FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREEN TREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: (412)920-7240

FACSIMILE: (412)928-8689

October 17, 2011

DECISION

Appearances:              Steven E. Krawitz, Esq., Krawitz & Krawitz, P.C., 553 Main Street, Stroudsburg, PA, for Complainant

John P. Karoly III, Esq., The Karoly Law Firm, LLC, 1555 North Eighteenth Street, Allentown, PA, for Respondent

Before: Judge Andrews

            This case is before me on a complaint of discrimination filed by Albert F. Garofalo (“Garofalo”) against Penn Big Bed Slate Co, Inc., (“Respondent” or “Penn”) pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977 (the “Act”), 30 U.S.C. §815(c). A hearing was held in Harrisburg, Pennsylvania on May 12, 2011.

I. Background

            Garofalo filed a discrimination complaint on March 18, 2010, alleging that he was fired by Respondent and owner Pete Papay (“Papay”) after complaining about numerous dangerous conditions. By letter dated April 23, 2010, Garofalo was informed that, following an investigation and review of the information gathered, the Mine Safety and Health Administration (“MSHA”) had determined that there was no violation of Section 105(c) and that discrimination within the confines of the Act did not occur. That decision was appealed by letter dated April 27, 2010. Garofalo also filed a handwritten letter dated May 25, 2010.

            A hearing was originally scheduled for January 11, 2011; however, since Papay had not perfected an answer to the complaint, an order to show cause was issued on January 3, 2011. Papay submitted an answer to the complaint dated January 5, 2011. The hearing was rescheduled for April 21, 2011, but continued to May 12, 2011, on request of counsel for Respondent.

II. Contentions

            Complainant Garofalo contends that he was employed by Respondent from 2005 until November 16, 2009, and his rate of pay at discharge was $11.80 per hour with a forty-five (45) hour work week. Further, he asserts that he was fired on November 16, 2009, after complaining on November 13, 2009, about another employee burning rubbish and plastics indoors in a stove creating hazardous, acrid and smoky conditions in the building; and, upon notifying Papay he intended to report the conditions to both OSHA and MSHA. Garofalo contends that he had also complained five (5) times since March 3, 2010, and on May 25, 2010, he called an MSHA inspector about dust violations created by machinery in the building. Finally, he argues that he was turned down for unemployment compensation because his employer stated that he was terminated for fighting.

            Respondent contends that Garofalo had been laid off before on June 24, 2008, and it attempted to help him by calling him back on September 8, 2009, when work increased. It argues that Garofalo started a fist fight on Friday, November 13, 2009, and was sent home. When Garofalo returned to discuss the incident with Respondent on Monday, November 16, 2009, it asserts that he was insubordinate, loud, and arrogant and, therefore, was terminated for willful misconduct and the safety of the other workers. Respondent further avers that no complaint was made to MSHA for many months; and, it had no reason to believe that Garofalo had called MSHA until January 2011, when his May 25, 2010 letter was received. Finally, it argues that Garofalo’s claim that he was fired for threatening to call OSHA and MSHA was fabricated.

III. Stipulations

            A.        Complainant was an employee of Penn Big Bed Slate Co., Inc., prior to his termination on November 16, 2009.

            B.        Complainant was receiving a rate of compensation of $11.80 at the time of his termination.

            C.        Complainant did appeal the February 18, 2010 decision by the Unemployment Compensation referee denying Garofalo unemployment benefits.

            D.        The United States Department of Labor, Mine Safety and Health Administration, Special Investigator, Rodney Rice, conducted interviews of Mr. Garofalo and Mr. Papay as part of an investigation concerning Mr. Garofalo’s allegations in and around March of 2010, which resulted in no adverse finding against Penn Big Bed Slate Co., Inc.

IV. Legal Principles

            Section 105(c) of the Act prohibits discrimination against miners for exercising any protected right under the Act. Section 105(c)(1) provides:

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator’s agent, or the representative of miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is subject of medical evaluations and potential transfer under a standard published pursuant to section 101 or because such miner, representative of miners or applicant for employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act.

            A complainant alleging discrimination under the Act establishes a prima facie case of prohibited discrimination by presenting evidence to support a conclusion that the individual engaged in protected activity and that the adverse action complained of was motivated in any part by that activity. Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom.; Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3^rd Cir. 1981); Secretary of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-818 (Apr. 1981). 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. Robinette 3 FMSHRC at 818, n. 20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by the miner’s unprotected activity and would have taken the adverse action for the unprotected activity alone. Id. at 817; Pasula, 2 FMSHRC at 2799-2800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4^th Cir. 1987).

