FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

DECISION AND ORDER

REINSTATING VICKI LARUE

Appearances: Samuel Charles Lord, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, representing the Secretary of Labor (MSHA) on behalf of Vicki LaRue.

Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, D.C., representing Nyrstar Gordonsville, LLC.

Before: Judge Andrews

Pursuant to section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977 (AAct@), 30 U.S.C. ' 801, et. seq., and 29 C.F.R. ' 2700.45, the Secretary of Labor (ASecretary@) on November 23, 2012, filed an Application for Temporary Reinstatement of miner, Vicki LaRue (“LaRue”) to her former position with Nyrstar Gordonsville, LLC, (ANyrstar@ or ARespondent@) at the Elmwood/Gordonsville Mine pending final hearing and disposition of the case. This Temporary Reinstatement proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judge (“ALJ”) pursuant to Sections 105 and 106 of the Act.

On June 6, 2012, LaRue initially filed a Discrimination Complaint alleging, in effect, that her termination was motivated by her protected activity.^{^[1]} In the Secretary=s application, she

represents that the complaint was not frivolously brought, and requests an Order directing Respondent to reinstate LaRue to her former position as a Safety Advisor in the Nyrstar Mine’s Safety, Health, and Environmental Department. This case was assigned to the undersigned ALJ on December 3, 2012.

Respondent filed a request for hearing on December 3, 2012. Concurrent with this request, a Prehearing Brief in Opposition to the Application for Temporary Reinstatement was submitted. Respondent argued that the Secretary was without authority to file the Application since her investigation had already concluded with a determination that there was no 105(c) violation. The Secretary filed a Pre-Hearing Memorandum of Law addressing both issues raised on December 6, 2012. Respondent filed a Reply on December 7, 2012.

An expedited hearing was held in Nashville, Tennessee on December 13, 2012. The Secretary presented the testimony of LaRue and the Respondent did have the opportunity to cross-examine the Secretary=s witness and present testimony and documentary evidence in support of its position. 29 C.F.R. ' 2700.45(d). Both parties offered exhibits, and all were marked and admitted without objection.^{^[2]}

Reopening a Temporary Reinstatement Determination

The Respondent contends:

That the Secretary’s unprecedented reopening of a closed Section 105(c)(2) investigation to file for a Temporary Reinstatement based on “new information” is beyond her statutory authority;

The reversal of the prior final decision not to seek Temporary Reinstatement was four months after the miner had already filed a section 105(c)(3) action;

That within ninety days of the miner’s complaint, the Secretary must complete her investigation and she cannot insert herself back into the case;

The Secretary’s jurisdiction over the miner’s complaint ended when she issued her notification to the miner that she would not proceed under 105(c) and she is without standing to rescind that determination, resume her investigation, and file for Temporary Reinstatement; and

There is no express or implied grant of power to the Secretary to revisit a closed investigation and then file an Application for Temporary Reinstatement particularly where a Section 105(c)(3) action is pending.

The Secretary contends:

That the statutory design and purpose of Section 105(c), as well as the basic principles of justice, support the conclusion that Congress could not have intended MSHA be precluded from reopening a Section 105(c) investigation upon receipt of new information;

There is no basis to read into statutory silence a rule that the Secretary may not reopen a Section 105(c) investigation and seek Temporary Reinstatement upon receipt of new information;

That even if there are filing delays or other noncompliance with the procedures set forth in Section 105(c) a Complainant should not be prejudiced because the government did not meet its time obligations when the Secretary comes into possession of new information and wishes to reopen the discrimination case and perform a more thorough investigation; and

It would be unjust to sacrifice investigatory accuracy for any finality due to the premature “no violation” letters sent to the Complainant.

By letter dated July 12, 2012 LaRue was informed that her complaint of discrimination under Section 105(c) of the Act had been investigated and the information gathered had been reviewed. Based on that review it was determined that discrimination within the confines of the Mine Act did not occur. Exhibit 1, Respondent’s Opposition to Application for Temporary Reinstatement.

On September 21, 2012 a letter was sent to inform LaRue that new evidence had been obtained and as a result the determination of July 12, 2012 had been rescinded and her case had been reopened. This letter also informed her that based on a review of the subsequent information the facts disclosed did not constitute a violation of Section 105(c). Exhibit 2, Respondent’s Opposition to Application for Temporary Reinstatement.

A third letter was sent to LaRue on November 21, 2012. She was informed that the letter of September 21, 2012 was being rescinded since new information had been presented to MSHA. As a result, her case was being reopened for additional investigation and further consideration. Exhibit 3, Respondent’s Opposition to Application for Temporary Reinstatement.

As an initial matter, it should be noted that the Respondent’s claim that the Secretary’s resumption of a 105(c)(2) investigation after a determination is “unprecendented,” is inaccurate. Respondent’s Reply to Secretary’s Pre-Hearing Memorandum of Law, 1. On at least one recorded prior occasion, the Secretary revoked a letter of determination and resumed a 105(c)(2) investigation even after a 105(c)(3) action had been filed. In Lawrence L. Pendley v. Highland Mining Co., 29 FMSHRC 119 (Feb. 2007) (ALJ), the Secretary reopened a 105(c)(2) investigation after a determination letter had been sent stating that the evidence did not disclose a violation of 105(c), and after a 105(c)(3) claim was filed by the miner.^{^[3]} The Secretary’s authority to reopen the investigation was not at issue in Pendley, as it appears that all parties recognized the Secretary’s authority. Hence, reopening a 105(c)(2)investigation and adverse determination has occurred before with no indication that the Secretary’s authority to do so was an issue.

The Respondent’s argument is primarily a jurisdictional one. The Respondent argues that the Secretary lacked jurisdiction to reopen a Temporary Reinstatement investigation after she had already concluded that there was no 105(c) violation. However, the legislative history of the Act makes clear that the timeframes in 105(c) were not considered to be jurisdictional. The Senate Committee stated:

It should be emphasized, however, that these time frames are not intended to be jurisdictional. The failure to meet any of them should not result in the dismissal of the discrimination proceedings; the complainant should not be prejudiced because of the failure of the Government to meet its time obligations.

