanation of Turner’s burden in proving pretext, the majority pointed to courts’ interpretations of other federal anti-discrimination statutes, noting that “[a] plaintiff may establish that an employer’s explanation is not credible by demonstrating ‘either (1) that the proffered reason had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge.’” Id. (citations omitted) (emphasis in original). By structuring its analysis in this way, the majority found that “[t]he record demonstrates that, at trial, Turner presented a significant amount of circumstantial evidence that the operator’s purported reasons and explanations for firing him were inconsistent or otherwise suspect.” Id. In summary, the majority found that “[I] should have questioned whether Turner’s work for a short time at a second job prior to a shift for which he properly requested medical leave was a sufficient basis for firing him.” Id. at 17. While it appears, as the majority strongly pointed out, that National Cement’s explanation is suspect in some respects, careful and thorough consideration of its reasons for Turner’s discharge leads to a conclusion that the operator was motivated solely by factors other than Turner’s protected activity. 

IV. National Cement’s Rebuttal of Turner’s Prima Facie Case

            National Cement’s proffered reasons for firing Turner were that he worked for ICS, his secondary employer, on a day that he was scheduled to work for National Cement but did not do so, and that his work performance was poor. The record is clear that Byron McMichael made the ultimate decision to terminate Turner based on Wetzel’s report of Turner’s work at ICS on June 14, review of Turner’s personnel file, and recommendations that Turner be fired from Wetzel and his supervisor, electrical manager, Bill Russell. Given that it is not readily apparent how Turner’s work at ICS, prior to the time that he would have reported to his scheduled shift at National Cement, could have interfered with his primary employment, and given that Turner had never been disciplined beyond “written verbal” warnings for any performance deficiencies, National Cement’s explanation for terminating him requires close examination. A critical eye must be applied to the operator’s view of Turner’s protected activity, as well as its view of his secondary job, and why the company even made an issue of Turner’s work for ICS in the first place, and then was so rigid in its discipline. For the reasons that are fully discussed below, I find that National Cement successfully rebutted Turner’s prima facie case by proving that Turner’s termination was in no part motivated by his protected activity.

            A. Knowledge

            The majority was critical of my having credited McMichael’s testimony that he was unaware of Turner’s safety complaints, and made his decision based solely on Turner’s non-protected conduct. It found that I had failed to reconcile this finding with evidence that Wetzel and Russell knew of Turner’s protected activity and were consulted by McMichael in making his ultimate decision. Id. at 9. The majority instructed that “if Wetzel’s and Russell’s recommendations to terminate Turner were at least partially a result of retaliatory animus and if those recommendations influenced McMichael’s decision to terminate Turner, then Wetzel’s and Russell’s knowledge and retaliatory animus may be attributed to the decision maker.” Id. at 10 (emphasis added). Finally, the majority requires that “[a]s to the ultimate question of discriminatory motive, on remand, [I] must address whether McMichael’s decision to terminate Turner was influenced by the recommendation of Wetzel and Russell. If so, Wetzel’s and Russell’s knowledge of Turner’s protected activities should be imputed to McMichael.” Id. at 11 (emphasis added).

            Turner’s protected activity, when considered in the context of National Cement’s motivation, requires a separate analysis of management’s reaction to each incident. Without evidence that Wetzel’s and Russell’s perception of Turner’s safety complaints rose to a level of importance that would make it reasonable to infer that they were reported up the management chain to McMichael, the mere fact that the protected events occurred does not, in and of itself, lead to a conclusion that it is appropriate to impute their awareness of them to McMichael. A review of the record suggests otherwise, that the incidents were not viewed by Wetzel and Russell as serious, but rather, routine matters, typical of daily plant operation. As will be discussed in detail, the record does not provide a basis for imputing Wetzel’s and Russell’s knowledge of Turner’s protected activity to McMichael, and establishes that McMichael only had actual knowledge of the roller mill shutdown, an incident that he did not consider a safety complaint.