V. Analytical Framework

            Section 105(c) of the Act prohibits discriminating against a miner because of his participation in safety related activities. Congress provided this statutory protection to encourage miners “to play an active part in the enforcement of the Act” recognizing that, “if miners are to be encouraged to be active in matters of safety and health, they must be protected against any possible discrimination which they might suffer as a result of their participation.” S. Rep. No. 95-181, at 35 (1977), reprinted in Senate Subcomm. on Labor, Committee on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977 at 623 (1978). It is the intent of Congress that, “[w]henever protected activity is in any manner a contributing factor to the retaliatory conduct, a finding of discrimination should be made.” Id. at 624.

            Garofalo, as the complainant in this case, has the burden of proving a prima facie case of discrimination. In order to establish a prima facie case, Garofalo must establish that he engaged in protected activity, and that termination of his employment was motivated, in some part, by that protected activity. See Pasula, 2 FMSHRC at 2797-2800 (Oct. 1980), rev’d on other grounds sub nom.; Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3^rd Cir. 1981); Robinette, 3 FMSHRC at 817-818 (Apr. 1981).

            Factors to be considered in assessing whether a prima facie case exists include the operator’s knowledge of the protected activity, hostility or “animus” towards the protected activity, timing of the adverse action in relation to the protected activity and disparate treatment. Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508, 2510 (Nov. 1981).

            Respondent may rebut a prima facie case by demonstrating, either that no protected activity occurred, or, that the termination of Garofalo was not motivated in any part by his protected activity. Robinette, 3 FMSHRC at 818 n. 20. Respondent may also affirmatively defend against a prima facie case by establishing that it was also motivated by unprotected activity, and that it would have taken the adverse action for the unprotected activity alone. See also Jim Walter Resources, 920 F.2d at 750 (citing with approval Eastern Associated Coal Corp v. FMSHRC, 813 F.2d 639, 642 (4^th Cir. 1987)); Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-959 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-196 (6^th Cir. 1983)(specifically approving the Commission’s Pasula-Robinette test).

VI. The Evidence

            1. Documentary Evidence

                        A. Exhibit D-4

            A photocopy of a page of Owner Papay’s daily log book contains two entries with the heading of “Albert Garofalo”

11/16  Fired for fighting

11/13  Albert started a fist fight with James German. I sent him home at 8:45 and Jim at 12:00.

            Albert picked a fight with Frank on Mon 11/9/09 over a hammer.

He thretended (sic) Chuck and had arguments with Skip, Tom, Antz and Jim several times.

            Erik warned them the week before, when Albert picked a fight with Frank.

I would have fired Albert right away but I felt that he would have hurt someone under the circumstance.

            I talk to him on Monday morning and he says everyone is wrong.

                        B. Exhibit C-1  

            On the day of his termination, November 16, 2009, Garofalo initiated an Unemployment Compensation claim by calling the Pennsylvania Department of Labor and Industry and, later, filling out his Claimant Questionnaire and Employment Separation Questionnaire. Both the claimant and employer questionnaires were executed on November 19, 2009. The statement of Garofalo is set forth in its entirety:

This Company had a lot of violations and inapropriate (sic) behavior since I started on 9/8/09. To begin with, the building I work in is hanging on the edge of the cliff of the Quarry. It could fall in the hole anytime. I have been harrassed (sic), my tools have been food spit on them. I reported this to the employer, but nothing was done about it. The forklifts have no brakes and gas pedal isn’t working. I told my employer and he did nothing. I work in front of a very dusty machine and in front of a big door 12' X 12'. My employer will not do something to eliminate the dust problems. The employees who run this machine do not wear dust masks and they harrass (sic) me to open the door to let the dust out, instead of complaining to my employer to correct the problem. My employer told me to keep the door open even if it is 25 degrees below zero or if the sun is shining in my eyes. And he didn’t care if I got sick. The platforms are broke and falling apart and can cause serious injuries. They are used to transport slate from one building to the building that I work in. One employee - his name is James German has been burning plastic in his stove inside the building where I work with the doors closed and his lid of the stove open. I told my employer about it and he said that he does it all the time. I said to my employer that it is toxic and can kill you and he said if you don’t like it, go home. He did it before I started working here and was reported to the labor board by other employees. He was involved in a fight with another employee with broken ribs and was reported to the labor board. On 11/13/09 James German was again burning plastic with the doors closed and the building was being filled with smoke and one of the employees running the dusty machine, his eyes was watering and burning from the smoke was telling me to open my door. Instead of telling James German to stop burning plastic or have other employees to tell him to stop or complain to my employer about it, they made me open my door. I argued with them and James German stepped in started a fight with me. My employer told me to go home and come back on 11/16/09. I came back to work and after I punched in my timecard, he said any more trouble from you, you are fired. I told him I am not the problem here and I didn’t burn plastic. I told him if he does it again I will report both of you to the labor board and he fired me. Currently this Company is under investigation by OSHA and has been given a time period to fix all the faulty wiring throughout the Company. If my employer would have corrected these violations, if he would have stopped the harrassments (sic), if he told James German to stop burning plastic, if he would stop breaking the law, this scuffle would not have happened.

