FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION>

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October 20, 2011

DECISION

Appearances:              Tony Oppegard, Esq., Lexington, Kentucky and Wes Addington, Esq., Appalachian Citizens Law Center, Whitesburg, Kentucky, on behalf of the Complainant;

Stephen M. Hodges, Esq., Penn Stuart Eskridge, Abingdon, Virginia, on behalf of the Respondent.

Before: Judge Rae

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

I.    PROCEDURAL BACKGROUND

            On June 15, 2009, Gray filed a complaint with the Mine Safety and Health Administration (“MSHA”) alleging discrimination under section 105(c)(2) of the Mine Act, 30 U.S.C. §815(c)(2). Having investigated the allegations, the Secretary decided there was insufficient evidence of discrimination and declined to initiate an action on behalf of Gray.  Subsequently, on December 30, 2009, Gray initiated this action by and through his attorneys under section 105(c)(3) of the Act, 30 U.S.C.§815(c)(3).   A hearing was held before me in Big Stone Gap, Virginia at which counsel presented evidence.  Subsequent to the hearing, both parties filed briefs which have been received and considered in rendering this decision.

            Gray alleges that he engaged in protected activity when he complained that North Fork Number Four (North Fork) ordered him to install roof bolts in an illegal and dangerous deep cut on one occasion, and then he refused to bolt a second similar deep cut several days later.  He also alleges he made other safety complaints and as a result, was terminated from his employment on May 15, 2009. North Fork denies that Gray engaged in any activity protected under §105(c), and that his termination was motivated solely by his poor performance.

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

II.    STATEMENT OF THE CASE

            Mark Gray, the Complainant, has twenty-nine years of experience in the mines, seventeen of which as a roof bolter. (Vol. I: Tr. 16, 166.) Gray has worked for approximately thirty coal mining companies throughout his career. (Vol. I: Tr. 166.) Gray worked as a roof bolter operator for North Fork for approximately seventeen months from the winter of 2007 until his discharge on May 15, 2009. (Vol. I: Tr. 171.)  There are three shifts in North Fork, the day shift, the second shift, and third shift. (Vol. II: Tr. 53.) The day shift and the second shift produce coal while the third shift is a non-production maintenance shift. (Id.) He started on the third shift roof bolting and was eventually moved to the day shift during the summer of 2008. (Vol. I: Tr. 17, 172.) There are two sections in the North Fork Number Four Mine, section 001 and section 002 located one and one half miles apart. Gray and his partner worked in the 001 section of the mine. (Vol. I: Tr. 169; Vol. II: Tr. 53.)

            On the day that Mark Gray was discharged, the section foreman was Thomas Cornett and the superintendent of North Fork was Anthony Estevez. Russell Ison was the mine superintendent of North Fork immediately before Anthony Estevez. (Vol. I: Tr. 96.) He [Ison] was superintendent from January 1, 2008 to mid-to-late March, 2009. (Id.)  At the time Gray was discharged, Steve Countiss was the day shift out by foreman and Thomas Cornett was the day shift foreman. (Vol. I: Tr. 59, 176.) Gray operated a double-headed bolting machine, which has two operators who install bolts simultaneously. (Vol. I: Tr. 173.) Gray’s roof bolting partner while on the day shift was Chris Sheeks. (Vol. I: Tr.174.) 

            The roof control plan approved by MSHA in effect at the time allowed a maximum of forty foot cuts on four foot patterns. (Vol. I: Tr. 60,180.) The mine is known to have an unstable roof due to the local geologic conditions thereby limiting the depth of each new cut of coal by the continuous miner to a maximum of forty feet to avoid a roof fall.  After the miner operator makes the cuts, the roof bolter installs the bolts in the newly cut area to support the roof protecting it from collapsing. It is also the job of the bolter to hang curtains behind the bolting machine to ensure proper air flow and ventilation to the face. (Vol. II: Tr. 69.) The bolting of the roof and hanging of curtains are two critically important safety measures involved in mining out a new area.  The two partners that make up the roof bolting team are the “offside,” also known as the “pinman,” and an “operator.” The offside and the operator are both responsible for making sure the curtains are hung, although it is the operator who usually hangs the curtains. (Vol. I: Tr. 231.)
           
