FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

Telephone No. (202) 434-9980

Fax No. (202) 434-9949

February 23, 2010

DECISION AND ORDER REINSTATING JOSE A. CHAPARRO

Appearances:  Allison L. Bowles, Esq., Marc G. Sheris, Esq., U.S. Department of Labor, New York, New York, on behalf of the Complainant

                        Rafael Sanchez-Hernandez, Esq., San Juan, Puerto, Rico, on behalf of the

                        Respondent

Before:            Judge Barbour

            This matter is before me on an Application for Temporary Reinstatement filed by the Secretary on behalf of Jose A. Chaparro pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). Chaparro filed a complaint with the Secretary’s Mine Safety and Health Administration (MSHA) alleging that his August 15, 2009, layoff was motivated by his protected activity. The Secretary contends that Chaparro’s complaint was not frivolous, and she seeks an order requiring Comunidad Agricola Bianchi (“CAB”) to reinstate Chaparro to his former position pending the completion of an investigation and final decision on the merits of Chaparro’s discrimination complaint. A hearing on the application was held in San Juan, Puerto Rico, on February 2, 2010. For the reasons that follow, I grant the application and order Chaparro’s temporary reinstatement.  

THE EVIDENCE

            CAB Aggregate is a sand processing facility located in the Commonwealth of Puerto Rico. Among other things, the facility includes a drag line, sand screening equipment and conveyor belts. It also includes a shop area where equipment is maintained and repaired. Jose Chaparro was first hired by CAB in 2008 to work as an equipment operator at the facility. When he was hired, Chaparro signed a contract that specified the company could suspend him without cause during the first 90 days of his employment. After Chaparro worked for approximately five weeks, the company’s administrator, Reynat Jimenez, concluded that Chaparro’s job performance was unsatisfactory. As a result, the company invoked the probationary contract and suspended Chaparro. Jimenez testified, and Chaparro did not deny, that following his suspension, Chaparro repeatedly called CAB management personnel and requested that he be given another chance. Chaparro told company officials that he wanted to come back and that he would work in any capacity. 

            In 2009, Jimenez decided to give Chaparro another chance. As a result, CAB rehired Chaparro on June 1, 2009, this time as a maintenance worker. Chaparro’s duties included servicing equipment both on-site and at the shop. He cleaned the shop floors and collected oil. When he was rehired, Chaparro again signed a probationary contract. The contract was dated June 1, 2009. As before, the company retained the right to fire Chaparro for any reason during the first 90 days of his employment.

            Jimenez, who was one of Chaparro’s supervisors during his second employment, maintained that there were again problems with Chaparro’s job performance. Jimenez described Chaparro’s work as poor in all respects. Jimenez testified that in carrying out his maintenance duties, Chaparro was a danger to himself and to others. In fact, Jimenez went so far as to describe Chaparro’s work performance as “extremely dangerous.”

            Because of Chaparro’s alleged poor performance, Jimenez raised the issue of whether the company should again fire Chaparro. Jimenez and CAB’s president spoke early in August, and they decided Chaparro should again be suspended pursuant to the provisional contract. However, Chaparro had injured his hand and was receiving workmen’s compensation. Puerto Rican law forbade firing a worker while he or she was in that status. In addition, according to Jimenez, if the company waited until August 14 to act, Chaparro not only would be off workmen’s compensation, he would receive pay for a full work period because the pay period ended on August 14.

            On Friday, August 14, Chaparro reported for work at the sand processing facility. However, he had to leave work early to see a doctor about his hand. Jimenez wanted to speak with Chaparro in person, but because he had left the facility, Jimenez called Chaparro to tell him he was being suspended. Chaparro did not answer the telephone. On Sunday, August 16, Jimenez called again and left a message for Chaparro that he was suspended as of August 14.

