FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004

December 27, 2012

Before:  Judge Barbour

DECISION ON REMAND

            This discrimination proceeding has a long and tortured history. It is before me on remand from the Commission (Sec’y of Labor on behalf of Pendley v. Highland Mining Co., 34 FMSHRC ___, KENT 2007-383-D (August 30, 2012) (hereinafter Pendley, slip op.), which in turn received the case from the United States Court of Appeals for the Sixth Circuit. Pendley v. FMSHRC, 601 F. 3d 417 (6th Cir. 2010). The Sixth Circuit reversed the prior decision of the Commission (Sec’y on behalf of Pendley v. Highland Mining Co., LLC, 31 FMSHRC 61 (Jan. 2009)), a decision affirming my underlying decision on the merits. Sec’y on behalf of Pendley v. Highland Mining Co, LLC, 30 FMSHRC 459 (May 2008) (ALJ). Pursuant to its reading of the Sixth Circuit’s opinion, the Commission returned the case to me to determine whether Highland Mining Co. (“Highland”) discriminated against Lawrence Pendley (“Pendley”) in violation of the Mine Act when it: (1) fired him in March 2007, and (2) changed his work assignments and conditions when he returned to work upon an order of reinstatement. Pendley, slip op. at 15.

PENDLEY’S MARCH 21, 2007 TERMINATION

FACTUAL BACKGROUND

            In my initial decision I noted an incident that occurred on March 19, 2007 during which Pendley confronted an office employee regarding his overtime pay. Pendley was credibly described as loud and “very upset.” 30 FMSHRC at 476. His emotional outburst made the employee feel “very nervous.” Id. Pendley was so loud, in fact, that another employee thought the employee whom Pendley confronted, “might need some help.” Id. I further noted that two days later, on March 21, Pendley returned to the office and engaged in another “heated” conversation about his overtime pay. This time Pendley was so “agitated” and out of control that when he left the office, management employees locked the doors to prevent his re-entry. 30 FMSHRC at 495. Pendley was, I found, an “employee utterly lacking in self-control to the point of disrupting [other employees’] work and making them very nervous for their own well being.” 30 FMSHRC at 494.

            I also noted that on March 21, Pendley was involved in a physical altercation with another miner, Pendley’s long-time nemesis, Jack Creighton. 30 FMSHRC at 479-483. The altercation took place at the slope shack. There was conflicting testimony as to who first pushed whom. Pendley maintained Creighton pushed him away from the man load control panel in the slope shack. 30 FMSRHC at 479. Creighton maintained that Pendley charged, shoved him and in doing so interfered with an ongoing test of the hoist. 30 FMSHRC at 480. Pendley stated that there was no indication that a test was being conducted when he advanced to the slope shack. 30 FMSHRC at 479; See also 30 FMRHRC at 479, n. 32.

            The decision to fire Pendley was made by mine superintendent Larry Millburg, who was informed of the incidents of March 19 and 21 prior to acting. 30 FMSHRC at 481. Pendley had already been warned that “verbal abuse” could lead to his discharge (30 FMSHRC at 495; Resp. Exh. 10), and shortly after the March 21 incidents, Millburg decided to suspend Pendley with intent to discharge.

            In a March 21, 2007 letter to Pendley, Millburg informed Pendley that he was being suspended with intent to discharge due to:

Harassment of Office Staff[;]

Interference with Safety check

of Hoist Potentially Endangering

Safety of those conducting the

Test[;]

Assaulting Another Employee[.]

Gov’t Exh. 4.

            In upholding Highland’s discharge of Pendley, I concluded that the office incidents of March 19 and March 21 played “critical roles in Millburg’s decision.” 30 FMSHRC at 494. I found that Pendley was “disruptive, irrational and orally aggressive” and further that an employer need not “brook a situation where a group of employees rationally believe they [have] to lock their doors against a fellow employee.” 30 FMSRHC at 494-495. In sum, I found that Highland’s contention that it suspended and ultimately discharged Pendley in part because of his “Harassment of Office Staff” was credible and fully supported by the record. Id.