            There is a conflict in the testimony from the witnesses as to what position Gray worked during his term as a roof bolter. Estevez testified that Gray worked the offside and that it was his job to keep the curtains hung. (Vol. I: Tr. 69.) Cornett testified that Gray was the operator and that it was the operator who usually hung the curtains. (Vol. I: Tr. 231.) Gray testified, as well, that he worked the operator’s side of the roof bolting machine and that he hung most of the curtains. (Vol. I: Tr. 173; Vol. I: Temp. 52.) Sheeks testified that he was the operator while Gray ran the offside and that Gray was primarily responsible for keeping the curtains hung. (Vol. II: Tr. 63.) The conflict in the testimony from the witnesses as to what position Gray worked during his term as a roof bolter is immaterial to the issue of who had the primary responsibility of hanging the curtains since all witnesses testified that it was Gray’s primary responsibility to keep the curtains hung and Sheeks testified that he and Gray switched sides once they received a new bolting machine with new safety features. (Vol. II: Tr. 89.)

III.    PRINCIPLES OF LAW

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

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

30 U.S.C. §815(c)(1).

           Under established Commission law, a complainant establishes a prima facie case of a violation of section 105(c) if a preponderance of the evidence proves (1) that the complainant engaged in a protected activity and (2) that the adverse action complained of was motivated in any part by the protected activity.  Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 329 (Apr. 1998); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, sub nom. Consolidation Coal Co. v. Marshall 663 F. 2d 1211 (3rd Cir. 1981).  

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

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

           The nexus in time between the protected activity and the adverse action can, standing alone, establish a sufficient basis upon which to find improper motive to terminate. Sec’y of Labor on behalf of Clay Baier v. Durango Gravel, 21 FMSHRC 953 (Sept. 1999).

           In analyzing a business justification as an affirmative defense for an adverse action, the Commission has held that:

[t]he proper focus, pursuant to Pasula, is on whether a credible justification figured into motivation and, if it did, whether it would have led to the adverse action apart from the miner’s protected activities . . . [T]he narrow statutory question is whether the reason was enough to have legitimately moved that operator to have disciplined the miner. (Citations omitted).    

Chacon, 3 FMSHRC at 2516-17.

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

IV.   FINDINGS OF FACT AND CONCLUSIONS OF LAW

            The narrow issue before me is whether Gray has established a prima facie case of having engaged in protected activity as he claims. Having carefully reviewed the record in the light most favorable to the Petitioner, I find there is no support for Gray’s allegations of engaging in protected activity.  Having the burden of proof in establishing a prima facie case, Gray has failed to produce a single credible witness or tangible evidence in support thereof. 

            Gray contends that on May 5, 2009, in violation of the roof control plan in effect at the time, a 50 to 60 feet cut of coal was made which he and his partner, Sheeks, were told to bolt.  Further he alleges that three days later, on May 8, 2009, a second cut of 50 feet or more was made which he refused to bolt. Gray contends that his termination on May 15, 2009, was in retaliation for this complaint, refusal to bolt the second cut and for making “other safety complaints.” (Vol. I: Tr. 194.)  Gray alleges that the other protected activity involved hanging ventilation curtains. He asserts that when he stopped his drill to hang curtains, his foreman,Cornett, acted angry and mumbled something under his breath. Thereafter, Cornett was not friendly towards him and acted differently.  Ultimately, he was fired after these events took place.

The Deep Cuts
           
            Numerous witnesses testified consistently that there has never been a cut in excess of 20 feet made in this mine due to the extremely adverse roof conditions. (Vol. I: Tr. 73, 90, 126, and 247-248, Vol II. Tr. 7, 22, 33, and 75-76.)  Although the approved roof control plan allowed a maximum cut of 40 feet, cuts of 18 to 20 feet were being taken in the 001 section because of the roof conditions.

            Cornett, section 001 foreman, testified that he has been a miner for 36 years, 26 of which he has been a foreman. He was Gray’s immediate supervisor in May 2009. ( Vol I: Tr. 226-227.) In April and May of 2009 the cuts being made in the mine were 18 feet deep because the top consisted of draw rock which presented a discrete danger of falling. No one was taking cuts of 30 feet much less 50 feet or more for that reason.  If a deep cut had been made, it would have been noticed by several people – the two pin men, the car drivers, the miner operators and the foreman. If he had been made aware of anyone making such cuts, he would have notified the superintendent and they would have been disciplined. (Vol. I: Tr. 245-247.)