S. Rep. No. 181, 95th Cong., 1^st Sess. 24 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95^th Cong., 2^nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, 3401, 2436 (1978).

The Commission has echoed this view, stating that it “has determined that the time limits in sections 105(c)(2) and (3) ‘are not jurisdictional’ and that the failure to meet them should not result in dismissal, absent a showing of ‘material legal prejudice.’” Sec’y of Labor ex rel. Nantz v. Nally & Hamilton Enterprises, 16 FMSHRC 2208, 2215 (Nov. 1994). In Nally & Hamilton, the Secretary filed the Temporary Reinstatement with the Commission more than eight months after the miner filed his discrimination complaint. Id. Furthermore, the Commission noted that the “record disclose[d] no reason for the delay.” Id. Even under these more egregious circumstances, where the Secretary failed to adequately investigate within the timeframes in 105(c), with no apparent excuse, the Commission did not dismiss the case.

The Respondent cites North Fork Coal Co. v. FMSHRC, 691 F.3d 735 (6th Cir. 2012), and Vulcan v. FMSHRC, 2012 WL 5259008 (7th Cir. Oct. 25, 2012), for the proposition that a temporary reinstatement cannot be ordered in a 105(c)(3) action. However the holdings of these cases do not apply here. In both these cases, the Sixth and Seventh Circuits held that a temporary reinstatement dissolved after the Secretary determined that no discrimination occurred. However, at issue here is the different scenario where the Secretary seeks to reopen an investigation into whether discrimination occurred. Neither of these cases addresses this question.

Section 105(c)(2) grants the Secretary authority to file a complaint for temporary reinstatement of a miner who was discriminated against for exercising his statutory rights. Nothing in the Act, Regulations or prior Commission cases prevents the Secretary from reopening prior adverse determinations that are not final orders of the Commission.^{^[4]} Furthermore, the Respondent has not alleged any prejudice stemming from the Secretary reopening the discrimination investigation.^{^[5]} The Secretary has a special duty—articulated in the Act and legislative history—to provide expedited relief to miners suffering discrimination at work. Ideally, the Secretary would discharge this duty expeditiously. However, in cases like this, it would serve an added injustice against the very miners the Act sought to protect if they were punished because the Secretary failed to act within the prescribed timeframes.

Since the 90 day period in 105(c) is not jurisdictional, and in the absence of any statutory or regulatory prohibition, there is nothing to prevent the Secretary from reopening an initial adverse determination in the interest of justice. Therefore, I specifically find that the prior investigations and administrative determinations of July 12, 2012 and September 21, 2012 may be reopened, reinvestigated, and readjudicated.

Temporary Reinstatement

Relevant law

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any protected right under the Mine Act. The purpose of the protection is to encourage miners Ato play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination which they might suffer as a result of their participation.@ S. Rep. No. 95-181, at 35, 1977 U.S.C.C.A.N. at 3435.

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought if it Aappears to have merit.@ S. Rep. No. 95-181, at 36-37, 1977 U.S.C.C.A.N. at 3436-3437. In addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also equated Anot frivolously brought@ to Areasonable cause to believe@ and Anot insubstantial.@ Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990).

Temporary Reinstatement is a preliminary proceeding, and narrow in scope. As such, neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case. Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The substantial evidence standard applies.^{^[6]} Sec=y of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the purpose of determining Awhether the evidence mustered by the miners to date established that their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d at 744.

In order to establish a prima facie case of discrimination under section 105(c) of the Act, a complaining miner must establish (1) that he engaged in protected activity and (2) that the adverse action complained of was motivated in any part by that activity. Sec=y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec=y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).

However, in the instant matter, LaRue need not prove a prima facie case of discrimination with all of the elements required at the higher evidentiary standard needed for a decision on the merits. Rather, the same analytical framework is followed within the Areasonable cause to believe@ standard. Thus, there must be Asubstantial evidence@ of both the applicant=s protected activity and a nexus between the protected activity and the alleged discrimination. To establish the nexus, the Commission has identified these indications of discriminatory intent: (1) hostility or animus toward the protected activity; (2) knowledge of the protected activity; and (3) coincidence in time between the protected activity and the adverse action. Sec=y of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has further considered the disparate treatment of the miner in analyzing the nexus requirement. Secretary 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 Commission has acknowledged that it is often difficult to establish a Amotivational nexus between protected activity and the adverse action that is the subject of the complaint.@ Sec=y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999).

The evidence

On June 6, 2012, Ms. LaRue filed a Discrimination Complaint, which included a handwritten Discrimination Report. In her Complaint, she reported that on May 31, 2012, she was terminated from her job as a Safety Advisor for Nyrstar TN Mines.

In the Summary of Discriminatory Action she listed three reasons:

1. Defending a miner in a 105(g) [sic] complaint.^{^[7]}

2. Raising safety concerns with management.

3. Discussing safety concerns and hazards with a miners’ representative in which I was discharged the next day.

Exhibit A, Application for Temporary Reinstatement.

Following the filing of the complaint on June 6, 2012, the Secretary performed the investigations and determinations set forth in the reopening section above in July, September and November. Then, on November 23, 2012 the Secretary’s Application for Temporary Reinstatement of Vicki LaRue was filed.

Submitted with the Application for Temporary Reinstatement was the November 23, 2012 Affidavit of Carolyn James (“James”). The affidavit, in pertinent part, is as follows:

1. I am the Assistant Director in the Technical Compliance and Investigation Office of the Mine Safety and health Administrative (“MSHA”) of the United States Department of Labor. I am charged with the national supervision and oversight of special investigations arising under the Federal Mine Safety and Health Act, 30 U.S.C § 801 et seq., including investigations of complaints of discrimination made by miners under Section 105(c) of the Mine Act, 30 U.S.C. § 815(c).

. . . .

3. I have reviewed the above-captioned discrimination complaint involving Vicki LaRue and Respondent’s Elmwood/Gordonsville Mine (“the Mine”). I find that there is reasonable cause to believe that Mrs. LaRue was terminated because of her exercise of statutory rights.

4. Mrs. LaRue states that she complained about specific health and safety hazards at the Mine to Respondent’s personnel. Mrs. LaRue also states that she complained to Respondent’s personnel regarding their failures to adequately respond to safety and health complaints made by other miners. Such complaints are protected activities under Section 105(c).