            With regard to Highland’s third reason for ending Pendley’s employment, I concluded that although it was impossible to establish with any certainty whether Pendley first pushed Creighton or vice versa (30 FMSHRC at 495), there was no doubt that an altercation happened. I found it reasonable to conclude that Pendley, who charged the slope shack, purposefully placed himself in a situation where a physical conflict between him and Creighton was likely to occur and that the altercation would not have occurred but for Pendley deliberately rushing into the slope shack. Id.

            Very shortly after the slope shack incident, Superintendent Millburg spoke with some of Highland’s employees (Creighton, miner Lap Lewis and foreman Rodney Baker) about what happened. They told Millburg that they believed that Pendley first shoved or pushed Creighton. 30 FMSHRC at 481. Regardless of who actually “started it,” there was no doubt in Millburg’s mind that Pendley was involved in a work-site altercation, and I concluded that Pendley’s involvement in the altercation was a valid reason for his dismissal. 30 FMSRHC at 495.

            I also found that Highland’s second reason for suspending and discharging Pendley – Pendley’s alleged interference with the safety check of the hoist – was “not crucial to the validity of the disciplinary action” and that Mr. Pendley’s oral and physical altercations of March 19 and March 21 were in and of themselves sufficient to warrant his dismissal. 30 FMSHRC at 495, n. 43.

            When the decision was appealed to the Commission, a majority of the Commission upheld this approach. The majority stated, “[T]he Mine Act does not require . . . [a judge to] adopt every reason given by the operator in order to sustain the discipline” meted out by an employer. 31 FMSHRC at 79. The Sixth Circuit, however, found that the Commission erred. It concluded that under Commission precedent a judge may not disbelieve part of the operator’s justification, but hold that the remaining part or parts justify the discipline. 601 F.3d at 426. Therefore, in the Court’s view, the law requires an analysis of what Highland actually believed at the time with regard to the hoist test. Id. The Commission therefore remanded the matter to me to determine the role that the hoist test played in motivating Millburg to punish Pendley. Pendley, slip op. at 8-9.

FINDINGS AND CONCLUSIONS

THE SLOPE SHACK INCIDENT

            I conclude that Superintendent Millburg honestly and reasonably believed that Pendley interfered with the hoist test, an action that clearly endangered other miners, and that the superintendent based his decision to suspend and fire Pendley on his honest and reasonable belief. Millburg disciplined Pendley for interfering with the hoist test regardless of whether Pendley’s interference with the test was intentional or was done inadvertently. As I stated previously, “[t]o Millburg, the important thing was Pendley shoved Creighton and interfered with the test.” 30 FMSHRC at 481.

            Millburg was a credible witness and while he had reason to view Creighton’s account of Pendley’s actions as self-serving, the fact that Pendley interfered with the test was independently related to Millburg by both miner Lap Lewis and by foreman Rodney Baker. Tr. 1029-30. The reasonableness of Millburg’s belief was buttressed by the fact that before he drafted the letter advising Pendley he would be suspended with intent to discharge, Millburg heard from Sheila Gains about Pendley’s disruptive and aggressive behavior on March 19 and about his similar behavior on March 21, prior to the hoist incident. It was reasonable for Millburg to believe that someone who had already orally disrupted the workplace would engage in disruptive behavior in another form. For these reasons I conclude that the reasons offered by Millburg for suspending Pendley were not pretextual, but rather represented legitimate reasons for the discipline Highland imposed. Therefore, I hold that Highland successfully rebutted the Secretary’s and Pendley’s prima facie case by establishing that Pendley’s termination was in no part motivated by protected activity.