            Cornett testified that Gray never refused to bolt a cut or complained to him about having to bolt a cut.    Cornett further testified that Gray was disciplined by him numerous times for bolting too slowly, using the wrong size bolts, not installing 12 foot rope bolts in corners, putting bolts too far apart in violation of the roof control plan, not putting pressure on his drill to drive the bolts into the roof and for not hanging the curtains as required. At one point in time, Cornett admonished Gray on almost a daily basis and made notes of this in his daily log.  In fact, on April 14, 2009, Cornett noted that Gray was not putting pressure on his drill to sink his bolts. On April 22, 2009, a note indicates that Gray was making remarks that “the men on section could fuck over a boss and cut coal run down. It took him 25 minutes to spot 1 bolt on corner in good condition.”  On April 28, 2009, Cornett’s notes indicate that Gray and Sheets never hung their curtains in the # 4 left and used the wrong size bolt rope.  On April 28, 2009, Cornett recorded that he reprimanded Gray for holding up the section and engaging in unsafe activities such as leaving two curtains down and improperly spot bolting with the wrong size bolt.  On April 29, 2009, Cornett recorded a second warning to Gray for not hanging his curtains and not using roof bolts to spot bolt.  On May 11, 2009, the notebook indicates that it took Gray three hours to install nine bolts.  On May 12 and 15, 2009 there were similar entries concerning exceedingly slow bolting. (Vol. II: Tr. 229, 233-248; Ex. R-3.)  Gray testified that any such notes were completely made up.  (Vol. I: Tr. 212.)

            Jerry Lynn Hall, a continuous miner operator of 7 years, was on the 001 section in May 2009.  He was the only miner operator on Gray’s shift so he would have made the two alleged deep cuts.  He testified that he never took a cut in that period that exceeded 20 feet nor was he aware of any such cut being made in this mine. (Vol. II: Tr. 7- 9.)  He had no knowledge of Gray making any safety complaints to anyone and felt that Gray was not keeping up on his bolting after Hall made the cuts.  When Gray was replaced, Sheeks and his new partner were keeping up with the other section and were not falling behind according to Hall. Ex. R-10.

            Gray testified that Sheeks and he bolted the first deep cut together.  Gray testified that he did not make any complaints about this cut to anyone, including Cornett.  (Vol. I Tr. 212-214.)  When the second cut was made and Gray was told by Cornett to bolt it, he refused.  He testified that, again, Sheeks was with him and heard the entire conversation between him and Cornett.  (Vol. I Tr. 214.) Sheeks, however, testified that Cornett never told him or Gray to bolt a cut of 50 feet or greater.  Sheeks testified that he had never seen such a cut in that section of the mine and he never heard Gray refuse to bolt such a cut.  (Vol. II. Tr. 75-76.)  

            Sheeks testified that Gray told him that he had been disciplined three or four times by management, including once for holding up production by not having enough cable to reach an entry.  Sheeks also confirmed that he and Gray were called into Estevez’s office and disciplined for holding up production by bolting too slowly. Sheeks told Estevez that it was Gray that was holding him up and asked for a new partner.  (Vol. II: Tr. 72-73.)  They were also counseled by Countiss for being too slow.  (Vol. II: Tr. 67.) Sheeks further testified that Gray told him the company could not fire him because they could not afford to; no one else wanted to work for them. If they did, Gray would file for unemployment and if he was turned down, he would then file a discrimination complaint. He said he kept an attorney on retainer for this purpose.  (Vol. II: Tr. 69-75.) Gray denied that he made these comments to Sheeks but he did confirm that he filed for unemployment and his claim was denied.  He then filed this discrimination complaint.  (Vol. I: Tr. 222-223.)

            The only other day shift roof bolting crew in the 001 section consisted of William “Snappy” McFarland and Bill Peak who would have had to bolt the cut Gray allegedly refused to bolt.  Both of these witnesses denied that they either bolted or saw a cut in excess of 20 feet in this mine. They further confirmed that the cuts were on average 20 feet deep. (Vol. II: Tr. 23, 34.) Peak provided a statement to Investigator Sturgill on July 8, 2009 in which he indicated that the last time he was aware of a cut of 40 feet was about two years earlier in a different seam of coal where the roof conditions were better. He further stated that while Gray had the ability to be a good roof bolter, he was slow and did not do his job causing the other bolters to complain about him.  When Gray was replaced by a new roof bolter, the production on the Sheeks team increased. Ex. R-9.