            In the Employer’s Questionnaire, Papay gave as the reason for separation, “He started a fist fight.”

            And, in describing the incident that caused the separation, Papay wrote:

He punched James German in the face and they went at it very bad. I had to get between them. It took me and two others to pry them apart. This was on the Friday 11/13/09 at 8:45. I sent them home. And fired Albert on Monday morning.

            As the adverse effect suffered by Respondent, Papay wrote, “James German and Albert bloodied each other (black eyes, bloody nose stopped 7 men stopped work.”

            Papay wrote another statement dated November 20, 2009. This statement, in pertinent part, is as follows:

Albert was layed (sic) off on June 24, 2008. He was called back on September 8^th, 2009, when work picked up.

Albert started a fist fight on Friday November 13, 2009. My imediate (sic) reaction was: I broke it up with the help of a few others and sent Albert home to avoid any more trouble.

When he came to work on Monday Nov 16^th he loud and arogant (sic). I fired him. I can not allow this in our work place and he was ready to start trouble all over.

            On November 23, 2009, for the employer’s reason for separation, Papay again wrote, “Albert punched James German in the face and continued to fight.”

            In the Notice of Determination, dated December 16, 2009, the Unemployment Compensation Representative found that the Claimant was discharged for fighting, and since there was insufficient information to show whether he had good cause for fighting, his actions constituted willful misconduct and benefits were denied. This determination was appealed to the Board of Review. In the Petition for Appeal, Garofalo wrote:

An employee was burning plastic in his stove with the lid open inside the building where I worked and started the fight. I asked to stop and he said no. It was dangerous and not safe to breath (sic).

                        C. Exhibit C-2

            The hearing before the Board of Review Referee was held on February 17, 2010. The testimony of both Garofalo and Papay will be summarized.

            Papay testified that Garofalo had been employed at another location of the company prior to 2008. He had talked to John Dally, Supervisor and General Manager at that location and was told that it would be a problem if Garofalo was brought back to work since there had been several warnings, two or three fights, and he had been arrested for one of those fights. Papay was also told that Garofalo did not get along with most of the other employees, who would probably refuse to work with him. However, Papay thought he could work this out and, in September 2009, called Garofalo back to work at his location because he was a good splitter. But, Garofalo had a few arguments, requiring the General Manager to go and break them up, and just could not get along with the rest of the guys. He stated that the employees, when starting the fires, would open the doors so smoke would leave the building. He testified that on the morning of November 13^th, the doors were open and he was with customers about forty feet away when he heard noise and could tell something was going wrong. By the time he got there, both Garofalo and German were hammering away at each other. He and another employee pushed them out the door and separated them, but Garofalo went back and they had to be separated a second time. He told Garofalo to go to the office. Papay described Garofalo at that time as very obnoxious, hollering, and telling Papay what he was going to do to German - “kick his ass”, “clobber him”, and “punch him”. Papay did not want the fight to start all over and sent Garofalo home. When Garofalo returned on Monday morning, Papay asked if he was going to do his job without a problem, and Garofalo responded that if anything was done to bother him, he would knock [German’s] block off. At that point, Papay said he could not tolerate this behavior and fired Garofalo.

            Garofalo testified that on the morning of November 13, 2009, German was burning plastic in the building with the doors closed, and the building filled up with smoke. He told German to stop, went over and put the lid on the stove. German grabbed him from behind and they scuffled. Papay sent him home. When he went back to work on November 16, 2009, Papay said that he did not want trouble from him. He told Papay that he was not the one who burned plastic in the stove, and if German burned it again, he would report both of them. Papay replied, “No, you’re not, you’re fired.” Garofalo further testified that he had been harassed every day by people telling him to open the doors and let the dust out.

            In further testimony, Papay stated that there were never any discussions about reporting the situation or circumstances, and that German had, to his knowledge, never been in a fight with someone else. Papay recalled that it was Garofalo who had almost gotten into a fight with another employee, Frank, when a part of a hoagie was left in Garofalo’s work area. When asked about German, Papay testified that he was a good, reliable employee who keeps to himself, does not talk much, and had never been a problem.

D. General Documentary Evidence

            Although the decision made by the Referee was not received by this office, it is apparent from the contentions set forth above that Garofalo’s unemployment compensation was once again denied.