PENDLEY’S POST-REINSTATEMENT WORK ASSIGNMENTS

FACTUAL BACKGROUND

            The Secretary alleged that after Pendley returned to work as a result of his temporary reinstatement, he was the victim of discrimination, interference, and disparate treatment by the company. According to the Secretary, Pendley was given additional duties, was “bird-dogged” by management officials and had his work assignments posted on the mine bulletin board, a practice that was allegedly carried out by the company with regard to only those miners who complained about safety. See 30 FMSHRC at 496. In rejecting the Secretary’s allegations, I found that the tasks Pendley was assigned “fit squarely within the labor agreement” and his job classification and that “the record [did] not support finding Pendley was assigned more tasks than he reasonably could accomplish in an eight-hour work day.” Id. at 497. I also found that the posting of Pendley’s job duties by Highland was a mistake, one that was rectified by Pendley’s supervisor as soon as Pendley complained about it, and that Highland’s close supervision (i.e., its alleged “bird-dogging”) of Pendley reflected legitimate concerns about the slow pace of Pendley’s work after his return. Id.

            On appeal, the Commission sustained my finding that Highland’s close supervision of Pendley was not improper. 31 FMSHRC at 81. A majority of the Commission also upheld my finding that there was no evidence the duties assigned Pendley were given to him as punishment for engaging in protected activity or for seeking temporary reinstatement. Id. The Commission further agreed that the company’s mistake in posting Mr. Pendley’s job duties on the mine bulletin board did not constitute an “adverse action.” Id. However, the Sixth Circuit found that the Commission majority did not correctly applied its own precedent when it affirmed the finding that Pendley’s post-reinstatement job duties were not outside his job classification and could be completed within an eight hour shift. 601 F.3d at 426-427. The court stated that on remand the Commission should re-examine its holding regarding Mr. Pendley’s post-reinstatement duties in light of the Commission’s ruling in Secretary on behalf of Glover v. Consolidated [sic.] Coal Co., 19 FMSHRC 1529, 1531-37 (September 1997). The Sixth Circuit also reminded the Commission of its prior holding in Secretary on behalf of Garcia v. Colorado Lava, Inc., 24 FMSHRC 350, 354 (April 2002).

            The Sixth Circuit returned the case to the Commission and the Commission remanded it to me. The Commission stated that Glover stands for the proposition that “the assignment of new job duties within a job classification can nevertheless still constitute adverse action under the anti- discrimination provisions of the Mine Act.” Pendley, slip op. at 12. The Commission noted that the Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006), a Title VII retaliation case, that discrimination includes employer actions taken against an employee that are “materially adverse to a reasonable employee.” Id. The Supreme Court further stated that “the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. Even though not required to do so by the Sixth Circuit (601 F.3d at 417), the Commission majority adopted the Supreme Court’s Burlington Northern approach, declaring it to be “eminently workable in section 105(c) cases.” Pendley, slip op. at 14. The Commission instructed me to apply Burlington Northern and find whether or not post-reinstatement work assigned to Pendley was materially adverse to him. Id. (“The judge shall look anew at the evidence and arguments . . . and apply the Burlington Northern standard to reach a conclusion regarding whether those conditions were materially adverse to Pendley.”Id.)

            Pursuant to the Commission’s directive, the question before me is whether Pendley’s work assignments following his reinstatement were “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Pendley, slip op. 14 (quoting Burlington Northern 548 U.S. at 57). The Commission instructed that when considering the issue, I look at the facts particular to the No. 9 Mine at the time Pendley came back to work. (“Determinations as to whether an adverse action was taken must be made on a case-by-case basis.” Pendley, slip op. at 12 (quoting Sec’y on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1848 n.2.).) The Commission also directed that the circumstances surrounding the alleged adverse action(s) be closely examined. 34 FMSHRC _, at 12.

             Pendley complained that following his reinstatement, he was given more work than he could complete during the course of his work day. MSHA special investigator Kirby Smith testified Pendley told him that following his reinstatement the company gave him:

an increased workload . . . to the point where other miners

. . . went to their union officials and asked for relief for

. . . Pendley . . . stating that . . . [mine management was ]

. . . requiring . . . [Pendley] to do two jobs.

Tr. 40.