            Marty Bates was the second shift foreman for the 001 section in 2009.  He testified that his shift was responsible for maintenance following the production shifts. He stated that the entire time he was with North Fork, there were no cuts being made in excess of 18 to 20 feet.  He never saw any cuts of 50 feet or more, never heard of any such cuts being made and never had any complaints about such cuts being made. In his opinion, had a cut of 50 feet or more been made, the top would not have held up; the roof would have caved in. (Vol. II: Tr. 43-44.)

            MSHA inspector Kevin Doan testified that he was at North Fork on May 15, 2009 to conduct a regular inspection.   At the time of this inspection, he had been an inspector for 11 years and a roof control specialist for approximately five years.  He was accompanied by Estevez on his inspection and began by making an imminent danger run across all the working sections to look for dangerous conditions. He specifically checked test holes that were bored into the roof at each of the intersections to determine the composition of the strata.  He also was particularly interested in seeing a new deflector shield that had been installed on one of the Fletcher roof bolting machines. He met with the foreman, named Tom, in the section where this new equipment was located. Doan stated that he never saw a 56 foot deep cut in the coal mine.  In fact, he stated “we have no plans in District 7 that allow anything near that depth of cut.”  Had he seen such a cut, he would have been required to issue a citation.   He testified that he never issued such a citation. He also testified that no one approached him complaining about deep cuts being taken at the mine during the time period Gray alleged the safety violations to have occurred. (Vol. I: Tr. 140, 151-1555, 161-162.)

            Countiss currently works in the safety department for North Fork and was the out by foreman on the day shift in May 2009.  He reported directly to the superintendent of the mine and was one level above the day shift section foreman (Cornett).  He testified that Gray came to his attention when the other roof bolters in the 001 section complained about Gray being slow and not hanging the curtains.  Although the roof control plan allowed for forty foot cuts, it had been a long time since anyone made that deep a cut with the roof being so unstable, he said. At no time did Gray or anyone else complain to him of a deep cut being made in that section nor did he ever see a deep cut.    (Vol. I: Tr. 106, 110, 124, 126-128.)

            Estevez testified that he accompanied Inspector Doan on his inspection of May 15, 2009 in the 001 section of the mine.  Doan was interested in seeing the new deflector shield that had been installed on the bolter used by Gray and Sheeks. They went to the area in which Gray and Sheeks were bolting for a period of time, left and came back approximately 2 ½ hours later expecting them to be finished bolting the 18 foot section.  Upon returning, however, they found that Gray and Sheeks had installed only about 10 bolts which was one complete row and the first bolt or two of the second row. Upon his own observations, production reports and comments from the foremen and Sheeks, Estevez determined that Gray was a substandard bolter and was holding up production.  He terminated Gray based upon his poor performance on May 15, 2009. (Vol. I: Tr 51-54, 60-69.)

            Estevez stated that he held a safety meeting every Monday. In addition, he spoke to miners on each shift either before or after the shift, whenever he was at the mine. He also maintained an open door policy so that any miner could discuss safety issues with him. Although Gray attended these meetings, he never raised any complaints at the meetings or at any other time, including the day he was terminated.  (Vol I: Tr. 70-71, 90.)  Estevez confirmed that the mine was on a 40 foot plan and anything beyond that would have been illegal and very dangerous.  It would likely have caused the roof to fall in and would have exposed numerous miners to danger. Production reports indicated that cuts of 20 feet or less were being taken in May 2009.  Inspectors were on the premises almost every day looking for safety hazards such as unsupported top.  A cut of 50 feet or greater would have been a very obvious condition and would have been cited, which was not the case. No one had ever reported a cut in excess of 20 feet nor had he heard any rumors of deeper cuts being taken.  (Vol. I: Tr. 73-76, Vol. II: Tr. 23, 44.) 
           
            Three inspectors who were inspecting North Fork during that time period, William Clark, Kevin Doan, and Silas Brock, were interviewed by Guy Fain (the special investigator assigned to Gray’s discrimination claim) and, according to Fain, none told him that they saw deep cuts in the mine during April and May 2009. (Vol. II: Temp. 128-129.)  