            The Discrimination Complaint executed by Complainant Garofalo on March 18, 2010, alleged discriminatory action on November 16, 2009, committed by Penn Big Bed Slate Co., Inc., and Owner Peter Papay. The summary is as follows:

I was fired by my employer Penn Big Bed Slate Company, Inc., and Pete Papay, owner, after complaining about numerous, dangerous conditions which my employer has permitted to exist and continue, which included burning rubbish and plastics inside one of the buildings I work in as well as dust created by machinery in the building, bad brakes on the forklift, and other conditions. In particular, on my being fired on November 16, 2009, the particular problem involved James German, another employee, burning rubbish and plastics indoors, creating hazardous, acrid, smoky conditions in the building in which I was trying to work (Papay would not pay or contract for a dumpster). After I notified Mr. Papay, his response was essentially that he refused to correct the situation other than to tell me to “open the doors.” I told him that I intended to report the condition to OSHA and MSHA and Papay replied, “Oh no you’re not [going to report to OSHA and MSHA], you’re fired.”

            In an attached letter, dated March 17, 2010, Garofalo stated that he did not know that he had a sixty day period to report the conditions and retaliation until he spoke to a lawyer at the end of February. This letter continued:

I was turned down for unemployment because employer claimed I was “fighting,” and that was the reason for my discharge, but he did not fire me until I told him that I intended to report the unsafe conditions to OSHA and MSHA. Moreover, the guy I was “fighting” with, who attacked me, was not fired for fighting. I have appealed the decision of the Service Center denying my unemployment benefits on the same basis.

            On March 29, 2010, Garofalo gave a statement regarding discrimination in an interview with a Special Investigator for MSHA. The recording was transcribed and is summarized.

            Garofalo stated that he was a stone cutter and also ran a forklift and other machines. He admitted that he had received verbal, but not written, warnings from the company. He said he was sent home on November 13^th and fired on November 16^th. He told Papay about the burning of plastic in the stove, about the dust, and other hazards, but Papay would not fix them. He stated he did not start the fight, and the other person involved was not fired. He said that Papay fired him for reporting to OSHA and MSHA. He told of getting along with everybody else and believed he should have his job back, unemployment, and that he was wrongfully discriminated against. Ex. C-3.

            The following day, March 30, 2010, Papay gave a statement to the same Special Investigator. Papay stated that his position with the company is President, with the authority to hire and fire, direct and supervise the workforce, conduct inspections and many duties that go with mining operations at the slate quarry. He rehired Garofalo on September 9, 2009, because Garofalo had been out of work for quite some time and he felt sorry for him; however, Garofalo could not return to the former job location because he did not get along with anybody there. Papay stated that when Garofalo came back to work, he was told that he had to get along with the people he was working with. He testified that he had to give verbal notices to Garofalo, noting that he did not get along with anybody in his roofing department. He said that Garofalo did not talk politely to anybody, including Papay, and used a lot of foul language. Papay further recalled that Garofalo gave everybody nicknames like “asshole” and “jerk,” got into arguments, including an argument with a deaf coworker. He stated that about two weeks prior to the fight, Garofalo had “flipped out” and gotten into a screaming match with two coworkers because one of them had left a hoagie in Garofalo’s work area. He further testified that Garofalo had started the fist fight broken up by Papay and a couple of others and described Garofalo as “totally out of control, screaming, hollering, and threatening.” He stated that Garofalo was not fired at the time, but told to come back on Monday. Papay described Garofalo as loud and arrogant upon his return, telling Papay he was “gonna show that guy.” Garofalo was told he could not come back with that attitude, a man like a loose cannon could not be in the workplace. Papay said Garofalo gave more attitude and was loud, and it was Papay’s decision to terminate him. Papay went on to say that he never heard Garofalo mention OSHA or MSHA until the time of the unemployment hearing. He noted that, in the past, Garofalo had signed a policy letter and was aware of the company’s harassment policies. Ex. D-3.

            The Dally Slate Company memo styled as “Workplace Harassment Policy Reminder” was issued to all employees by John T. Dally, Jr., President, on April 24, 2002. The memo sets forth, in pertinent part, the following:

The management of the company considers incidents of harassment of employees by other employees to be a very serious matter. All employees are reminded that any type of verbal or physical harassment of a fellow employee or group of employees will not be tolerated and an employee found to be participating in such conduct will face discipline, including immediate discharge. All employees are also reminded that by participating in acts of harassment brings legal action against the company and/or the employee or employees involved.

By signing the bottom of this memorandum, you acknowledge that you have received and understood the contents of this notice[.]

