<DOC>
[DOCID: f:c96-28dm.wais]

 
COBRE MINING COMPANY
February 6, 1997
CENT 96-28-DM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        February 6, 1997

PATRICIA ANN VILLINES,          :     DISCRIMINATION PROCEEDING
                Complainant     :
                                :
                    v.          :     Docket No. CENT 96-28-DM
                                :
                                :
COBRE MINING COMPANY,           :     SC MD 95-05
                Respondent      :
                                :     Cobre Mine


                            DECISION

Appearances:  Robert F. Turner,
              Esq., Deming, New Mexico, for
              the Complainant;
              Patrick M. Shay, Esq., Rodey, Dickason, Sloan, Akin
              & Robb, P.A., Albuquerque, New Mexico, for
              Respondent.

Before:  Judge Maurer

     This case is before me upon a complaint of discrimination
brought by Patricia Ann Villines against the Cobre Mining Company
(Cobre) under section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 815(c).

     The case was heard on November 6, 1996, in Truth or
Consequences, New Mexico.  For the reasons set forth below, I
find that Ms. Villines was not terminated for engaging in
activities protected under the Mine Act and, therefore, was not
discriminated against by Cobre, in violation of section 105(c).

     The Complainant was hired by Cobre on March 5, 1993 and
fired on July 13, 1995.  At the time of her termination, she was
the safety office clerk.

     She claims to have had no employment-related problems until
May 19, 1995, shortly after her immediate supervisor, Mike Best,
was fired.

     On May 19, 1995, she received a Letter of Counseling from
Mr. Trujillo, who was the human resources manager at Cobre and
her immediate supervisor after Best's termination.  This Letter
of Counseling is contained in the record as Cobre Exhibit A and
it recites several instances of nonfeasance and malfeasance by
Ms. Villines.  Basically, Mr. Trujillo was upset with the
operation of the safety department generally and Ms. Villines'
work particularly.

     The testimony from Mr. Trujillo and Ms. Dinwiddie (the
office manager) at the hearing was all to the effect that
Ms. Villines had to be constantly reminded to perform the duties
of her job, and work that she did perform, was poorly done.  They
also testified concerning Ms. Villines' lack of skills in typing,
filing, and administrative tasks generally.  I note that this was
the first and only clerical type job she has ever held.

     Ms. Villines was given several opportunities to upgrade her
skills, but she reportedly failed to take advantage of them.
Specifically, for example, the office manager offered to take
time to teach her the computer skills she needed to better
perform her job, but she did not show up for the training.

     The evidence is uncontested that the training department
records were in a mess at the time Mike Best was fired, and
Mr. Trujillo took over as the complainant's supervisor.  The
feeling was that this was the complainant's job and that Mr. Best
had simply let her slide rather than insisting that she maintain
these certification records in a proper manner.

     Mr. Trujillo attempted to impress upon the complainant the
importance of maintaining proper records within the safety
department and specifically tasked her with putting these records
in order.  However, despite his more or less constant urging, she
was not getting the work accomplished.  Rather, she would find
other work to do or other ways to occupy her time.  Meanwhile,
the federal and state mine inspectors were putting pressure on
the mine management to get these records into shape for review.

     Finally, after about a month of little or no progress and
with the records still in extremely bad shape, the company sought
the assistance of a technical specialist from the New Mexico
Bureau of Mine Inspection to train the complainant along with
Ms. Dinwiddie, the office manager, and Ms. Webb, the
receptionist, to properly fill out and file the training records.
On July 12, 1995, at approximately 8:00 a.m., the state-provided
training commenced.  At about 10:30 a.m., Mr. Trujillo was
advised that Ms. Villines was not cooperating with the trainer.
She was coming and going in and out of the room, talking on the
phone, and generally just not paying any attention to the
training.  This apparently was the last straw.  The next day,
July 13, 1995, Ms. Villines' employment was terminated.

     A complainant alleging discrimination under the Mine Act
establishes a prima facie case of prohibited discrimination by
proving that she 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, 2797-800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-
18 (April 1981).  An 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.
Pasula, 2 FMSHRC at 2799-800.  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.; Robinette,
3 FMSHRC at 817-18; see also Eastern Associated Coal Corp. v.
FMSHRC, 813 F.2d 639, 642, (4th Cir. 1987).

     The complainant's only alleged protected activity is
cooperating with MSHA by talking with an investigator concerning
the termination of her former boss, Mike Best.  However, her
statement was not favorable to Mr. Best.  Her understanding of
why he was fired was because he was not doing his job and that's
basically what she told the MSHA investigator.  She agrees the
safety office was a mess at the time Mike Best was fired.
Furthermore, it was Mr. Trujillo, her new supervisor that
requested that the MSHA investigator interview her.  It was the
MSHA investigator who told her that.   Mr. Trujillo corroborates
that portion of her testimony as well.

     It follows logically then that if the company suggested that
she be interviewed by MSHA concerning Best's case, and she in
fact supported their firing of Best with MSHA during that
interview, they would be unlikely to take adverse action against
her for cooperating with MSHA (at their request).

     Simply put, there is no evidence to support a prima facie
case of discrimination by Cobre against the complainant, that is,
adverse action causally related to protected activity.  The
complainant's own lack of productivity provided ample basis for
discharging her.

                              ORDER

     Accordingly, it is ORDERED that the complaint filed by
Patricia Ann Villines against the Cobre Mining Company for a
violation of section 105(c) of the Mine Act is DISMISSED.




                                   Roy J. Maurer
                                   Administrative Law Judge



Distribution:

Robert F. Turner, Esq., 101 South Copper, Deming, NM 88030
(Certified Mail)

Patrick M. Shay, Esq., Rodey, Dickason, Sloan, Akin & Robb,
P.A., P. O. Box 1888, Albuquerque, NM 87103 (Certified Mail)

                                   dcp