                        1. Manlift Lights

Turner testified that, in January of 2006, he had mentioned to Wetzel and Russell that the company manlift needed after-market driving lights installed in front of the wheels, so as to avoid potholes in the road when his assignments required driving the equipment at night in the unlit quarry area of the plant. Tr. 48-50, 102-03. According to Turner, Russell had suggested that he plug a “little job light” into a receptacle in the basket. Tr. 50, 52, 189; see 439. Russell testified that he very well may have made this suggestion to Turner in order to fix the problem immediately, but that he was of the opinion that modification of the lights was unnecessary, because the manlift had come from the manufacturer equipped with all the safety devices that it was required to have. Tr. 229, 231-32. Wetzel testified that he had addressed the problem by instituting a procedure whereby the manlift was positioned at the quarry during daylight, so that it would already be in place for electrical work performed at night. Tr. 453, 459-60. Wetzel also opined that Turner’s suggestion would not have worked, because the driver sits in the back of the vehicle about 15 to 20 feet:

The design of the manlift when you put lights on it to shine on the road in front of it, you couldn’t effectively see them from where you’re driving from anyway. You couldn’t see it. The boom would be blocking your view. Long range there. So if you’re shining in front of the manlift, I don’t see how you could do any good.

Tr. 458-59. Turner does not challenge or contradict Wetzel’s or Russell’s testimony on their respective handling of this issue, and the record supports a conclusion that each supervisor believed that he had adequately addressed Turner’s concern. There is simply no indication that Wetzel or Russell viewed Turner’s complaint as either unresolved or of a magnitude that required McMichael’s attention. In fact, Wetzel credibly testified that he had not even discussed the matter with Russell. Tr. 469-70. Therefore, I fully credit Wetzel and Russell, that neither of them had discussed Turner’s request for lights on the manlift with McMichael and, because they viewed Turner’s concern as an issue that had been promptly and fully addressed, there is no support in the record for imputing their knowledge to McMichael.

                        2. Thin, Electrically-Rated Gloves

            Turner testified that, in April of 2006, he had reported the need for the electricians to have thin, tactile, electrically-rated gloves to the safety manager Randy Logsdon, safety committeemen Bill Edminister and Chris Hess, and Julius Wetzel. Tr. 18-19, 39, 104, 223-24. According to Turner, he had checked the status of his request with Logsdon on June 16, following his meeting with Wetzel and McMichael about suspending him pending termination, and Logsdon explained that his research on the gloves had turned up none that met his specifications. Tr. 19, 34-35, 105-06. Logsdon essentially gave the same account of how Turner had raised the need for the gloves, and stated that he had looked at a number of safety equipment catalogs, but had not been able to find the product. Tr. 361-63, 372. Logsdon testified that he had processed Turner’s comments “as a request to research the availability of a potential new type of personal protective equipment,” or an “inquiry,” rather than a safety complaint. Tr. 369-70. Moreover, he opined that the electricians at National Cement had the proper equipment with which to perform their duties, and that they were able to work safely without the gloves that Turner had requested. Tr. 368-69. Finally, Logsdon testified credibly to having no recollection of discussing Turner’s request with McMichael, and described the kinds of issues that, generally, he would have brought to McMichael’s attention as “higher level safety issues that would require a major expense, a major modification to plant equipment, a change in procedure or process, or capital investment.” Tr. 365-67. Logsdon’s testimony in this regard is consistent with McMichael’s, that matters such as gloves should be addressed by the safety manager and that he, McMichael, for the most part, is not approached about, nor would he pay attention to “mundane routine items like safety-toed shoes for the employees.” Tr. 316-18; see 243, 301-02.

            Bill Russell testified that he had not been asked to provide any kind of safety gloves, and that he did not recall any conversation with Randy Logsdon about them. Tr. 196-97.  