            Gray confirmed that MSHA inspectors were in the mine almost daily during the time when the alleged deep cuts were taken but he did not know which mine inspectors saw the deep cuts that he claimed existed. (Vol. I: Temp. 77-78.)  When Gray testified at the earlier temporary reinstatement hearing, contrary to his testimony on December 15, 2009, he stated that he complained of the first deep cut to Cornett, but no one else:

Q. All right. You, you bolted it up, and you took Mr. Sheeks in there, or he went. He was a member of your crew, the two man crew, and you all went in there together and bolted that up in extreme danger, is that correct?
A. Yes, sir.
Q. And you didn't say a word about it to anyone except Mr. Cornett?
A. Yes, sir.
Q. And then a few days later, you say refused to do essentially the same thing?
A. Yes, sir.
Q. Who did you tell about that?
A. Mr. Cornett.
Q. Anyone else?
A. No, sir.
Q. Did you ever mention it at a safety meeting?
A. No, sir.
Q. Did you ever go to Mr. Estevez?
A. No, sir.
Q. Did you ever go to Mr. Countiss, the mine foreman?
A. No, sir.
Q. Did you ever talk to the other crew members?
A. No, sir.

(Vol. I: Temp. 85-86.)

            Gray asserted in his testimony that based on his experience it was not unusual for companies in Kentucky to take deep cuts from time to time. (Vol. I: Tr. 189-190.) However, when asked on cross-examination as to the specifics of other deep cuts being taken in Kentucky mines, Gray could not come up with an adequate response:

Q. Okay. So how, how many of these thirty coal mines were taking deep cuts, that you've told the Judge many of 'em or a lot of 'em, all over the place take deep cuts?
A. I -
Q. How many of 'em are taking deep cuts?
A. I can't recollect that. I -
Q. Pardon?
A. I don't know, I can't recollect that.
Q. Well, did you report any of these people to MSHA for violating safety laws?
A. No.
Q. Did you take the deep cuts?
A. No.
Q. Did you refuse to take the deep cuts?
A. No.
Q. Were you ever asked to bolt up a deep cut in another coal mine?
 A. Yes.
Q. Did you do it?
A. Yes.
Q. How many times have you done it in other coal mines?
A. There's not a number comes to mind.
Q. Pardon me?
A. There's not a number comes to mind; I don't know.
Q. You don't know how many?
A. No.

(Vol. I: Tr. 202-203.)

            I find the assertions by Gray that two cuts in excess of 50 feet were made in or about May 2009, without merit.  Gray did not present any witnesses to corroborate his allegations.  Furthermore, it is highly unlikely that in a mine where a 50+ cut would have almost certainly caused a roof fall, that none was seen or cited by any of the inspectors who were in this mine on an average of three to four days per week. It also defies common sense that if Gray had been so concerned with these two illegal cuts that he did not avail himself of the opportunity to make his safety complaints to one of these inspectors, particularly Inspector Doan who was in Gray’s section to inspect his bolter twice on the day Gray was terminated.  Gray’s inability to articulate when, where, by whom or how often he had seen deep cuts being made anywhere in Kentucky or that he had ever reported any of them despite being so concerned for his safety, is extremely telling with respect to his credibility. Furthermore, he testified at the temporary reinstatement hearing that he complained to Cornett after he bolted the first deep cut. At this hearing, he testified that he told no one. He testified that Sheeks was a party to the conversation when he refused Cornett’s alleged order to bolt the second cut but Sheeks adamantly denied he ever saw or bolted cuts in excess of 20 feet in the 001 section of the mine.  Gray testified that the numerous counseling notes in Cornett’s field notes are a pure fabrication although Cornett’s notes were admitted into evidence and clearly denote numerous deficiencies by Gray on a frequent basis. Clearly, Cornett noted very specific and frequent unsafe practices engaged in by Gray as well as a hostile attitude held by Gray towards management.  The notes speak for themselves.  This attitude was clearly expressed by Gray in his comments to Sheeks about what he would do if he were fired for his performance, which I find provides the motive behind Gray’s alleging discrimination and falsely reporting illegal deep cuts being taken in the mine.  It also explains his inability to specifically enunciate the “complaint” he made about curtains or when, where, by whom, etc other deep cuts were made in the Kentucky mines. 

The Curtains/Other Safety Complaints
           
            Gray’s complaint regarding curtains is that on one occasion he hung his curtain before getting into a spot to bolt and Cornett acted “like he was mad, started mumbling under his breath, and walked off.” ( Vol. I: Tr. 179.) Gray testified that he got the impression of Cornett being angry although he admitted that he had no idea what Cornett was mumbling. ( Vol. I: Tr. 204.) Moreover, Gray could not explain why Cornett would be angry at him for hanging curtains since he admitted that curtains are critical to the safety of everybody in the section. (Vol. I: Tr. 179, 204.)  In fact, when asked on cross-examination whether Gray expected the court to believe that he was fired because he wanted to hang curtains and Cornett did not want him to, he responded: “I don’t know, I don’t really know.” (Vol. I: Tr. 207.) He added that Cornett never told him not to hang curtains.  He stated that Cornett never said anything at all to him about curtains.  (Vol. I: Tr. 209.)  Again, Gray contends that Sheeks was a witness to this event.  (Vol. I: Tr. 209).  Sheeks did not confirm this in his testimony.