            By letter dated April 23, 2010, Garofalo was notified of the determination of the Special Investigator that the facts disclosed did not constitute a violation of 105(c), and therefore discrimination within the confines of the Act did not occur. On April 27, 2010, through counsel, Garofalo appealed this decision.

            The evidence of record shows that prior to March 2009, and as early as May 2007, there were no citations issued to Respondent for dust or smoke. Sampling in August 2008, measured below permissible exposure limits. Further, during the period of employment from September 8, 2009, through November 16, 2009, there were no complaints or inspections documented. After the relevant period of employment, beginning on December 21, 2009, an inspection did result in citations being issued, but none involved dust or smoke. Ex. D-8, attachment No. 3; Ex. D-13; and facsimile submitted by Respondent on June 12, 2011. The five samples taken for respirable dust during the inspection that ended on January 7, 2010, were all found to be in compliance. Ex. C-4, Tr. 115-119, 162.

            On February 25, 2010, OSHA received notice of alleged hazards at Penn, identified as forklift brakes not working and damaged slate transport platforms. Ex. C-4; Tr. 59-61. On March 1, 2010, a verbal hazard complaint was called into the MSHA District Office. Seven dust samples were taken on March 4, 2010, and March 9, 2010, and three revealed overexposure resulting in citations being issued. During this inspection, it was determined that the forklift brakes were in good condition, gas monitor readings for toxic smoke were negative, and the building was designed and constructed to be on the edge of a cliff for slate disposal. It was noted that the operator was unaware that a dust problem existed, since there had been sampling before with no overexposure. Thereafter, water was added to control any dust, and sampling for dust after May 10, 2010, was negative. Ex. C-4, Tr. 35-58, 62-81, 84-94, 172-174, 194.

            On May 27, 2010, the Federal Mine Safety and Health Review Commission received a hand written letter from Garofalo dated May 25, 2010. He stated that on that day he had called a MSHA inspector and was told of five dust test failures since he had filed his MSHA complaint on March 3, 2010. He had also been told by the interviewer on March 29, 2010, that Penn had a long history of repeated violations. He further wrote that trash was burned inside and outside the building since Papay would not contract for a dumpster, which was an act of willful misconduct in disregarding the health and safety of employees. He reported that an employee had recently been forced to quit because of lung cancer from the dust violations. He believed he had been terminated on November 16, 2009, because he threatened to call MSHA about numerous violations, because of the harassment of the employees regarding the doors, and because coworkers were burning rubbish in the stove inside the building where he worked.

            Pursuant to the Order to Show Cause of January 3, 2011, Penn owner Papay promptly submitted an answer consisting of a statement and six “exhibits” considered attachments to the statement. In the statement, he wrote:

•          That Garofalo was terminated for fist fighting after he left his work area, went into another room, and started hollering and swinging;

•          That Garofalo’s quote of him saying, in effect, “oh no you are not going to report to OSHA and MSHA you are fired,” is totally fabricated;

•          That he did not know of Garofalo’s letter of May 25, 2010, until he received a copy in January 2011;

•          That the employee Garofalo said was forced to quit had liver cancer; and

•          That he tried to help Garofalo by calling him back to work and talking to him about his attitude and ability to get along.

            The first attachment to the answer statement consists of the statement of Papay dated November 20, 2009, and set forth above as part of Exhibit C-1. The second attachment to the answer is a copy of Garofalo’s letter of May 25, 2010, already summarized, and the third is a Summary Report from the Mine Data Retrieval System for the period of April 8, 2008, through December 21, 2010, showing only twenty-one violations over the thirty-two month period.

            In attachment four, Papay noted that Garofalo was unhappy with his job, was constantly boisterous, volatile and agitated, and that “most felt a bit threatened by his tone and demeanor.” Garofalo had been terminated because of inappropriate behavior, which was provocative, intemperate, volatile and antagonistic. He stated that no employee has the right to engage in insubordinate and disruptive behavior, and this was definitely not a case of retaliation for raising a safety issue.

            Attachment five contains a copy of an email from the wife of the employee with liver cancer about an exchange between Garofalo and a relative. In the exchange, Garofalo said that the employee should sue the quarry, but the employee’s wife advised the relative to tell Garofalo “no.”

            The final attachment, number six, is a statement written in response to and on a copy of the complaint summary of March 18, 2010. As to the alleged dangerous conditions, Papay stated that someone had thrown lunch wrappers in a pot belly stove, and he had made an employee point out the scrap can. This statement continued:

Albert and others work in a room that have (sic) garage doors within 3 feet of their work area. 3 men wanted the door open as they normally did on nice days. Albert would close it, they would open it, Albert would close it.

Albert never threatened to call OSHA or MSHA.