            Julius Wetzel testified that he remembered Turner mentioning lightweight, electrically- rated gloves to him. Tr. 438. He also stated that, normally, he does not communicate safety issues raised by his subordinates to McMichael. Tr. 434. In his opinion, the electricians at National Cement do not have a need for gloves of this nature. Tr. 467. Contrary to the majority’s reading of the transcript, that Wetzel’s testimony was, in part, sarcastic, I observed the demeanor of Wetzel and Turner on cross-examination and found Wetzel’s comment, “but you’re not a lineman,” a direct expression of his opposition to Turner’s suggestion that his (Turner’s) duties were analogous to that of a lineman, and consistent with his opinion that the gloves Turner had asked for were unnecessary. Id. at 12; Tr. 438.

            The majority concluded that I had not considered Bill Edminister’s testimony that he had raised Turner’s concern about thin, electrically-rated gloves at a safety committee meeting, and that the response had been “kind of a chuckle,” without comment. Id. at 9; Tr. 148. The majority goes further in that regard, pointing out that McMichael was most likely in attendance at that safety meeting. Id. at 10. Without more, for example, the identity of the chuckler and conversation in which to put the gesture into context, it is difficult, if not impossible, to ascertain what to make of it. McMichael may have very well been at that meeting, although he testified to only vaguely remembering Logsdon announcing at one of the meetings that he was investigating gloves for electricians, but had no knowledge of who had prompted the request. Tr. 310. Whether this was the same meeting to which Edminister was referring is unclear from the record. As probable as it seems that McMichael was present at a safety committee meeting where Turner’s concern about the gloves was expressed, it is as probable that no one elevated the concern beyond a routine request for equipment. After all, the union is represented in these meetings and there is no evidence that the union felt it necessary to intercede for Turner or get involved in the matter otherwise.

            Turner was not forthcoming with any evidence that thin, electrically-rated gloves existed at the time of his request, despite his assertions at hearing that the gloves “became available in the last few years.” Tr. 36-37, 226. Moreover, Turner failed to establish that the gloves he asked for were necessary. Indeed, Randy Logsdon researched the gloves, and the fact that he did not tell Turner that they were unavailable until Turner asked for an update in mid June supports his testimony that he viewed Turner’s concerns as a mere request for equipment. There is no indication from the record that National Cement viewed Turner’s concern about the gloves as an issue requiring higher level attention from McMichael, or action beyond Logsdon’s research. In fact, because Logsdon had researched them, it is reasonable to assume that had he found them, he would have provided them to Turner. In any case, I credit Russell’s testimony that he was unaware of Turner’s concerns about the gloves and, because the record supports a conclusion that these gloves were small-line items and unessential, I conclude that Wetzel did not make McMichael aware of Turner’s complaint, and there is no support in the record for imputing Wetzel’s knowledge to McMichael.

                        3. Roller Mill Troubleshooting

            Jayson Turner and National Cement could not hold more divergent views of the roller mill incident of May 24, 2006, when Turner, required to rack-in the roller mill, improperly engaged the wrong switch gear to the old raw mill and shut down the power to the entire plant. Tr. 24-30, 205-06, 490-91, 497-500, 564. Turner has been credited with having made a safety complaint about this inactive raw mill being mislabeled and not locked and tagged-out of service by National Cement. Tr. 20-21, 26-28, 31. Rather than a safety complaint, National Cement views this incident as an example of Turner’s poor performance.

            Bill Edminister shed some light on the circumstances surrounding the incident by explaining that the old raw mill had not been dismantled so that, at some point in the future, National Cement could make use of the system. Tr. 176. He also testified that power interruptions to the plant occur frequently, which was corroborated by Wetzel’s estimate that four or five employees, over a six year period, had knocked down power to the plant. Tr. 143-44, 507. Bill Russell testified that other employees responsible for interrupting power were “written up” just like Turner. Tr. 196; see 507-08 (Wetzel’s corroboration of this point).