            The evidence does show that Gray did not hang his curtains as required and was reprimanded on numerous occasions by Cornett for his failure to do so. (Vol. I: Tr. 229-230, 240; 267 and Vol. II: Tr. 68-69; Ex. R-3.)

            The subject of curtains arose in a manner inconsistent with Gray’s position that he raised it as a safety complaint.  On June 17, 2009, Gray gave a written, signed statement to Special Investigator Fain.  In his original written complaint to MSHA, Gray made no mention of a curtains incident.  After the initial interview with Gray, Fain interviewed Cornett during which Cornett informed Fain that he had reprimanded Gray on numerous occasions for not hanging the curtains as required.  (Vol. I Tr. 272; Ex. R-8).  Thereafter Fain, an acquaintance of Gray’s of 10 years, went back to Gray's home to interview him a second time on July 31, 2009.  At this meeting, Fain brought up the issue of curtains; Fain testified as follows:

Q. All right. Well, did you go back to visit Mr. Gray up in late July, and bring up the subject of curtains?
A. Yes, and other matters.
Q. Let me show you, just to refresh your recollection, a document dated July 31, 2009. Is that a memorandum of interview, written and signed by you?
A. Yes, sir.
Q. And did you go to Mr. Gray’s home on that occasion?
A. Yes.
Q. And is that the first time he mentioned any complaint about curtains?
A. Yes.
Q. And is that because you specifically asked him if he had any other complaints, is that what the memo says?
A. Yeah.

(Vol. II: Temp. 88, 123-124.)

            When asked at the hearing to explain exactly what complaint was made to Investigator Fain during this second interview regarding the curtains, Gray testified as follows:

Q. Why did he say he wanted to talk with you at that time?
A. He was showing me some papers.
Q. What papers did he show you?
A. I don't recall.
Q. Okay.
A. He just showed me some papers.
Q. And did he ask you whether you made any other safety complaints that you hadn't told him about previously, on that occasion?
A. I don't remember if he asked me that or not.
Q. Did he ask you to sign a paper at that time?
A. I don't remember, I don't remember.
Q. All right, I want you to tell me about the complaints about the curtain. When did you say they occurred?
A. About two weeks prior to my discharge.
Q. And do you remember a specific complaint that you made about the curtains?
A. A specific complaint, I had to hang 'em.
Q. Okay, you were told to do the labor involved in hanging the curtains, is that right?
A. The entire crew, me and my partner both was involved in, you know, we both had to do it.
Q. All right. Now what, what was the complaint about you being told to participate in hanging curtains?
A. The complaint, excuse me? I don't understand the question.
Q. What, did you complain to someone about curtains? Someone in mine management, did you complain to them about curtains? That's my question.
A. I told the section foreman that I had to hang curtains, had to hang my curtains that I had, yes, sir.
Q. Well, is that a complaint, or a statement, or what?
A. It's a complaint, it says complaint. (Emphasis added)
Q. All right. Tell me what is the complaint about? That you were being made to do the labor?
A. I don't, I don't understand what you said.
Q. Mr. Gray, you say that you can recall some specific event about curtains that occurred about two weeks before you were fired, is that right? Is that what you're telling the Judge?
A. I, I don't remember. I don't understand what you're saying. I don't, could you rephrase the question, because I don't understand. I don't understand what you're saying.
Q. About two questions ago, you said you made a comment about curtains, about two weeks before you were fired.
A. Yes, sir.
Q. All right. What was the complaint? Tell me what you said.
A. The complaint was that I had to stop the drill, get off the drill and hang my curtains into my headings, to ventilate the headings.
Q. And why was that a complaint? What was wrong with that?
A. The complaint was, really, I tell the bo-, when I'm telling the boss to do it, I told Mr. Cornett that I had to do it. He acted like he got angry, and mad at me.

(Vol. I: Temp. 71.) 