5. On May 30, 2012, Mrs. LaRue voluntarily met in private with a designated representative of miners in order to discuss how internal safety and health complaints might be better handled by Respondent and its personnel. The designated representative of miners with whom Mrs. LaRue voluntarily met was also a Section 105(c) complainant with a pending complaint against Respondent. Voluntary association with a designated miner’s representative or discrimination complainant is protected activity under Section 105(c).

6. Respondent’s personnel subsequently learned of Mrs. LaRue’s private meeting with the designated representative of miners and Section 105(c) complainant. On May 31, 2012, one day after Mrs. LaRue’s voluntary meeting with the designated miner’s representative and Section 105(c) complainant, she was fired by Respondent, an adverse employment action. Respondent claims that Mrs. LaRue was filed [sic] because, during her May 30 meeting with the designated representative of miners and Section 105(c) complainant, she allegedly attempted to dissuade him from making Section 105(g) [sic]^{^[8]}hazard complaints to MSHA. Mrs. LaRue disputes this characterization of the May 30 meeting.

7. There is reasonable cause to believe that Respondent’s discharge of Mrs. LaRue was motivated in at least some part by her exercise of protected activities. Respondent’s personnel had actual knowledge of Mrs. LaRue’s safety complaints and voluntary association with the representative of miners and Section 105(c) complainant. There is reasonable cause to believe that Respondent was dismissive of and bore animus towards Mrs. LaRue’s efforts to ensure that safety complaints were adequately handled at the Mine. Mrs. LaRue’s protected activates were also proximate in time to her discharge, especially her May 30^th meeting with the designated representative of miners and Section 105(c) complainant, a meeting that occurred just one day before her May 31^st discharge and which the company admits caused her discharge. Based on these facts, I find that Mrs. LaRue’s case is not frivolously brought.

Exhibit B, Application for Temporary Reinstatement.

Testimony of Vicki LaRue

Vicki Jones LaRue began working at Nyrstar on June 1, 2011 as a safety advisor. Tr. 11, 12. Her responsibilities were to follow the safety programs and policies and ensure compliance. Tr. 12. She reported to a superintendent named Gerald Lira (“Lira”) and a manager of safety and health. Tr. 12. LaRue was not considered a management employee, she had no power to discipline others, and no one reported to her. Tr. 13. Her job profile is included as GX-1. Prior to working at Nyrstar, she worked for MSHA in the Nashville, Tennessee office as a mine inspector for metal/nonmental. Tr. 11-12. In that capacity, she was responsible for inspecting the Nyrstar mine. Tr. 12.

At Nyrstar, LaRue’s daily activities included reporting to the office early in the morning, reviewing the RIMS database where miners reported safety and health hazards, performing site training for contractors, and performing safety audits as needed. Tr. 15. The RIMS program allowed miners to report hazards in a book they carried, and then to either fix the hazards or pass the books along to their supervisors or team leads. Tr. 15. The team lead would then enter the hazard into the database and assign it to the department who would be responsible for repairing the hazard. Tr. 16. After that individual resolved the problem, he would close it out in the computer by indicating what he did to correct the problem. Tr. 17. LaRue testified that she was not notified when an incident was entered into the RIMS database. Tr. 17. The only way she and others in the safety department knew of RIMS was by going into the system and pulling them up. Tr. 17.

The Nyrstar mine is an underground zinc mine that miners enter through a mile-long decline with a hoist that runs approximately 1,200 feet underground. Tr. 17-18. A skip, or hoist, is used to bring materials into and out of the mine. Tr. 18. LaRue testified that the hoistman made her aware of problems with the sensors, cameras, and skip on the hoist. Tr. 18. LaRue asked the hoistman if the problem had been entered into the RIMS database, and the hoistman confirmed that it had. Tr. 19. She proceeded to go to the hoist so she could better understand the problem. Tr. 19.

The primary problem was on the skip, which is a large bucket with a door used to carry materials. Tr. 19-20. The sensors and camera, if working properly, indicate when the door is open or shut. Tr. 21. However, LaRue testified that the sensors and cameras often broke at the same time. Tr. 21. If the sensors and cameras were not working correctly, there are times when the door hangs open, which leads to damage on the skip. Tr. 20. The hoistman, who was at the surface, and the underground skip level would radio each other back and forth in order to communicate if the door was open. Tr. 21. But LaRue testified that this process was usually inefficient and problematic. Tr. 21.

In order to fix the skip, several tons of materials must be dropped from the skip down to the bottom of the shaft. Tr. 21. LaRue testified that this process puts miners at risk who must fix the skip and clean the accumulations that result from the dumping of materials. Tr. 20.

After better understanding the problem with the skip, LaRue went to the electrical department to talk to the electrical foreman, Danny Bean (“Bean”), about the problems with the hoist. Tr. 19, 22. LaRue testified that she spoke with Bean and he responded that it was either not an issue or not a safety issue. Tr. 22.

After continuing complaints, LaRue talked to another electrician, in order to determine if the issue was more serious than Bean stated. Tr. 23. LaRue proceeded to file RIMS on the issue in the hopes that it would be taken more seriously if the complaint originated in the safety department. Tr. 24; GX-2A, 2B, 2C. Bean closed out the RIMS on 10/10/2011, and wrote that the sensor was replaced. Tr. 28. However, LaRue testified that the issue with the hoist had not been fixed, so she spoke with the electrician who worked on the problem, Paul Denius (“Denius”). Tr. 30.

LaRue also testified about the RIMS complaint that she filed concerning the continuous running of the blowers, stating that it constituted a fire hazard. Tr. 29-30. She testified that she spoke with Denius because he worked on the electrical problems, but stated that she did not know at the time that Denius had filed RIMS on the problems. Tr. 31-32. During her conversations with Denius, he stated that he had been submitting a large number of RIMS. Tr. 32. However, upon searching the system, LaRue noticed that many of his RIMS had not been entered into the system. Tr. 32. She testified that Denius would have submitted his RIMS to Bean, and she did not know at the time why they were not being entered into the system. Tr. 34.