            The answer of Papay , as above, was also submitted as Exhibit D-8. The hearing before the undersigned was held in Harrisburg, Pennsylvania, on May 12, 2011.

            2. Hearing Testimony

                        A. Testimony of Albert F. Garofalo, Complainant

            Garofalo testified that he worked for Dally Slate Company at the Pen Argyl location beginning in 1977 for two (2) years, and again from 1993 until 2005, when the company merged with Penn, and he was laid off. Tr. 14,15,18. He returned to work for about one-and-a-half years until June 24, 2008, when he was again laid off, and collected unemployment. Tr. 16. He was called back to work at Penn, at a different location, Slatington, on September 8, 2009, and worked there until discharged on November 16, 2009. Tr. 18, 19, 29, 30.

            He also testified to many years of experience splitting slate for roofing. This is done by hand, using a hammer and chisel. He also operated a forklift. Tr. 17, 19. At the Penn Slatington location, he worked in a building with a large room and three (3) garage doors opening to the outside, and an adjoining smaller room with both a garage door and an entry door to the outside. The rooms are separated by a wall with an opening. Tr. 20-21, 72; see also Ex. D-11. His work area was close to the garage door next to the adjoining room. Tr. 22. In the adjoining room, there is a potbelly stove with a lid on top used for warmth on cold days. Tr. 24, 71, 78.

            As he began to work on Friday, November 13, 2009, he saw through the opening between the rooms that employee James German was starting a fire in the potbelly stove with wood, coal, plastic quart and gallon juice containers, plastic microwave-type food containers and plastic utensils taken from the garbage can. Tr. 23-24, 97-99, 103, 137-138. The lid was off the top of the stove, and this would cause smoke to fill up the room. Tr. 24. There was also dust in the room. Tr. 25. He opened the garage door, walked into the next room and put the lid on the top of the stove to stop the smoke. Tr. 25, 43. German then told him to go back where he belonged, grabbed him from behind by his right shoulder and they wrestled for couple of minutes. Tr. 25. No punches were thrown, they were both held back by other employees and Papay and they did not go outside the building. Tr. 26, 67-68. Papay sent him to the office and talked to him about getting along with other people. Papay then gave him his paycheck, sent him home and told him to return to work on Monday. Tr. 27-30, 110.

            When he returned on Monday, November 16, 2009, Garofalo told Papay to correct the smoke problem or he would report it to MSHA. Papay told him he would not, and fired him. Tr. 30. He was not arrogant or belligerent with Papay, and did not say he was going to knock German’s block off. Tr. 60-61. He went home and called the unemployment office. Tr. 30-31. He filed a claim in which he wrote that he intended to report Papay to MSHA. Tr. 37. In February 2010, he gave statements to MSHA investigators about dust, smoke, forklift brakes, broken pallets and the building he worked in hanging over a cliff. Tr. 49-50.

            In further testimony, he acknowledged that there had been a number of arguments with fellow employees at Dally Slate. Tr. 85. Additionally, in 2006, while at Dally Slate, he received a police citation for assault, plead guilty, and paid a fine. Tr. 78-82. He also had issues at Penn with employees Frank, Tom and Chuck. Tr. 133, 135.

                        B. Testimony of John Dally

            Mr. Dally testified that he was the President of Dally Slate Company from 1998 until the merger, and then became a division manager for Penn. Tr. 159. He believed that Garofalo had been employed since approximately 1993. Tr. 161. He recalled that Garofalo fairly regularly had verbal confrontations with other employees, as well as a physical altercation with employee Davidson. Tr. 162-163. When told of the altercation, Dally went to the area and found Davidson on the ground. Garofalo said that Davidson had just fallen backwards. Tr. 174.

            Dally further testified that despite Garofalo’s verbal arguments with other employees with whom he came in contact, and even after the altercation with Davidson, Garofalo was not fired because he was a very good splitter. Tr. 166. In 2009, he was re-hired because of his skills. Tr. 181.

                        C. Testimony of Peter Papay

            Papay testified that he has been the President of Penn since 1994 and also has forty-four (44) years of experience in the slating business. Further, he has performed every job in the business. Tr. 186-187. He hired Garofalo back because he needed a splitter due to an increase in orders. Id. On the first day, he told Garofalo that he was aware Garofalo had been a troublemaker who had caused a lot of problems with other employees and that his problems would not be tolerated. Tr. 188. However, the problems started about seven (7) days later and Garofalo had to be reprimanded several times for calling other people names. Tr. 189-190. Garofalo was not getting along with anyone and could not get through a day without having a problem. Tr. 222. There were no written reprimands, but many verbal warnings. Tr. 266-267. Garofalo would complain to him about the work of the other employees, but Papay found that these complaints were invalid. Tr. 257-258.