            Russell and Wetzel gave similar accounts of the incident. Russell testified that, instead of racking-in the roller mill, Turner went to the main substation where the old raw mill starter was located and racked that in, which is what knocked out the power to the plant. Tr. 205-06. According to Russell, this should not have happened because, “the old raw mill had been out of service for at least five years when this happened. . . . Everybody knew it was out of commission for the last five years. He shouldn’t have been over there. The starter where you go in to rack-in and out the physical roller mill is in an entirely different building.” Tr. 206-07. Wetzel, likewise, testified that Turner never should have left the building: “[t]here was no reason for him- - if he troubleshot the system properly, he shouldn’t have been over there.” Tr. 495-98. In Wetzel’s opinion, Turner’s poor troubleshooting technique, i.e., that he was in the wrong place, was responsible for exposing him to the “misidentified” equipment. Tr. 496-98. Furthermore, the electrician’s log reflects that Turner had successfully racked-in the roller mill on several occasions, an indication that he should have known how to properly troubleshoot the equipment on May 24. Tr. 519-23, 524-25; Ex. R-5.

            According to Turner, through his own testimony and cross-examination of Russell and Wetzel, he was not attempting to rack-in the roller mill, but restore the medium voltage disconnect. Tr. 211-12, 563. Stated another way, he “was actually looking for the power supply and not the starter, itself.” Tr. 567. He further testified that, because of the written warning that Wetzel had issued to him on June 6 for “mistakenly knocking the plant power down by disconnecting the wrong medium voltage disconnect supplying power to the new raw mill,” he “knew [his] job was on the chopping block,” and he filed a grievance on June 12. Tr. 30-31.

            Byron McMichael’s testimony, “[y]eah, the whole plant would know that. Everyone knew that all the power was off,” makes clear that he knew of Turner’s accident. Tr. 273, 302. There is ample evidence, however, that National Cement viewed the incident as a performance deficiency, and Wetzel, Russell and McMichael testified that Turner would not have been terminated solely for his job performance. Tr. 198 (Russell); 262, 269 (McMichael); 462-63, 557-58 (Wetzel). The record supports this testimony - - Turner was disciplined in the same manner as others who committed the same infraction. It is abundantly clear that no further action, beyond the “written verbal” warning was contemplated for Turner having caused the power interruption. It was not until the second ICS incident that National Cement was motivated to act. Turner’s job performance was not even discussed with Turner and union representative Neal Janousek at the June 16 meeting, which is further indication that Turner’s performance was reviewed secondarily, more so as an aggravating factor, and would not have been called into question had the ICS incident not occurred. Tr. 544-546.

                        4. Pre-Calciner Burner Troubleshooting

            Turner alleges that, on June 12, 2006, he complained to Allen Lee, the process control supervisor, that Lee had put the tower rangers and Turner in harm’s way by needlessly subjecting them to extreme heat and toxic gasses in the Pre-Calciner burner tower, in order for them to determine why the burners could not be started remotely. Tr. 43-44. According to Turner, the problem was clearly identifiable, and could have been resolved easily from the control room by reducing the main gas pressure on the kiln deck burner. Tr. 44. Turner testified that he and his co-workers spent an hour troubleshooting the burners in the hot, gaseous environment for no good reason and, thereafter, he made a “pretty stern statement” to Lee over the radio, that they were angry and that Lee should record the solution in the log-book for future reference. Tr. 44-48.

            Tom Hastings testified that he recalled troubleshooting the Pre-Calciner burners with Turner that night, and saying something to Turner “about [him] possibly angering somebody . . . over the radio.” Tr. 349; see 352-53. He stated that he could not remember Turner’s exact comment, but that he recalled the workers being “a little upset about it because it’s not exactly a safe place to be.” Tr. 350, 352. Hastings’ testimony provides ample corroboration that Turner had expressed his anger to Lee, which has been credited to Turner as a bona fide safety complaint.