LaRue testified that she reported this issue to her manager, Wes Cruea (“Cruea”), and that he and Denius’s supervisor, Bill Cole (“Cole”), met to discuss the issue. Tr. 34-35. LaRue and Denius went underground for her to observe and take photos of some of the problems that Denius had reported. Tr. 35-36. LaRue made a Powerpoint presentation of the photos and distributed it to Greg Bowkett (“Bowkett”), Bean, Tim Zuroweste (“Zuroweste”), Cole and Nathan Wright (“Wright”), all individuals responsible for correcting the hazards. Tr. 36-38. The only response that LaRue received was from Zuroweste asking her to further pinpoint one of the hazards. Tr. 38.

LaRue testified that after all this happened, Denius came to her and told her that he was being demoted by being transferred from working underground to the mill, which meant a loss of possible overtime and loss of use of the company truck. Tr. 39-40. LaRue spoke with Cole, and Cole told her that Denius was needed in the mill and that it was not a demotion. Tr. 40-41. LaRue told Cole that if Denius felt it was retaliation, it would likely be interpreted as such, and Cole became upset. Tr. 41. LaRue testified that Cruea received an email from Cole complaining about her conversation with Cole, saying that she threatened Cole “with MSHA.” Tr. 41. As a result of this email, Cruea wrote LaRue a slip that said she needed to work better with supervisors, and a new program of communication between employees and supervisors was implemented. Tr. 42; GX-E.

LaRue testified that one of the complaints in the final months of employment that drew her attention was dust control on-site. Tr. 44. The problem was caused in the mill from lime buildup on the travelways. Tr. 44-45. LaRue talked with James Jerman (“Jerman”) about getting a water truck on-site to remediate the dust problem. Tr. 46. She found out later that the issue was still not resolved when, during a meeting with Cruea, Joe Anderson (“Anderson”) dropped by to tell her that the problem was still not being fixed. Tr. 47. Hearing this, Cruea told LaRue to make sure she took care of the problem. Tr. 47. LaRue contacted Bowkett and the mill manager, James Armstrong (“Armstrong”), and had a tense discussion with them to figure out who was responsible for the matter. Tr. 47. She testified that because of budgetary limitations, neither wanted to take charge of fixing the problem. Tr. 48. After the meeting, Bowkett said that he’d handle the problem, and the result was that a water truck was procured. Tr. 48. However, this did not resolve the problem because they did not get the manpower needed to operate the truck. Tr. 48-49.

LaRue testified that on May 30, 2012, the day before she was fired, MSHA inspectors came to the mine to investigate hazard complaints. Tr. 50-51. LaRue called Denius to serve as the miner’s representative. Tr. 50-51. By this time, Denius had been fired, but still served as a miner’s representative. Tr. 51-52. Denius had some free time, and LaRue testified that she wanted to get his advice about some electrical issues, so they spoke outside in the breezeway. Tr. 54-55. After speaking for a little while, LaRue told Denius that she was on her way to McDonald’s for iced tea and invited him along. Tr. 54-55.

LaRue testified that at the time, the mine was getting a lot of 103(g) complaints. Tr. 55. LaRue was concerned because the proper procedure was for the miner to first bring complaints to his supervisor, then the superintendent, then the safety department, and then to MSHA. Tr. 55. Instead, complaints were going straight to MSHA, so LaRue placed suggestion boxes outside her door in order to allow miners to submit anonymous complaints. Tr. 56. LaRue told Denius that management believed he was the one turning in many of the complaints to MSHA, but denied ever telling him that he should not be filing complaints with MSHA. Tr. 56-57, 59. Denius denied submitting the complaints, and told her that the boxes would not help because the miners had been told not to come to the safety department with their complaints. Tr. 57-58.

After she returned from McDonald’s, LaRue went back to the mine and Sherri Allen (“Allen”) came to her and asked why she called Denius in as a miner’s representative. Tr. 59-60. LaRue responded that she was instructed to call Denius first if MSHA inspected. Tr. 60. LaRue described Allen as a “coworker, [and] very nice lady,” who she talked with frequently. Tr. 62. Allen asked LaRue what was happening, and LaRue responded that she had just come back with Denius Tr. 62. LaRue told Allen that Denius told her that he was not the one turning in the hazard complaints to MSHA. Tr. 62. Allen suggested that Denius was lying. Tr. 63. LaRue responded that she would likely get fired for talking with Denius because Denius was considered a troublemaker at the mine. Tr. 63.

LaRue went to talk to Bowkett to tell him that miners were being told not to come to the safety departments with complaints. Tr. 60. Bowkett asked her who provided her with this information, and she refused to tell him. Tr. 60-61. Bowkett told LaRue that miners were told to use the chain of command with any complaints. Tr. 61.

On May 31, Todd Hale (“Hale”), the superintendent from East Tennessee, asked LaRue to meet him and Bradley Bishop, the human resources superintendent. Tr. 63. Bishop asked LaRue if she went off-site with Denius, and she responded “yes.” Tr. 64-65. Then Bishop asked LaRue if she was aware that Denius had a discrimination case pending against Nyrstar, and she responded “yes.” Tr. 65. Bishop then told LaRue that until further notice and until an investigation was complete, she was on administrative leave. Tr. 65.

LaRue went home, and there was a message on her phone from a safety advisor named Danny Williams (“Williams”), asking her to come back to talk with Bishop. Tr. 66. She came in and met with Bishop, Hale, and Will Ames (“Ames”), who is now the superintendent for Middle Tennessee. Tr. 66. Bishop told LaRue that they were letting her go and when she asked for a reason for her dismissal, he said it was because she jeopardized their case with Denius. Tr. 66-67. He characterized her meeting with Denius as a violation of the code of conduct. Tr. 67. They said that they did not talk with Denius because she had already admitted what she had done. Tr. 67.

On cross-examination, LaRue testified that her responsibilities included identifying safety hazards at the mine. Tr. 69. She also testified that during her orientation she reviewed and understood the company code of conduct. Tr. 71. The Respondent admitted that LaRue was a miner under the Act. Tr. 75-76.

Testimony of Sherri Allen

Sherri Allen has been working as a wellness coordinator for Nyrstar for two years. Tr. 77-78. Her responsibilities include administering health and wellness programs, providing support for workers’ compensation claims, participating in MSHA reporting, and supporting the health and safety team. Tr. 78. She worked with LaRue in the safety department and reported to Ames. Tr. 78.