            3. Post Hearing

            The parties submitted post hearing briefs and Complainant submitted a reply brief after the conclusion of the hearing and receipt of the transcript.

VII. Findings and Conclusions

            1. The Prima Facie Case

            Initially, Garofalo must prove a prima facie case of discrimination by establishing that he engaged in protected activity and that Respondent took adverse action against him motivated, in some part, by the protected activity. While reporting, or telling an employer that you are going to report, violations to MSHA (or OSHA) is certainly protected activity, Garofalo cannot prove by a preponderance of the evidence that Papay’s decision to fire him was based upon such actions.

            This result is necessitated by the fact that I am unable to find Garafalo to be credible either in his writings or his testimony. Many of his statements are inconsistent with the clear weight of the evidence surrounding his employment at Penn and Dally Slate. It is well established that he did not get along with the other employees, and that he was the reason for the conflicted workplace relationships. Yet, on March 29, 2010, to the Special Investigator, he reported that he got along with everyone. Despite Papay’s pointed warnings at the time he was hired in September 2009, Garafalo did not make the effort to get along with his coworkers. Indeed, in his testimony at the May hearing, he acknowledged that he had had arguments and an assault citation at Dally Slate, and also had “issues” at Respondent Penn with employees Frank, Tom and Chuck.

            Garofalo has authored unreliable claims, and in testimony has been an incredible witness. Throughout the entire process of pursuing the unemployment and discrimination claims, he has made incorrect and unsubstantiated comments about Respondent, owner Papay, and the other employees. His characterization of the fight and his termination both in written statements and testimony is unbelievably benign and has not been consistent. His story that German started the fight is not believable when considering his history of verbal and physical abuse of fellow employees, and the findings of Papay upon questioning witnesses present at the time that Garofalo started the fight. He also made claims that Respondent had a long history of repeated violations. Upon checking the violation history, Respondent’s Quarry was cited for only twenty-one violations between April 8, 2008, and December 21, 2010, and multiple violations of a particular safety standard are not shown.

            In his discrimination complaint of March 18, 2010, Garofalo alleged that he was fired after complaining about numerous dangerous conditions. However, in earlier statements pursuant to the unemployment claim and appeal, the complaint was of burning rubbish in a stove and he had threatened to report Papay on that basis, not numerous conditions. In his March 29, 2010 statement, he again brought up numerous conditions. But it was after his termination that he began listing various alleged violations at the mine, and on investigation the claimed violations were not substantiated. One example is the statement made on the questionnaire of November 19, 2009, that the company was under investigation by OSHA (meaning MSHA) and had been given a time period to fix all the faulty wiring throughout the company. There is no evidence of such an agency directive regarding widespread electrical problems. In fact, only one citation was issued at the regular MSHA inspection in March 2009, months before his employment, and no other citations until the next regular inspection beginning in December 2009, well after his employment was terminated. Further, Garofalo made claims that an employee was forced to quit when he became ill from lung cancer due to the dusty atmosphere. The employee actually has liver cancer and his family was put in the awkward position of having to turn down suggestions from Garofalo to sue Respondent. Finally, his demeanor at hearing when responding to questions was hesitant with some evasiveness as he appeared to be searching for the answer best suited to his claims.

            Papay, however, has consistently stated that Garofalo did not mention reporting him to MSHA, and has opined that this was fabricated. He credibly testified that Garofalo never made the statement concerning reporting him to OSHA and MSHA, so he was completely unaware that violations would be reported. Although Garofalo claims that he made repeated complaints to Papay about the dust and smoke conditions and threatened to report him to MSHA and OSHA, this claim is unsubstantiated by the record. To the contrary, the inspector for MSHA who issued the citations for dust overexposure months after the termination noted that Papay seemed genuinely surprised that the samples were out of compliance because they had never received a citation for dust or smoke.

There is no evidence to corroborate Garofalo’s claim that he threatened Papay with reports to MSHA or OSHA. In fact, the only corroborated complaint concerned the throwing of food wrappers into the stove. Papay had an employee point out the “scrap can” to the other employees.

            Moreover, Papay’s statements regarding the fight have been quite consistent. After the fight was broken up, he first sent Garofalo home to prevent additional fighting, and then sent German home, both to return on Monday. He then investigated the circumstances with employees who were in the building at the time. He learned that Garofalo had started the fight and thrown the first punch. Similarly, Papay’s statements regarding the events of Monday morning have been quite consistent. German was counseled first, and agreed to get along, and “shake hands”. But when Garofalo was counseled, he displayed loud, threatening and insubordinate behavior. Considering the safety of his employees, Papay could not allow this kind of attitude in the workplace; thus he immediately terminated Garofalo’s employment.