            For his part, Chaparro agreed that he was hired in 2008 as an equipment operator and that he was suspended before he worked 90 days. He also agreed that he was rehired on June 1, 2009, and was suspended a second time on August 14. However, he maintained he was not fired because of his unsatisfactory and unsafe job performance; rather, he was let go because he cooperated, and was continuing to cooperate, with MSHA in its investigation of an earlier accident at the mine, one involving Chaparro.

            According to Chaparro, after he was hired in June, he was working at the sand screen when a bucket came down and pinched him between the funnel at the top of the screen and the bucket. MSHA inspector Isaac Villahermosa was assigned to investigate the accident. On August 14, Villahermosa went to the mine to interview Chaparro. Jimenez knew when and why Villahermosa was coming to the mine, but he did not try to prevent Chaparro from meeting with Villahermosa.

            Villahermosa arrived and began the interview with Chaparro. He spoke with Chaparro for no more than 30 minutes when Chaparro left to see his doctor about his hand. Before he left, Chaparro and Villahermosa agreed to continue the interview on Monday, August 17.

            According to Chaparro, on either Saturday, August 15, or Sunday, August 16, he was called by Jimenez and told that he was being suspended until further notice. On Monday, August 17, Chaparro returned to the facility, where he was told that Jimenez wanted to see him and that Villahermosa wanted to talk to him. It was agreed that he should speak with Jimenez first and that he should then meet with Villahermosa alone and in the company’s on-site office.

            At the meeting with Jimenez, Chaparro again was told that he was fired. Because he no longer worked for CAB, Chaparro and Villahermosa decided to continue their conversation at a fast food restaurant rather than at the mine office. They left the facility. Their resultant off-site

conversation lasted about two hours.

            According to Chaparro, around November 20, 2009, Villahermosa called and asked if Chaparro had filed a discrimination complaint with MSHA. Chaparro maintained this was the first time anyone had informed him of his right to do so. Shortly thereafter, on November 24, 2009, Chaparro filed a complaint with the agency, asserting he was discharged on August 14 so that he would not “talk about what went on at the sand plant.” See Application for Temporary Reinstatement, Exh. B at 6. The Secretary’s application for temporary reinstatement followed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

            Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides in pertinent part that the Secretary shall investigate a discrimination complaint, “and if the Secretary finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint.” The Commission has established a procedure for making this determination. Commission Rule 45(d), 29 C.F.R. § 2700.45(d) states:

                                    The scope of a hearing on an application for temporary

                                    reinstatement is limited to a determination as to whether

                                    the complaint was frivolously brought. The burden of

                                    proof is upon the Secretary to establish that the complaint

                                    was not frivolously brought. In support of [her]

                                    application for temporary reinstatement, the Secretary

                                    may limit [her] presentation to the testimony of the

                                    complainant. The respondent shall have an opportunity

                                    to examine any witness called by the Secretary and may

                                    present testimony and documentary evidence in support

                                    of its position that the complaint was not frivolously

                                    brought.

            As the above makes clear, and as I noted at the hearing, the scope of a temporary reinstatement hearing is narrow, being limited to a determination by the judge as to whether a miner’s complaint was frivolously brought. Sec’y of Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987); aff’d sub nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11^th Cir. 1990).

            In adopting section 105(c), Congress indicated that a complaint is not frivolously brought if it “appears to have merit.” S. Rep. No. 181, 95^th Cong. 1^st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources , 95^th Cong. 2^nd Sess., Legislative History of Federal Mine Safety and Health Act of 1977, at 6240625 (1978). The “not frivolously brought” standard has been equated to the “reasonable cause to believe” standard applied in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153, 157 (February 2000).

            While an application for temporary reinstatement need not prove a prima-facie case of discrimination, it is useful to review the elements of a discrimination claim in order to assess whether the evidence meets the non-frivolous test. Under section 105(c) of the Act, a complaining miner bears the burden of establishing: (1) that he or she engaged in protected activity, and (2) that the adverse action complained of was motivated in any part by that activity. Sec’y of Labor on behalf of Paula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev’d on other grounds sub nom.; Consolidation Coal Co. v. Marshall, 773 F.2d 1211 (3^rd. Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981); Sec’y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 1984); Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 1981), rev’d on other grounds sub nom.; Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).