Allen testified that she had a friendly relationship with LaRue and talked with her often. Tr. 78-79. Allen testified that on May 30, 2012, she and LaRue were standing outside the change house when they had a two to five minute casual conversation about LaRue’s discussion with Denius. Tr. 79. According to Allen, LaRue told her, “I may get fired for it, but I took Paul Denius off site and talked to him and told him that enough was enough with the MSHA complaints.” Tr. 80. LaRue also stated that Denius swore that he didn’t make the complaints to MSHA. Tr. 80. Allen testified that she interpreted the “enough is enough” statement to indicate that LaRue told Denius to stop making complaints. Tr. 80. Allen did not recall making any comments back. Tr. 80.

Following this conversation, Allen went back to her office and called Hale, who was acting manager of safety and health, and reported the conversation with LaRue. Tr. 81. She testified that she did so because she believed that LaRue’s discussion with Denius was a violation of the Act and a “threat to the business.” Tr. 81, 82. Hale thanked Allen and said that he would take care of the situation. Tr. 82.

Later in the day, Allen was in the hall outside of Bishop’s office, when he asked her to come in to discuss her conversation with LaRue. Tr. 82-83. She testified that she told Bishop the same thing she had told Hale, and Bishop thanked her. Tr. 83. On the following Monday or Tuesday, Bishop asked Allen to send him an email stating what LaRue told her. Tr. 83. The email, which was admitted as Respondent’s Exhibit C, incorrectly states the date of LaRue’s conversation with Denius as May 31. Tr. 84; RX-C. Allen testified that other than the date mistake, it is an accurate account of her conversation with LaRue. Tr. 84.

On cross-examination, Allen testified that she did not remember anything else about the conversation with LaRue other than what she stated in her direct testimony. Tr. 87-88. She further stated that she is not certain if she knew at the time that Denius was a 105(c) complainant. Tr. 89.

Testimony of Anthony Todd Hale

Anthony Todd Hale has worked as the safety and health superintendent at East Tennessee mines since January 2012. Tr. 92. His responsibilities include overseeing all safety and health matters, producing safety and health policies and procedures, performing safety review meetings with teams, conducting safety walks, and educating employees about safety and health issues. Tr. 92. Hale has three people that report to him, and he in turn reports to Cruea. Tr. 92.

Hale testified that he was working at East Tennessee on May 30, and at Middle Tennessee on May 31. Tr. 92-93. At the time, he was the acting safety and health manager, filling in for Cruea, who was away on vacation. Tr. 93.

Hale testified that on May 30, he received a telephone call from Allen, stating that there was a situation at the Mid-Tennessee location. Tr. 93. Allen told Hale that “LaRue had come into her office and told her that she had taken Paul Denius off site and had a conversation with him, and she told him not to call in any more MSHA complaints because it wasn’t doing him any good nor the company any good.” Tr. 93-94. Hale thanked Allen, and said that he would pass the matter along to human resources. Tr. 94. Hale testified that he took no notes during or after his conversations with Allen. Tr. 102-103. Hale then proceeded to discuss the matter with the human resources manager, Clint Milner (“Milner”), who said that he would handle the matter. Tr. 94. Hale testified that he understood this to mean that Milner would investigate and get in contact with the human resources department at Mid-Tennessee. Tr. 95.

Hale testified that on May 31, he had a meeting with LaRue and Bishop in Cruea’s office. Tr. 95. In this meeting, Bishop told LaRue that there were “reports that she had taken Denius off site in her personal vehicle,” and he asked her for her side of the story.^{^[9]}Tr. 96. Hale testified that LaRue responded that she and Denius went off site to have some iced tea, and that she told Denius “to quit calling in the MSHA complaints because it wasn’t doing the company any good or him any good and to knock it off.” Tr. 96. She also stated that she felt like she was looking after the best interest of the company. Tr. 96.

Bishop then told LaRue that she was being “stood down pending an investigation,” and that they would call her. Tr. 97. Hale testified that this was standard company procedure in such a situation. Tr. 97. He stated that Bishop and Milner had several discussions, and that he was part of one of them. Tr. 97. This meeting took place in the office of the general manager of Nyrstar Tennessee, Craig Jetson (“Jetson”). Tr. 97-98. Hale described Jetson as the individual who would be responsible for terminating an employee. Tr. 98. Present in this meeting was Hale, Bishop, Milner, Jetson, and Archie Eksteen (“Eksteen”), the deputy general manager. Tr. 98. They characterized LaRue’s conduct as a “serious offense” and stated that she violated the code of business conduct. Tr. 98-99. They stated that LaRue should be terminated because she had harassed a miner’s representative in violation of the code of business conduct for harassment. Tr. 99-100. On cross-examination, Hale testified that no one took notes at this meeting while he was present. Tr. 105.

On cross-examination, Hale testified that at the time he knew that Denius was an electrician and miner’s representative who had been terminated and had a discrimination complaint against Nyrstar. Tr. 101. However, Hale did not know anything about Denius’s 105(c) complaint or any of his prior complaints against Nyrstar. Tr. 102. Hale further stated that he never spoke with Denius, and that he did not know if anyone at the company had spoken with him. Tr. 104.

Hale stated on cross-examination that Bishop was taking notes during the May 31 meeting with him, Bishop and LaRue. Tr. 105. Hale described how after LaRue admitted to taking Denius off site in her personal vehicle for iced tea and telling him to stop making complaints to MSHA, Bishop read to LaRue his notes to ensure accuracy. Tr. 105-106. Hale testified that LaRue agreed to the accuracy of the notes, but that she had not been asked to sign the document. Tr. 106.

Hale testified that LaRue had violated the code of conduct because she engaged in harassment. The Code of Business Conduct was admitted as Respondent’s Exhibit B, and Hale located the harassment policy on the first page under the heading, “Our People.” Tr. 107. This provision states, “We are committed to maintaining a work environment that is free from discrimination or harassment.” Tr. 107; RX-B. Hale testified that this is the only mention of a policy on harassment. Tr. 107. He further testified that no one consulted the code of conduct during the meeting with Eksteen and Bishop. Tr. 111. Hale first looked at the code of conduct after LaRue had been stepped down. Tr. 111. In response to questions by the court to interpret the policy, Hale testified that the only thing that LaRue did that constituted harassment was her allegedly telling Denius to stop calling in complaints. Tr. 108-109.