            Allen Lee had no supervisory authority over the electrical shop, and the record is bereft of any indication that he spoke to anyone about Turner’s conduct, or was in any way involved in the decision to terminate him. Tr. 99, 101. Turner, himself, testified that Lee did not take his suggestion and annotate the log, which makes it likely that nothing had been written about the incident. Tr. 47. Furthermore, there is no evidence that establishes Logsdon’s, Wetzel’s, Russell’s, or McMichael’s knowledge of the Pre-Calciner burner incident or Turner’s strident radio communication to Lee. Tr. 198, 238, 273, 410, 505-07. Therefore, the record does not support a basis for either imputing Wetzel’s or Russell’s knowledge to McMichael, or crediting McMichael with actual knowledge of Turner’s complaint.

            B. Animus

            The majority suggests that National Cement was, by and large, unresponsive to Turner’s complaints. My consideration of the record leads me to a contrary conclusion. I find that the operator’s actions, respecting each instance of protected activity, were within the realm of reasonable behavior and, therefore, not indicative of any hostility. Based on this conclusion, there is no basis to support imputing to McMichael animus on the part of Wetzel and Russell for Turner’s safety complaints, just as there is no evidence of animus on the part of McMichael respecting the sole incident of which he was aware, the power interruption to the plant.

                        1. Manlift Lights

            Piggybacking on the previous discussion of Wetzel’s and Russell’s handling of Turner’s request for after-market lights on the manlift, although Turner may not have been completely satisfied, the record indicates that both managers believed the issue to have been fully addressed and resolved in January of 2006, when it was raised. The record supports a conclusion that the issue died in January, that there was no hostility on the part of any management official about Turner’s complaint when it occurred or at any time thereafter, and that it was never a motivating factor for any action taken by National Cement during the balance of Turner’s employment.

                        2. Thin, Electrically-Rated Gloves

            The complaint about the electricians not being outfitted with thin, electrically-rated gloves occurred in April of 2006. At this juncture, the question of Russell’s mind set about this matter is a non-issue, inasmuch as Russell’s testimony that he had no knowledge of the glove issue was not controverted by Turner and is wholly credible. The record establishes that Randy Logsdon made earnest, albeit unfruitful, efforts to locate gloves that satisfied the specifications requested by Turner. This is true, despite the fact that Logsdon believed the electricians to have already been provided with adequate equipment to perform their duties safely. The fact that Logsdon did not give Turner an update until Turner approached him in June may appear inattentive by some standards, but clearly this delay of two months or less does not outweigh Logsdon’s attempts to satisfy Turner’s request. On the other hand, Wetzel’s reaction to Turner’s request, while perhaps appearing to have been somewhat passive, is explained by his position, like Logsdon’s, that National Cement’s electricians had no need for the gloves. Finally, as has been fully explained above, the record considered in its entirety does not support taking the giant leap necessary to support a conclusion that the “chuckle” about the gloves in the safety committee meeting was indicative of hostility on the part of National Cement management.

                        3. Roller Mill Troubleshooting

            Turner’s accidental shutdown of the plant on May 24, caused by his improper engagement of the wrong switch gear, was clearly considered a performance deficiency by National Cement, for which he received minimal discipline. While the majority has pointed out that power interruptions to the plant were common occurrences, the record makes clear that National Cement treated Turner in the same fashion as others who had committed the same offense; they were issued “written verbals.” Furthermore, the record provides no indication of any additional discipline, beyond the warning, either contemplated by the company or actually meted out to Turner. Turner’s testimony that he “knew [his] job was on the chopping block,” is simply not borne out by the record. Wetzel, Russell and McMichael all testified that Turner would not have been fired for the roller mill debacle and, in fact, he was not fired until the intervening trigger occurred, the ICS incident. Tr. 462-63, 557-58 (Wetzel); 196 (Russell); 262, 269 (McMichael). Finally, there is no support in the record for Turner’s claim that his written report of the roller mill incident, in which he complained about the equipment being mislabeled and not locked and tagged-out of service, engendered hostility on the part of National Cement management.