            Gray testified that Sheeks was a witness to the incident described above.  (Vol. I: Tr. 208-209.)  He further stated that if Cornett’s notes which he took on a daily basis indicated that he reprimanded Gray for this or for bolting too slowly or any other issues, Cornett’s notes are fabrications.  (Vol. I: Tr. 209-212.)  Sheeks testified that he never heard Gray complain about the company not keeping curtains up.  He did confirm that Gray did not do his part in installing the curtains as required. (Vol. I: Tr. 76.)

            Clearly, Fain brought up curtains at the second interview and only then did Gray have “other complaints” about curtains. Even then, Gray could not articulate at either hearing what complaint he had concerning the curtains. He simply stated “it’s a complaint, it says a complaint.” Gray himself did not characterize the alleged issues he had with curtains as a complaint; Fain had characterized it that way for him. Further, Gray could not elaborate on how his telling Cornett he had to hang his curtains could be considered a complaint. Gray was unable when asked to fully explain what the complaint was and stated that he did not understand the question. In addition, he changed the version of what his complaint was from “The complaint was that I had to stop the drill, get off the drill and hang my curtains into my headings, to ventilate the headings” to “The complaint was, really...when I'm telling the boss to do it, I told Mr. Cornett that I had to do it. He acted like he got angry, and mad at me.” (Vol. I: Temp. 71.)

            I do not find Gray’s allegations credible that he made any complaints about hanging curtains or that he was treated in a hostile manner when he did so.  I find, instead, that he was disciplined on several occasions for not hanging his curtains as required, among other deficiencies, and was terminated as a result.  He retaliated by filing this discrimination complaint once his unemployment claim was denied.

Credibility of Witnesses for the Respondent

            1. Chris Sheeks

            I credit Sheeks’s testimony because his testimony remained consistent with those of Cornett and Estevez. Sheeks testified that he and Gray received various verbal warnings from Cornett and Estevez and that Gray had told him that he had been written up by Estevez and Ison. (Vol. II: Tr. 67, 71, 90.) Sheeks’s testimony was corroborated by the testimony of Countiss, Estevez, and Cornett who testified that Gray had been counseled and received verbal warnings. (Vol. I: Tr. 109, 37-41, 242-244.) His testimony was consistent with that of Estevez in stating that during the first meeting Estevez had with Gray and Sheeks in his office, he showed them production reports and asked them to pick up production. (Vol. II: Tr. 72; Vol. I: Tr. 67-68.) Sheeks’s testimony is also consistent with that of Cornett in stating the Gray often failed to hang his curtains and would have to be told to do so often. (Vol. II: Tr. 68-69, 76; Vol. I: Tr. 240-241.) Sheeks also testified consistently with Cornett that he never heard Gray complain about deep cuts and that he never bolted a 56 to 60 feet deep cut. (Vol. II: Tr. 75-76; Vol. I: Tr. 248.) His testimony was also consistent with other witnesses regarding Gray’s reputation for being slow. (Vol. II: Tr. 25-26; 31-32; 64-68; Vol. I: Tr. 41, 125-226, 229.) Therefore, based on the evidence, I find Sheeks to be a credible witness.

            2. Thomas Cornett

            I find Cornett credible because his and Sheeks’s testimony correlated on several material points regarding Gray’s performance, specifically regarding Gray’s slow bolting, failure to hang his curtains, using the wrong bolts, not having enough cable, and pretending to work on occasion by spinning the drill. I also credit his testimony as more believable due to the fact that he took notes contemporaneously with his observations of Gray’s performance which corroborate his testimony. His testimony regarding never having seen a deep cut in the mine between 56 and 60 feet and not telling Gray and Sheeks to bolt two deep cuts is supported by the testimony of Sheeks as well as the other roof bolters in the 001 section and the miner operator, Jerry Hall. His testimony regarding the mine having adverse roof conditions and it being dangerous to take a 50 to 60 foot deep cut in the mine during that time period is supported by the testimony of several witnesses including Estevez and Inspector Doan. His testimony that cuts no deeper than 18 feet were being taken in the mine during that time is supported by the testimony of Estevez, Hall, Peaks, Sheeks and Bates. Therefore, I find Cornett is a credible witness.