Testimony of Wesley Adam Cruea

Wesley Adam Cruea has worked as the safety and health manager for all Nyrstar Tennessee mines since October 2011. Tr. 114. In this capacity, he manages all the safety management systems for the six mines of Nyrstar Tennessee and coordinates between all the safety managers. Tr. 114.

Cruea explained that the RIMS system is a database used to manage hazards and incident reports, safety statistics, trend analysis, equipment damage, and near-miss reporting. Tr. 115. The safety department uses the RIMS system for trend analysis and reporting. Tr. 115. Cruea described several persons to which one can report safety issues, including team leaders, step-ups, and supervisors. Tr. 115-116. Follow up of a report made to the RIMS system occurs through safety meetings, pre-shift meetings, and through supervisors. Tr. 116-117.

Cruea testified that in regard to Denius’s complaints that were not in the RIMS system, Cruea met with Denius to discuss the matter. Tr. 117-118. Cruea brought these concerns to Cole and Bean, and they followed up with questions and feedback for Denius. Tr. 118. Cruea testified that Denius’s reports were entered into the RIMS system as soon as they were made aware of them. Tr. 119. In response to the question of whether Denius’s transfer from working underground to the mills was a demotion, Cruea responded, “I’m not aware of that.” Tr. 119.

Cruea described LaRue’s position at Nyrstar as including educating the workforce on health and safety matters, and identifying hazards. Tr. 119-120. Part of her responsibilities included handling safety issues that came to her attention, and working with miners, supervisors and managers in resolving those issues. Tr. 120. Cruea referred to LaRue as an “expert inspector,” and “among the best” at distributing miner’s rights materials. Tr. 120-121. Cruea also testified that LaRue’s job performance and work ethic were “among the best,” referring to her as “very dedicated.” Tr. 121-122. Cruea said that LaRue’s only problem was “follow-through” and “getting people to hook on and had some trouble with getting things corrected the way she was approaching individuals.” Tr. 122. Cruea discussed briefly LaRue’s Individual Performance Review, where she was given a 3/6 score, defined as “Threshold.” Tr. 123; RX-D. Cruea repeatedly described LaRue having difficulty interacting with people. Tr. 124-125.

Cruea testified that he was impressed by the document she sent him cataloging the problems that Denius was complaining about. Tr. 126. He described the effusive praise he gave her for her photos and presentation. Tr. 126. Cruea testified that he was not involved in the decision to terminate LaRue. Tr. 129.

On cross-examination, Cruea testified that LaRue was in large part responsible for starting the miner’s representative program at Nyrstar Tennessee. Tr. 132-133.

Findings and conclusions

Contentions

The Respondent contends:

That Complainant did not engage in any protected activity and her termination was not motivated in any part by any protected activity;

That Complainant was a member of the Safety Department and there are no facts to support any claim that she engaged in safety activities outside of her normal job duties;

That she told the miner’s representative and 105(c) complainant to stop filing hazard complaints with MSHA, an unauthorized and serious violation the Mine Act and company policy; and

That she admitted on investigation she had done this, and the employment action was entirely appropriate and the complaint of discrimination was frivolously brought.

The Secretary contends:

That Complainant engaged in protected activity by complaining to Respondent’s personnel about specific conditions and practices at the mine that posed safety and health hazards to miners;

Complainant also engaged in protected activity by complaining about failures by Respondent’s personnel to adequately respond to safety complaints made by other miners at the mine;

Complainant further engaged in protected activity by meeting with a recently discharged representative of miners, who was also a Section 105(c) complainant, about the unsatisfactory handling of safety concerns at the mine;

That when Respondent’s personnel learned of this meeting, they interrogated and then discharged Complainant from her employment the day after the meeting; and

There is reasonable cause to believe Complainant was discriminated against for the exercise of statutory rights and the Application for Temporary Reinstatement was not frivolously brought.

Decision

As set forth in more detail below, I find that any one of the three alleged instances of protected activity is supported by substantial evidence, and that taken together with the discussion of each element of the analytical framework the Application for Temporary Reinstatement of Vicky LaRue should be granted.

Protected activity

Section 105(c)(1) states, in relevant part:

No person shall discharge or in any manner discriminate againstYor otherwise interfere with the exercise of the statutory rights of any minerYin any coal or other mine subject to this chapter because such minerYhas filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the operator's agentYof an alleged danger or safety or health violation in a coal or other mine.

30 USC ' 815(c)(1)(Emphasis added)

1. Complaints Concerning the Hoist:

LaRue testified that she made numerous complaints concerning safety problems with the sensors, cameras, and the skip on the hoist. Tr. 18-30. She complained that these problems put miners at risk, and sought to get the hoist repaired. Tr. 21-22. She testified that she went to the electrical department and spoke with foreman Bean several times, but he refused to fix the problems. Tr. 19-22. On September 30, 2011, she filed reports in the RIMS system, and though the complaints were closed out, she reported that the problems had not been fixed. Tr. 28-30; GX-2A, 2B, 2C.

2. Complaints Concerning the Dust Problem:

Within the last few months of her employment, LaRue also complained about the hazard of dust control on site. Tr. 44. She testified that she received complaints and was concerned about piles of lime that built up and blew around. Tr. 45-46. LaRue discussed the issue with James Jerman from Operations, and suggested utilizing a water truck to remedy the dust issue. Tr. 46. A short time later, Cruea witnessed a miner named Joe Anderson tell LaRue that the problem had not been fixed. Tr. 46-47. LaRue sent an email to the operations manager, Bowkett, and the mill manager, Armstrong, inviting them to meet to take care of the problem. Tr. 47. The result was that they got a water truck, but did not get the personnel to operate the truck. Tr. 48. Because the problem was still not fixed, LaRue told Bowkett again that the matter needed to be resolved. Tr. 49. He responded that he did not have time to worry about dust. Tr. 49.