                        4. Pre-Calciner Burner Troubleshooting

            Turner’s safety complaint about miners needlessly being exposed to the extreme heat and gaseous environment in the Pre-Calciner tower was expressed by radio to the process control supervisor Allen Lee. As has been stated, Lee did not supervise National Cement’s electricians, and had no involvement in the decision to terminate Turner. There is no evidence of Lee’s reaction to Turner’s complaint, or of Lee communicating Turner’s complaint to anyone. Therefore, the record establishes no basis for ascribing animus on the part of Wetzel, Russell or McMichael towards Turner’s complaint.

                        5. Wetzel’s Opinion of Turner

            Wetzel’s characterization of Turner as “difficult” has been called into question by the majority, which noted that Wetzel clearly disliked Turner. 33 FMSHRC at 1070 n.9. I fully credit Wetzel’s testimony that Turner is hard to communicate with, defensive, does not listen, and takes personally things that were not so intended, as fully consistent with Turner’s uncooperative conduct throughout all stages of this proceeding. Tr. 460-61, 488. The record is replete with instances of Turner’s disruptive behavior and refusal to follow instructions, despite the latitude and assistance that he was afforded in presenting his case. Tr. 39, 342-43, 378, 382, 435-36, 437, 458, 462, 465-66, 513, 517, 525, 529-30; see also Id. at 1088 n.5. Consideration of Turner’s consistent obstreperous pattern of behavior in this forum provides support for Wetzel’s negative view of him, and any hostility on Wetzel’s part is reasonably attributable to Turner’s behavior. Therefore, there is no basis in the record for concluding that Wetzel’s negative opinion of Turner was based on Turner’s protected activity.

                        6. Turner’s Performance

            As Turner’s immediate supervisor, Wetzel was of the opinion that Turner was not a good electrician. He was able to give examples of Turner’s poor work habits, as well as his failure to follow instructions. Tr. 485-489. In fact, Wetzel testified that other electricians refused to work with him, and that his recommendation to McMichael, that Turner should be terminated, was based more so on performance than Turner’s work at ICS. Tr. 488-89, 558-59, 571-72. Because Wetzel directly oversaw Turner’s work, and his clear, detailed accounts of Turner’s deficiencies were unrebutted, I also conclude that Wetzel’s overall view of Turner as an electrician, as well as his performance, were not bases for attributing animus to Wetzel for Turner’s protected activity.

            C. Time Proximity

            The four instances of Turner’s protected activity occurred as follows: (1) the manlift lights complaint in January; (2) the request for thin, electrically-rated gloves in April; (3) racking-in the mislabeled raw mill that had not been locked and tagged-out of service, and interrupting power to the plant on May 24; and (4) troubleshooting the Pre-Calciner burners on June 12. The record provides no indication that these incidents, the latest having occurred within days of Turner’s suspension and ultimate termination, individually or collectively, sparked any formal action from National Cement, adverse or otherwise, except the “written verbal” warning. The seminal event, breaking the link between Turner’s protected activity and his termination, was Turner’s outside employment at ICS - - an incident of such monumental magnitude to National Cement, that it prompted a swift reaction, and by some standards, an overreaction. See Tr. 512 (Wetzel’s testimony that, in retrospect, warning Turner would have been more appropriate than firing him). Consequently, because I find overwhelming support in the record that the intervening event triggered Turner’s firing, I do not find the timing of Turner’s protected activity and his termination indicia of animus or retaliatory motive.

            D. Disparate Treatment

            National Cement presented testimony that another electrician, Joseph Kowalski, had been terminated for working a secondary job during a time that he would have been working for National Cement. Tr. 327-30. However, the record indicates that the basis of Kowalski’s termination was a violation of National Cement’s negotiated attendance policy, i.e., absence for three consecutive workdays without providing adequate notice to the operator and a satisfactory reason for the absence. Ex. ALJ-1. Turner’s leave had been duly approved on the day that he worked at ICS, on the other hand, and his attendance was never called into question when his termination was contemplated. Consequently, because Kowalski was also fired, although for a different reason, considering the lack of evidence of any similarly situated employee, not terminated for working a secondary job under similar circumstances and, therefore, treated more favorably than Turner, it must be concluded that Turner was not treated disparately.