            Considering the credible evidence and testimony of record, I find that Respondent did not have knowledge of Garofalo’s reports to MSHA, or indeed, of any intent by Garofalo to submit a safety complaint until long after the termination and only upon institution of legal proceedings.

            Based on the credibility determinations set forth above, I place the greater probative value on the statements and testimony of Papay. Since I am unable to find significant probative value in the statements and testimony of Complainant Garofalo, the weight of the evidence compels the conclusion that the claimed protected activity did not occur.

            Second, Respondent does not show any hostility or animus toward MSHA safety procedures and/or standards. In his testimony, Papay clearly states that MSHA inspections and citations are both routine and expected. Rather than displaying anger or hostility, he seemed more resigned that this is what mines must live with in order to operate. In reviewing all of Papay’s writings, statements and testimony, I found nothing that would establish even a negative attitude towards complaints of safety at the mine. Also not established is any history of an intolerant attitude toward safety related complaints. Based on the foregoing, I find that Respondent did not display animus or hostility toward MSHA policy or procedures, including protected activity.

            Third, the timing of the adverse action is entirely separate from any alleged protected activity. Garofalo was terminated on November 16, 2009. He began reporting to MSHA and OSHA months after this termination. The only way that the timing of the protected activity and adverse action could be in relationship to one another would be if Garofalo actually threatened to report Respondent to the Labor Board, OSHA or MSHA. Based on the credibility discussion above, I find that Garofalo did not make the threat and, therefore, he engaged in what would have been protected activity after the adverse action occurred.

            Finally, Garofalo argues that he was treated differently because of his threat to report Respondent’s Quarry to MSHA and OSHA. It is a fact that German was sent home the day of the fight, but then allowed to return to his job even though Garofalo was fired. However, Garofalo had a long history of altercations, both verbal and physical, with other employees, including an arrest for one such altercation. On Monday morning, upon counseling by Papay, German agreed to get along with Garofalo and “shake hands.” In contrast, Garofalo displayed aggressive and insubordinate behavior and stated that he would take further violent action if anything was said to him. Although Garofalo has argued that German had the same history of problems with coworkers, there is no evidence to substantiate this claim. Papay testified that he had no knowledge of any such problems with German. Papay’s statements include the observation that German was a reliable employee who mostly kept to himself. Based on the differences in the employees’ work records and behavior, including their interactions with Papay, I find that the different treatment in this particular situation was justified.

            Based on the foregoing, I find that Garofalo has failed to establish a prima facie case of discrimination. His request for reinstatement and compensation for the alleged discriminatory action should, therefore, be denied.

            2. Rebuttal

            Although I have found that Garofalo has not proven a prima facie case of discrimination, even if he had, I would have found that Respondent successfully rebutted it. Respondent argues, and I agree, that no protected activity actually occurred here. While reporting safety standard violations is protected activity, Garofalo was no longer Respondent’s employee when he complained. This case more resembles that of a concerned citizen or disgruntled former employee reporting violations to an agency. This may be responsible behavior, if the reports are correct, but it is not protected activity in the context of the Mine Act.

            It follows that even if complaints raised but not reported for months after termination, and with no employer knowledge of such complaints, could be considered protected activity, I would still find that the adverse action was in no part motivated by the protected activity. Garofalo was terminated for precipitating a fight, failing to agree to make amends, and failing to agree to get along with coworkers or behave appropriately in the workplace. His history of verbal and physical altercations dating back to the first time he was employed by the company strengthens the decision to terminate taken by Papay, acting as owner of the mine and supervisor of its employees.

            Finally, the fact that Garofalo precipitated a fight and then began acting aggressively upon returning to discuss the incident with Papay creates a strong affirmative defense as well. It was the fight of Friday morning that was the subject of the supervisor-employee discussion on Monday morning, and even if words to the effect of reporting a safety hazard were injected into this discussion, it was the fight and continuing aggressive behavior that formed the decision to terminate the employment. Therefore, even if I were to find that Papay was motivated somewhat by the threat of a hazardous condition report to MSHA, I would also find that there was justification for terminating Garofalo for the fight alone.

ORDER

            Having found that Complainant, Albert F. Garofalo, has failed to prove a prima facie case of discrimination, his complaint and this proceeding are hereby DISMISSED.

                                                                        /s/

                                                                        Kenneth Andrews

                                                                        Administrative Law Judge

Distribution:

John P. Karoly III, Esq., The Karoly Law Firm, LLC, 1555 North Eighteenth Street, Allentown, PA 18104

Steven E. Krawitz, Esq., Krawitz & Krawitz, P.C., 553 Main Street, Stroudsburg, PA 18360

/kmb