3. LaRue’s Meeting with Denius:

On May 30, 2012, LaRue went off site with Paul Denius and discussed conditions at the Nyrstar mine. Denius was a miner’s representative and had a discrimination complaint against Nyrstar. Tr. 52. LaRue testified that in the course of her conversation with Denius, she told him that management believed he was the person submitting many of the complaints to MSHA. Tr. 56-57. Denius denied submitting the complaints and told her that miners had been told not to bring complaints to the safety department. Tr. 57-58. LaRue testified that upon returning to her office, Allen asked LaRue what was happening. Tr. 62. LaRue responded that she had gone off site with Denius and that he had told her that he was not the person filing complaints with MSHA. Tr. 62. LaRue also added that she would likely get fired for talking with Denius because he was widely considered a troublemaker at the mine. Tr. 63.

Allen testified LaRue told her that while out with Denius she told him “enough is enough with the MSHA complaints.” Tr. 80. Allen quickly relayed her conversation with LaRue to Hale, the acting manager of safety and health. Tr. 81. Hale testified that upon receiving the information from Allen, he spoke with Milner in human resources. Tr. 94. Hale then had a meeting with LaRue and Bishop, and on the day following her conversation with Denius, LaRue was “stood down pending an investigation.” Tr. 97. Later that day, LaRue was terminated. Tr. 99-100.

Though there are inconsistencies in the testimony concerning the conversation between LaRue and Allen and the meeting between LaRue, Hale and Bishop, these inconsistencies need not be resolved in this proceeding. The Commission has stated that it is “not the judge's duty, nor is it the Commission's, to resolve the conflict in testimony at this preliminary stage of proceedings.” Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). LaRue’s testimony concerning her complaints and conversations provide sufficient evidence that she engaged in protected activities.

I also note Investigator James found that LaRue’s complaints about specific health and safety standards to mine personnel and their failure to adequately respond to those complaints were protected activities under Section 105(c). James also found that the voluntary, private meeting with a designated representative of miners and Section 105(c) complainant against Respondent was protected activity. Exhibit B, Application for Temporary Reinstatement.

Nexus between the protected activity and the alleged discrimination

Having concluded that LaRue engaged in protected activity, the examination now turns to whether that activity has a connection, or nexus to the subsequent adverse action, namely the May 31, 2012 termination.

The Commission has recognized that a nexus between protected activity and a subsequent adverse action is rarely supplied exclusively by direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. More often, the determination of nexus is made by the trier of fact drawing an inference from circumstantial evidence. Id. In the instant case, inferences may be drawn from the evidence presented.

Knowledge of the protected activity

The record shows that management at Nyrstar had knowledge of all three instances of protected activities described above. With regards to LaRue’s complaints concerning the hoist, she made repeated complaints to the electrical foreman about the hazard, and nothing happened. Tr. 19-22. LaRue filed RIMS reports on the hazards, which proceeded up the chain of command. Tr. 115-117; GX-2A, 2B, 2C.

With regards to LaRue’s complaints about dust hazards, LaRue similarly first spoke with individuals at the appropriate department to remedy the hazard. Tr. 46. During a meeting with Cruea, someone came to her to complain that the problem was still not resolved. Tr. 47. Cruea told LaRue to take care of the problem, and she met with Bowkett and the mill manager, Armstrong. Tr. 47. The hazard was ultimately addressed by getting a water truck, but LaRue testified that they did not provide the personnel necessary to operate the truck. Tr. 48-49.

Management at Nyrstar were also aware that LaRue met off-site with the miner’s representative, Denius, to discuss safety and health matters. Allen testified that she called the acting manager of safety and health, Hale, to tell her that LaRue had met with Denius. Tr. 82-83. Allen also recounted the events to Bishop, and Bishop asked her to send an email documenting what LaRue allegedly told her. Tr. 83. Allen sent the email, which described her conversation with LaRue concerning Denius, on June 5, 2012 to Bishop and Cruea. RX-C. Hale also testified that Allen told him about LaRue’s conversation with Denius. Tr. 93-94. Hale testified that it was because of LaRue’s meeting with Denius that LaRue was “stood down” and terminated the following day. Tr. 97, 99-100.

Accordingly, I find the evidence on this record establishes Respondent had knowledge of LaRue’s protected activities.

Coincidence in time between the protected activity and the adverse action

LaRue was suspended and terminated on May 31, 2012, and she engaged in protected activity at multiple times during the final nine months of her employment at Nyrstar. Her complaints concerning the hoist hazards occurred in September 2011, and the RIMS reports were filed on September 30, 2011. GX-2A, 2B, 2C. Her complaints concerning the dust hazards were made in the final few months of her employment. Tr. 44. And her meeting with Denius occurred on May 30, 2012, which was the day prior to her suspension and termination. Tr. 54-55.

The Commission has stated AWe >appl[y] no hard and fast criteria in determining coincidence in time between protected activity and subsequent adverse action when assessing an illegal motive. Surrounding factors and circumstances may influence the effect to be given to such coincidence in time.=@ Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34, 47 (Jan. 1999)(quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991). The Commission has noted, A[a] three week span can be sufficiently close in time@, especially when there is evidence of intervening hostility, animus or disparate treatment. CAM Mining, LLC, 31 FMSHRC at 1090. Likewise, in All American Asphalt, a 16-month gap existed between the miners= contact with MSHA and the operator=s failure to recall miners from a layoff; however, only one month separated MSHA=s issuance of a penalty resulting from the miners= notification of a violation and that recall failure. Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999).

Investigator James, in her affidavit, found LaRue’s protected activities to be proximate in time to her discharge, especially the meeting with Denius just one day before. Exhibit B, Application for Temporary Reinstatement.

I find that the time span between each instance of protected activity and the adverse employment action is sufficient to establish a coincidence in time.

Hostility or animus towards the protected activity

“Hostility towards protected activity--sometimes referred to as ‘animus’—is another circumstantial factor pointing to discriminatory motivation. The more such animus is specifically directed towards the alleged discriminatee's protected activity, the more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 2 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). Here, Respondent attempted to show by testimony that there was no animus toward LaRue or the protected activity. The safety and health manager for Nyrstar Tennessee mines, Cruea, testified that LaRue was an exemplary employee. Tr. 120-122. He repeatedly indicated that she is an “expert” in various areas of safety, Tr. 120-121, and “was among the best” at distributing miners’ rights materials, Tr. 120-121. He described her job performance and work ethic as “among the best,” and referred to her as “very dedicated.” Tr. 121-122.