            In analyzing the circumstantial evidence in this case, and concluding that Turner’s protected activity played no part in his termination, I have also considered the evidence that addresses the question of why Turner’s work on June 14 evoked such strong reaction from the operator. In particular, I have examined National Cement’s attitudes about ICS, Turner’s outside employment at the water treatment facility, and the operator’s general view of Turner as an employee. These factors, as well as others raised by the Commission majority, are discussed in conjunction with the alternative analysis, National Cement’s affirmative defense of Turner’s termination.

V. National Cement’s Affirmative Defense, in the Alternative

            Assuming, arguendo, that Turner’s protected activity had played some part in National Cement’s decision to terminate him, the operator has also proven that it was also motivated by Turner’s work at ICS on June 14, and that it would have terminated him for that incident alone.

            Turner’s work at ICS in September 2003, at a time when he had been scheduled to work for National Cement, is the first incident of record suggestive of the operator’s irritation with Turner’s work for the water treatment facility. Turner was issued a “written verbal,” warning him that repeated behavior would result in more severe discipline, possibly discharge. As was discussed earlier, that incident is distinguishable from Turner’s work at ICS in June 2006, which occurred prior to Turner’s scheduled shift. For that reason, and because there is no evidence that Turner had been warned specifically not to work at his outside job whenever he took leave from National Cement, it appears that Turner may not have considered his behavior on June 14 to constitute a repeat of the earlier infraction. Turner testified that he had gotten into a routine of working at ICS before or after his National Cement shift. Tr. 85. There is some indication, however, as discussed below, that Turner’s conduct on June 14 was known to other employees to be prohibited by the operator and that, perhaps, Turner was not as naive as he contends. Moreover, there is some indication that Turner’s conduct was known, at least according to McMicheal, to run afoul of the negotiated labor agreement. Tr. 340.

            Byron McMichael was less than pleased about ICS’ services to National Cement. He testified repeatedly that he viewed ICS as an economic liability to the company inherited from previous owners. Tr. 252-53. Furthermore, McMichael had very little tolerance for Turner’s work arrangement with ICS. When asked by Turner why he felt it necessary to fire him, McMichael expressed his annoyance quite candidly:

It was my opinion after having warned you about that prior to that, having worked for a contractor on our site, which is annoying to me to start with. We hire people to work for us, we want them to perform their work and you deprived us of your work that day. And to me, that was very irritating, and time for a change.

Tr. 252. McMichael’s opinion, directed to Turner, “you could have scheduled your blood pressure test some other time and interrupted your work with ICS, your part-time job, and provided service for us that day,” is further indication that, despite National Cement’s authorization for Turner’s outside work, McMichael viewed it with contempt. Tr. 334. At Turner’s suggestion to McMichael that firing him was unreasonable given that he, Turner, had offered to return to work on June 14, if needed, this was McMichael’s response:

I’ll repeat again. We do not tolerate somebody working for a subcontractor at National Cement Services. I felt that you should have been coming in and doing some work for us. If you work for a subcontractor, it’s my opinion you should be able to work for us.

Tr. 339; see Tr. 340-41 (McMichael’s testimony that, on a day that a National Cement employee requests time off, he should not be working for anyone else); see also Tr. 333 (McMichael’s testimony that, had Turner worked for National Cement on June 14, he would not have been fired for also working for ICS); Tr. 483 (Wetzel’s testimony that if Turner had come to work that day, there would not have been a problem).

            Finally, National Cement would not have been wise to Turner’s whereabouts without the help of informants. That several of Turner’s co-workers reported the Turner sighting at ICS to Wetzel suggests that Turner’s outside job was widely known to be a bone of contention, for whatever reason. Otherwise, it makes no sense for anyone to have chosen that particular day, when Turner had taken off from National Cement, to report Turner’s presence at ICS to his supervisor. It also suggests that Turner’s co-workers were likely trying to put his job in jeopardy, knew exactly when the opportunity presented itself, and seized it. Moreover, their conduct also suggests that Turner may have been viewed negatively by other employees, and lends credence to Wetzel’s hearsay testimony that other electricians had expressed dislike for working with Turner.