            Pendley stated that when he came back he was given a written work assignment that contained duties different from those he was previously assigned, one of which was to wash equipment, a task he claimed he had “never been assigned before.” Tr. 184. He also maintained that he had to make the delivery of the oil his number one priority to keep the units from running out of oil. Tr. 185. The oil deliveries “absolutely” affected his ability to complete delivery of supplies and parts. Tr. 186. He simply could not do everything he was assigned. Tr. 186.

The difference [is that] I was assigned to wash

equipment that I had never been assigned before

. . . and to take oil to each unit which normally

I took it if they needed it.

Tr. 184.

            Pendley could not recall for sure, but he believed it possible that Steve Bockhorn, Pendley’s shift foreman, told him to let the equipment washing go if he could not get to it and that Bockhorn then would assign another miner to wash the equipment. Tr. 259. Bockhorn testified that Pendley never told him that he, Pendley, was overloaded with work assignments. Tr. 874-875. Bockhorn also stated that if equipment did not get washed daily, he did not take any action against mine personnel. Tr. 875. However, he emphasized that washing equipment was important. If equipment was not kept clean, Highland could be cited for a violation of the mandatory standards, something that happened in the past. Id.

            Pendley believed that he was the only mechanic who was assigned to wash equipment and to deliver oil and parts and supplies. (“Mechanics can be asked to do many of these things, but . . . I’m the only mechanic that has been assigned anything special like this that I know of.” Tr. 257.) He noted that one of the other mechanics who washed equipment told him that when he (the other mechanic) washed equipment, another miner delivered parts and oil. Tr. 1082. For this reason Pendley believed that he was “a focus” after he went back to work. Tr. 1082.

            James Baxter, Pendley’s maintenance foreman, explained that in general each miner was responsible for washing the equipment he operated. In addition, there were “several” miners who were “assigned daily tasks of washing equipment.” Tr. 438. However, Baxter agreed that prior to his reinstatement, Pendley was not responsible for washing all of the equipment he was assigned to wash after he came back to work. Tr. 439. According to Baxter, after he came back Pendley was given additional pieces of equipment to wash, and it was a “time-consuming process.” Tr. 440.

            Pendley testified that he complained to Ron Shaffner, the union local president, about his work assignments and although nothing came of the complaint, Shaffner told him that “there ought to be at least two people doing what you’re doing.” Tr. 1082. None the less, Pendley agreed that the assigned duties came within his job classification and that management could tell a miner what to do, as long as the duties were within the miner’s job classification and “as long as they [did] it in an appropriate way and everybody [was] treated the same.” Tr. 1083.

            Pendley’s work habits also were the subject of much testimony. David Howell, a shift foreman at the mine, testified without dispute that prior to his reinstatement Pendley chose to work overtime on a regular basis. Tr. 911. After he returned, Pendley chose to only work a regular shift. Id. Pendley agreed with Howell. Tr. 290-291. He implied that he was afraid if he worked overtime, he would get even more duties. Tr. 291. Bockhorn thought that Pendley did his work well before he was discharged but when he came back he did not get done “as much as before.” Tr. 887.

            Another supervisor, assistant superintendent Scott Maynard, described Pendley’s pre-reinstatement job performance as “excellent.” Tr. 931. Maynard stated, “He was always hustling, getting parts in as quick as he could, helping anybody that needed any help.”Id. Maynard added that prior to Pendley’s reinstatement he “never had any complaint about his work.” Id. However, almost immediately after Pendley was reinstated Maynard testified that he began receiving complaints from all of the mine managers about Pendley’s work:

[T]hat he was driving slow, wasn’t get[ting]

parts delivered in a timely manner. . . was

disappearing for periods of time [and

was] argumentative.

Tr. 931.

            Maynard believed that neither he nor any other supervisor “made it tough” on Pendley. Tr. 932. Maynard stated that he talked to the mine managers and told them that they should “just have [Pendley] do what he was supposed to do.” Tr. 931. In Maynard’s opinion, “[E]veryone is supposed to be treated the same and that’s what we try to do.” Id.