            Here, the Secretary has established that Chaparro engaged in protected activity. Chaparro participated in MSHA’s investigation of allegedly unsafe conditions when he spoke with Villahermosa on August 14, 2009, regarding the accident at the facility. Speaking with an MSHA inspector about conditions at a facility where the complainant works is protected under the Act. Therefore, she established the first part of a prima facie case of discrimination. 

            The next step is to establish an unlawful motive for adverse action of which the miner complains. To do this, the Secretary had to show that Jimenez’s notification to Chaparro that he was laid off was at least in part designed to punish him for participation in MSHA’s investigation of conditions at CAB’s facility. The Commission has frequently acknowledged the difficulty of establishing “a motivational nexus between protected activity and that adverse action that is the subject of the complaint.” See, e.g., Sec’y on behalf of Baier v. Durango Gravel, 21 FMSHRC 953 (September 1999). Consequently, the Commission has held that, “(1) knowledge of protected activity; (2) hostility or animus towards the protected activity; and (3) coincidence in time between the protected activity and the adverse action” are all indications of discriminatory intent. Id. at 957.

            In seeking reinstatement for Chaparro, the Secretary does not need to establish a prima facie case of discrimination in order to establish the complaint was not frivolously brought. It is sufficient to show protected activity (something she did) and to show that a non-frivolous issue existed as to whether Chaparro’s termination was at least in part motivated by Chaparro’s discussion with Villahermosa on August 14.

            The Secretary has established that Chaparro’s supervisor knew of Chaparro’s protected activity and that Chaparro was laid off shortly after her engaged in the activity. The coincidence in time between the protected activity and Chaparro’s termination can be a basis on which to infer an illegal motive on CAB’s part. Durango Gravel, 21 FMSHRC at 957. Whether it is the actual motive or a part of the actual motive need not be decided at this point. By establishing that Chaparro engaged in protected activity, that Jimenez knew of the activity, and that Chaparro was terminated almost immediately thereafter, the Secretary has established that Chaparro’s complaint was “not frivolously brought.”

ORDER

            For these reasons, CAB IS ORDERED to reinstate Chaparro to the position he held on August 14, 2009, or to an equivalent position, at the same rate of pay and with the same hours and benefits to which he was then entitled. Chaparro’s reinstatement will be deemed effective as of January 14, 2010, the date this decision and the order would have been issued had the case been heard according to the Commission’s rules, and Chaparro will be entitled to back pay and benefits from that date until the date his reinstatement is effective.

            Chaparro’s reinstatement is not open-ended. It will end upon a final order on Chaparro’s complaint. 30 U.S.C. § 815 (c)(2). Therefore, it is incumbent on the Secretary to determine promptly whether or not she will file a complaint with the Commission under section 105(c)(2) of the Act based on Chaparro’s November 24, 2009, complaint to MSHA. Accordingly, the Secretary IS ORDERED to advise counsel for CAB and me of her decision by March 24, 2010, and, if a decision has not been made by that date, to advise us no later than April 24, 2010. If a decision is not made by April 24, I will entertain a motion to terminate the reinstatement for failure to diligently comply with the law. Surely, five months is adequate time within which to decide whether or not to go forward.

David F. Barbour

Administrative Law Judge

Distribution: (Certified Mail)

Marc G. Sheris, Esq., Allison L. Bowles, Esq., U.S. Department of Labor, Office of the Solicitor, 201 Varick Street, Room 983, New York, NY 10014

Rafael Sanchez Hernandez, Esq., P.O. Box 11672, San Juan, PR 00910-2772

Reynat Jimenez, Comunidad Agricola Bianchi, Inc., Carr. 429 KM 1.2 Bo. Borrero, Aguada, PR 00602

Jose A. Chaparro, HC-03, Box 32560, Aguada, PR 00602

/ej