            In concluding that National Cement has prevailed under this alternative analysis, by presenting overwhelming evidence that McMichael’s irritation with ICS in general, and Turner’s work arrangement with ICS in particular, was of such magnitude that it would have motivated him to terminate Turner for the ICS incident alone, I have carefully reconsidered Turner’s pretextual arguments and reject them for lack of evidentiary support.

VI. Pretext

            The majority directed that I consider, in determining whether Turner proved National Cement’s reason for his termination to be pretextual, that Turner was compliant with National Cement’s attendance policy pursuant to the negotiated labor agreement, that National Cement did not adhere to its attendance policy, and that Turner’s performance issues were not significant.

             In actuality, National Cement has never contended that Turner was not on pre-approved leave on June 14. Furthermore, Turner’s attendance record was never called into question by National Cement and, therefore, it is not an issue that is properly before me in this case. Likewise, the question of whether National Cement acted in accordance with its “no fault attendance” policy is not before me, for the reason that Turner was terminated for conduct other than attendance-based infractions to which the disciplinary provisions set in place by the labor agreement would apply. See Tr. 271-72 (McMichael’s discussion of National Cement’s “no fault attendance” program); Tr. 219 (Russell’s testimony that the point system applies to attendance only).  

            As has been discussed, Turner’s performance issues were Wetzel’s primary motivation in recommending Turner’s termination, but they played only a minor, secondary role in McMichael’s decision making. Without the documented “written verbals” considered in Turner’s personnel file and Wetzel’s discussion with McMichael about other performance deficiencies, McMichael would have terminated Turner anyway just for working at ICS. See

Tr. 485-87 (Wetzel’s examples of Turner’s performance problems).

            Nothing in this decision is intended to suggest that National Cement’s treatment of Turner was anything less than heavy-handed and, for the most part, lacking in compassion. The record suggests that, based on the fact that Turner was viewed as a difficult employee, he was not going to get a break. It didn’t take much to push McMichael over the edge respecting his tolerance of Turner’s work arrangement at ICS, given his level of annoyance and absent encouragement from Turner’s supervisors to go easy on him. In fact, according to McMichael, if he had it to do over, he would fire Turner again. Tr. 334. Turner’s only protection under the Act, however, is his right to be free of retaliation for his legitimate safety related complaints. He is not protected from National Cement’s negative opinion of his personality, nor is he protected from National Cement’s objection to or intolerance of his outside employment. This is true no matter how unreasonable the reaction, as long as the operator’s motivation is unrelated to Turner’s right to reasonably complain. Here, the weight of the evidence supports a conclusion that fairness and leniency were given no consideration in the resolve to construe Turner’s June 14 activities as a fireable offense, but neither were the safety concerns that Turner had brought to the operator’s attention in close proximity to the ICS incident. To conclude otherwise amounts to cherry-picking facts piecemeal, in order to construct a scenario that strays well beyond that which the record compels. Finally, I note that, as harsh as National Cement’s actions might appear, an arbitrator upheld Turner’s termination through the negotiated grievance process. Tr. 289, 344.

VII. Conclusion

            Based on a thorough review of the record, I conclude that Turner has failed to establish, by a preponderance of the evidence, that he was terminated for engaging in activity protected under the section 105(c) of the Act.

ORDER

            Accordingly, it is ORDERED that Jayson Turner’s Discrimination Complaint against National Cement Company of California, Incorporated, is DISMISSED.

                                                                        /s/ Jacqueline R. Bulluck

                                                                        Jacqueline R. Bulluck

Administrative Law Judge

Distribution: (Certified Mail)

Jayson Turner, 2716 Arctic Drive, P.O. Box C, Pine Mountain, CA 93222

Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street, NW, Suite 1000, Washington, DC 20006