            Howell described Pendley after his reinstatement as, “a completely different employee as far as work habits.” Tr. 899. Howell testified from his contemporaneous notes. He stated that on June 14 parts were brought into the mine that Pendley was supposed to deliver. Pendley did not deliver them. Tr. 901. Rather, a miner on the incoming shift had to deliver the parts. According to Howell, Pendley’s failure to deliver the parts caused the miner who had to do Pendley’s job to throw “a bit of a fit.” Tr. 904.

            Howell further observed that prior to his reinstatement, Pendley “delivered parts very well,” in a rapid, organized manner. Tr. 905. However, after he returned he drove “extremely slow like he ha[d] no urgency whatsoever to get anything delivered.” Tr. 906. There was, he maintained, a “big difference” in Mr. Pendley’s work habits. Id.

            Pendley’s deteriorating work habits resulted in a discussion between Howell and Pendley. Howell told Pendley that if he did not have time to get his work done, Pendley should speak up so that Howell would have “an idea of what . . . the problem [was.]” Tr. 902-903. Howell stated that he told Pendley, “I can get someone else to do . . . [it] or whatever . . . but we’ve still got to get the work done.” Tr. 903. Despite this discussion, Pendley never spoke with Howell about work assignments. Id. Howell stated, “I never did . . . get a call . . . from him.” Tr. 907.

FINDINGS AND CONCLUSIONS

            Having looked anew at the evidence, I find that Pendley and the Secretary have not established that Pendley was subject to an adverse action when he returned to work. I reach this conclusion because I find that the conditions under which Pendley worked were not such as would “dissuade a reasonable worker [at the No. 9 Mine] from making or supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 57. It is clear that after Pendley returned to work, the particular jobs he was assigned – washing equipment, delivering oil, and delivering parts and supplies – were neither more dangerous nor more difficult to carry out than work he was assigned prior to his discharge. In fact, the record fully supports finding that they were jobs he was called on to do prior to his reinstatement. It is not the nature of the jobs that is at issue. Rather, the essence of Pendley’s and the Secretary’s complaint goes to the amount of work he was assigned. Essentially, they maintain that he was given more work than he could complete in an eight-hour shift.

            The record fully establishes that after he returned to the mine, Pendley was assigned to wash equipment, to deliver oil to mining units and to deliver parts and supplies. Pendley asserted that he was the only miner assigned to these three duties at the same time – washing equipment, delivering oil, and delivering parts and supplies. Pendley also contended that when he was assigned to wash equipment he could not complete his other assignments. Tr. 184. In this regard, there is credible testimony that prior to being reinstated Pendley was required from time to time to clean his own equipment (Tr. 185), but the record also confirms that the assignment to wash other equipment was new. Tr. 440. There is conflicting testimony as to how extensive the new assignment was. Maintenance Supervisor Baxter thought that Pendley might have been assigned to wash several pieces of equipment. Id. However, Bockhorn’s testimony that he explained to Pendley that two of the service cars were not his responsibility, that he was responsible for washing at most his own equipment and one other piece of equipment, was more specific and persuasive. Tr. 874.

            There is much evidence that cuts against the reasonableness of a miner concluding that Pendley was assigned the new washing duties as punishment for seeking and obtaining temporary reinstatement. First, as already noted, I credit Bockhorn’s testimony that Pendley’s washing assignment was neither as extensive nor as burdensome as Pendley contends. This conclusion is buttressed by Bockhorn’s unrefuted testimony that Pendley never complained to Bockhorn that he (Pendley) was overloaded with work, something that one would expect if in fact Pendley really found the washing duties to be too arduous. Tr. 874-875. Moreover and as Highland points out, while Pendley in fact was assigned to wash an additional piece of equipment after his reinstatement, the equipment was new, and Highland equally divided all extra washing duties between Pendley and two others. See Highland’s Position Statement 10.