           3. Anthony Estevez

            I find Estevez credible as his testimony remained consistent throughout the hearing and throughout the temporary reinstatement proceeding. In addition, on many material points his testimony correlated with the testimony of the other witnesses. Estevez’s testimony regarding his observations of Gray’s slow performance and the impossibility of there being 56 to 60 foot deep cuts in the mine since it would have been dangerous correlated with the testimonies of Sheeks, Cornett, McFarland, Peak, Bates, and Hall. Estevez’s credibility was confirmed when it was determined that Inspector Doan had put down that he was in section 002 of the mine in his notes on the day Gray was terminated when he was, in fact, in section 001 as Estevez had testified. Estevez’s testimony regarding the verbal warnings to Gray and Sheeks is supported by Sheeks who testified that they were told to pick up the pace by Cornett and Estevez.

            Estevez testified that he held weekly safety meetings and never received any complaints from Gray. Gray confirmed this with his testimony that he had never complained to Estevez about any safety issues or deep cuts. Hall corroborated Estevez’s testimony that there were no safety complaints by Gray because he never heard Gray make a complaint or say he refused to make a deep cut.

           4. William “Snappy” McFarland, William Peak, Marty Bates, and Jerry Lynn Hall

             I credit the testimonies of “Snappy” McFarland, William Peak, Marty Bates, and Hall as each witness’s testimony remained consistent with each other’s regarding Gray’s performance and the alleged deep cuts. All of these witnesses testified that they saw no deep cuts in excess of 50 feet in the mine, that the typical cuts taken in the mine during the spring of 2009 were 20 feet, that they never heard Gray complain about a 56 foot cut, or saw a 56 foot cut bolted up. (Vol. II: Tr. 22-23, 33-34, 43-44, 7.) Peak and McFarland testified that Gray had a reputation for being slow and that after Gray was terminated and replaced the roof bolting in the mine picked up. (Vol. II: Tr. 25-26, 31-32.)

V.  AFFIRMATIVE DEFENSE 

            Assuming arguendo that Gray was involved in  protected activity, North Fork has sufficiently established an affirmative defense showing that Gray was terminated solely for poor performance. The evidence shows that Gray was reprimanded multiple times for putting up wide bolts beyond the 48 inches required by the roof control plan, not hanging his curtains properly, spot bolting corners with a regular six foot bolt instead of a 12 foot rope bolt, using improper bolts, bolting slowly, and slowing down work for the entire section. (Vol. I: Tr. 238, 240-244, Ex. R-3, 76.)

            There is evidence that Gray pretended to work at times and multiple witnesses observed him being slow on the job, with Sheeks having to wait for him on more than one occasion. (Vol. I: Tr. 82-83,124; Vol. II: Tr. 25-26, 64-65, 67.) Estevez testified that Gray and Sheeks “were well below every other machine and every other bolting crew were at twice to three times […] what they were doing.”(Vol. I: Tr. 67.) In addition, Sheeks testified during the hearing that he asked the company to change his bolting partner twice because he did not want to be fired because of Gray’s slow performance on the job. (Vol. II: Tr. 67-68.) Evidence also shows that there were two written complaints, one verbal but put in writing and the other written, issued against Gray in February 2009 and April 2009. (Vol. I: Tr. 37, 96; Compl. Ex. A; Compl. Ex. B.)

            In addition, several witnesses testified that the roof bolting work picked up after Gray’s termination on May 15, 2009. William Peak, one of the other two other roof bolting machine operators in section 001 at the time of Gray’s termination, testified that once Jim Pennington replaced Gray, Sheeks and Pennington bolted “place for place” with the other bolting crew and the amount of work completed was comparable for both roof bolting crews in section 001. (Vol. II: Tr. 33.) Cornett also testified that production picked up once Gray was terminated. (Vol. I:Tr. 249.)  Steve Countiss testified that once a new roof bolter took Gray's place, Sheeks and the new employee “picked up the pace considerably.” (Vol. I: Tr. 129, 249.)

            In weighing the evidence, I determine that North Fork prevails on its affirmative defense and has established that it fired Gray for his unprotected activities alone.   

A. CONCLUSION

            For all of the reasons discussed above, I conclude that Gray did not meet his burden of proving a prima facie case of discrimination.  The unsafe activities or conditions he alleges were not proven to have occurred.

V.    ORDER

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

                                                                                                /s/  Priscilla M. Rae                  
                                                                                                Priscilla M. Rae
                                                                                                Administrative Law Judge

Distribution:

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

Wes Addington, Esq., Application Citizen Law Center, 317 Main Street, Whitesburg, KY 41858

Stephen M. Hodges, Esq., Penn, Stuart, & Eskridge, P.O. Box 2288, Abington, VA 24212

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