However, the job performance that he referenced in his testimony indicates that LaRue was not held in as high regard as Cruea indicated. LaRue’s Individual Performance Review rates her as 3/6, which is labeled “Threshold,” and defined as “All or most performance standards/objectives met with opportunities for some improvement to bring performance up the standards required for the role.” RX-D.

LaRue testified that after she met with Cole concerning hazards and Denius’s demotion, she was told that Cruea received an email stating she had threatened Cole. Tr. 41. Cruea drafted Opportunity for Improvement paperwork criticizing LaRue for her conversation with Cole. GX-4. Furthermore, Hale testified that the reason LaRue was terminated on May 31 was due to her meeting with Denius on May 30. Tr. 97-100.

Investigator James found there was reasonable cause to believe Respondent was dismissive of and bore animus towards LaRue’s efforts to ensure safety complaints were adequately handled at the mine. Exhibit B, Application for Temporary Reinstatement.

Considering the record as a whole, I find an inference may be drawn that Respondent had hostility or animus towards LaRue’s protected activities.

Disparate Treatment

Mine management relied on a single term, harassment, in the Nyrstar Code of Business Conduct. However, also in the Code is the framework for a graduated type of disciplinary scheme:

Those who fail to comply with the Code or Nyrstar policies and procedures will be subject to a range of disciplinary actions, up to and including dismissal, depending on the seriousness of the action. (emphasis added).

RX-B, Tr. 110, 111.

Management seized upon Allen’s version of the conversation between LaRue and Denius, disregarding the fact that neither Allen nor any other mine employee was present at the private conversation. Denius was not consulted. Despite the meetings Hale recounted in his testimony, no full and complete investigation by Respondent appears to have been conducted; rather, there was reliance on hearsay. I am aware of Hale’s testimony that LaRue admitted to Allen’s version, Tr. 96, but also note there was available to management a variety of disciplinary actions designed to correct behavior while avoiding the most drastic consequence of termination of employment.

Thus, the speed with which General Manager Jetson decided to fire LaRue without a full investigation into all of the circumstances, and without first utilizing a disciplinary action that would provide opportunity for improvement suggests she was treated differently from employees who could routinely receive the benefit of a graduated disciplinary policy.

Having considered all of the factors above, I find that the Secretary has established a nexus between LaRue=s protected activities during the period from September 2011 through May 30, 2012 and the Respondent=s adverse action on May 31, 2012.

Conclusion

In concluding that LaRue’s=s complaint herein was not frivolously brought, I refer to the evidence of record that she had a history of and engaged in a number of protected activities including the private conversation with a representative of miners who had been fired by Nyrstar and had a current discrimination complaint against Nyrstar. I also conclude that Respondent showed animus toward LaRue=s protected activities and that there was a close enough connection in time between her first protected activity, a close connection in time between her second incident of protected activity, and an immediate connection in time between the final incident of protected activity and her May 31, 2012 discharge.

Respondent asserts that its discharge of LaRue was based on violation of company policy on harassment, and that the performance of her job related duties may not be considered protected activity. Although Respondent may, in any subsequent proceedings, prevail on the merits, I find that Respondent=s evidence on this record is not sufficient to demonstrate that LaRue’s complaint of discrimination was frivolously brought. To the contrary, since the allegations of discrimination have not been shown to be lacking in merit, I find they are not frivolous.

ORDER

Based on the above findings, the Secretary=s Application for Temporary Reinstatement is granted. Accordingly, Nyrstar Gordonsville, LLC, is ORDERED to provide immediate reinstatement to Vicki LaRue, at the same rate of pay for the same number of hours worked, and with the same benefits, as at the time of her discharge.

I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary shall provide a report on the status of the underlying discrimination complaint as soon as possible. Counsel for the Secretary shall also immediately notify my office of any settlement or of any determination that Nyrstar did not violate Section 105(c) of the Act.

/s/ Kenneth R. Andrews

Kenneth R. Andrews

Administrative Law Judge

Distribution: (Certified Mail)

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

Samuel Charles Lord, Esq., U.S Department of Labor, Office of the Solicitor, Mine Safety and Health Division, 1100 Wilson Boulevard, Suite 2200, Arlington, VA 22209-2296

Ms. Vicki LaRue, 118 Falcon Pointe, Baxter, TN 38544

^{^[1]} Under the Act, protected activity includes filing or making a complaint of an alleged danger, or safety or health violation, instituting any proceeding under the Act, testifying in any such proceeding, or exercising any statutory right afforded by the Act. See Sec=y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981).

^{^[2]}The Secretary’s exhibits are marked as “GX,” and Respondent’s exhibits are marked as “RX.”

^{^[3]} The parties were informed of the Pendley decision at the hearing, and at the conclusion of the hearing did discuss potential impact on pending 105(c)(3) claims. The court, on the record, made it clear that its jurisdiction is limited to the instant Temporary Reinstatement proceeding.

^{^[4]} This does not mean that there is no point beyond which the Secretary may not reopen an investigation. However, the question of when the Secretary is precluded from reopening an investigation is not before the court at this time.

^{^[5]} As the Respondent notes, LaRue filed her 105(c)(3) action on 7/12/2012, and it has not yet come before an ALJ. Therefore, there should be no surprise or loss of evidence relating to the Secretary’s investigation.

^{^[6]} ASubstantial evidence@ means Asuch relevant evidence as a reliable mind might accept as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

^{^[7]} This mistake was in the original document, and should be either 103(g) or 105(c).

^{^[8]} This mistake was in the original document, and should be either 103(g) or 105(c).

^{^[9]} It should be made clear that according to the Respondent, the report that Bishop conveyed to LaRue did not constitute improper conduct. In later testimony, Hale admitted to the Court that taking a former colleague off site and having a conversation concerning the work environment would not constitute harassment. Tr. 107-108. Presumably use of a personal vehicle does not transform the situation into harassment.