            Second, although Smith stated that he was told “miners . . . went to their union officials and asked for relief for . . . Pendley . . . stating that they’re requiring this man to do two jobs” (Tr. 40) and although Pendley claimed that union president Shaffner told him in effect that he was doing the work of two miners, I find it noteworthy that Shaffner was not called as a witness. Moreover, miner Bernard Alvey, who at times worked on the same shift as Pendley, testified that he complained to Shaffner that Pendley was “being harassed by all of these extra assignments,” and that Shaffner told him that he (Shaffner) would speak with Millburg. Tr. 523. However, nothing came of the complaint, and Alvey did not know if Shaffner ever followed up with Millburg. Id. Nor is there any indication that Alvey ever attempted to find out if Shaffner spoke with Millburg, something that reflects adversely on the reasonableness of Alvey’s concern. Tr. 523. Further, when Alvey was asked why he thought that Pendley was “given more than [he] could physically do,” Alvey answered that he was “not sure.” Tr. 521. Alvey added that he could only recall one instance in which Pendley was given work that Alvey thought was unreasonable and that involved an assignment to “pick up a pallet of glue that was along the side track”(Tr. 521), an incident that is not before me. See Pendley, slip. op. at 25 (citing 601 F. 3d at 428; 31 FMSHRC at 81-82 n. 24.)

            In addition, although foreman James Baxter testified that “a lot” of hourly workers thought that mine management had “added some duties” to Pendley’s work assignment (Tr. 433), I do not find that this was something that “could dissuade a reasonable [miner] from making . . . a charge of discrimination.” Burlington Northern, 548 U.S. at 57. Rather, the record confirms that although Pendley had duties added to his daily tasks, they were not as extensive as he claimed, nor were the individual jobs more arduous. In addition, from all that appears on the record, Pendley’s job assignments did not become the subject of a union complaint.

            Third, I credit the testimony of Bockhorn that after returning to work, Pendley’s “work ethic” showed a marked decline. Scott Maynard’s testimony that miner managers complained about the slow nature of Mr. Pendley’s job performance, his occasional disappearances and his argumentative nature was not refuted. Tr. 931. The slow pace of Pendley’s job performance was also noted and contemporaneously documented by on-site foreman David Howell. Tr. 902-903, 906. I fully credit Howell’s testimony that in at least one instance Pendley’s poor job performance resulted in another miner having “a fit” after he was adversely affected by Pendley’s failure to get needed parts delivered. Tr. 904. I also note that although Howell invited Pendley to discuss his job performance problems, Pendley did not respond. Tr. 903, 907. Nor did Pendley complain to his shift foreman, Steve Bockhorn, that he was overloaded with work. Tr. 804-805.

            It must also be mentioned that Pendley’s duties following his reinstatement did not affect his job title, his hours of work, his salary, his benefits or cause him a diminution in prestige. See Aryain v. Wal-Mart, 534 F.3d 473 (5^th Cir. 2008). Nor was there a drastic reduction in Pendley’s responsibilities. See Kessler v. Westchester County, 461 F.3d 199 (2d Cir. 2006). Rather, taken as a whole the record shows that there was a moderate increase in the amount of work Pendley was expected to do and that because of his diminished work ethic he could not always complete it. I therefore conclude that a reasonable miner (who would have known all of the facts relating to Pendley’s post-reinstatement work assignments) would not have been dissuaded from making or supporting a charge of discrimination because of the post-reinstatement work assignments. Burlington Northern, 548 U.S. at 57. In sum, I find that Pendley and the Secretary did not bear their burden of establishing that Pendley’s work assignments were materially adverse to a reasonable miner, and I conclude that Pendley was not discriminated against after he was temporarily reinstated.

            This matter is DISMISSED.

 /s/ David F. Barbour

 David F. Barbour

 Administrative Law Judge

  Distribution: (Certified Mail)

 W. Christian Schumann, Esq.; Dana L. Ferguson, Esq, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247

 Melanie Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

 Melanie Garris, U.S. Department of Labor, Office of Civil Penalty Compliance, MSHA, 1100 Wilson Blvd., 25th Floor, Arlington, VA 22209-3939

 Wes Addington, Appalachian Citizens Law Center, Inc., 317 Main Street, Whitesburg, KY 41858

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