<DOC>
[DOCID: f:k95-597d.wais]
IKERD-BANDY CO., d/b/a/ COCKRELL'S FORK MINING
March 6, 1996
KENT 95-597-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 6, 1996
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-597-D
on behalf of RONNIE GAY, :
Complainant : BARB CD 95-08
:
v. :
: Perry County No. 1 Strip
IKERD-BANDY CO., d/b/a : Mine ID 15-08038
COCKRELL'S FORK MINING :
Respondent :
DECISION
Appearances: Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for the Complainant;
William I. Althen, Esq. and Donna C. Kelly, Esq.,
Smith, Heenan and Althen, Washington, D.C. and
Charleston, West Virginia, respectively on behalf
of Respondent.
Before: Judge Melick
This case is before me upon the complaint by the Secretary
of Labor on behalf of Ronnie Gay under Section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.,
the "Act," alleging that Ikerd-Bandy Company, Inc. (Ikerd-Bandy)
violated Section 105(c)(1) of the Act when it did not hire Mr. Gay,
an applicant for employment, in early July 1994.[1] In a preliminary
motion to dismiss Ikerd-Bandy argues that Mr. Gay failed to meet the
filing requirements under Section 105(c)(2) of the Act in that he
"unjustifiably failed to file the charge of discrimination within (60)
days of the date of the alleged violation, and the delay results in
some specific prejudice to Respondent".
Motion to Dismiss
In relevant part, Section 105(c)(1) of the Act prohibits
discrimination against a miner or applicant for employment because
of his exercise of any statutory right afforded by the Act. n.1, supra.
If a miner or applicant for employment believes that he has suffered
discrimination in violation of the Act and wishes to invoke his
remedies under the Act, he must file his initial discrimination
complaint with the Secretary of Labor within 60 days after the alleged
violation in accordance with Section 105(c)(2) of the Act.[2] The
Commission has held that the purpose of the 60-day time limit is to
avoid stale claims, but that a miner's late filing may be excused on
the basis of "justifiable circumstances." Hollis v. Consolidation Coal
Company, 6 FMSHRC 21 (1984); Herman v. IMCO Services, 4 FMSHRC 2135 (1982).
In those decisions the Commission cited the Act's legislative history
relevant to the 60-day time limit:
While this time-limit is necessary to avoid
stale claims being brought, it should not
be construed strictly where the filing of
a complaint is delayed under justifiable
circumstances. Circumstances which could
warrant the extension of the time-limit would
include a case where the miner within the 60-day
period brings the complaint to the attention of
another agency or to his employer, or the miner
fails to meet the time-limit because he is mislead
as to or misunderstands his rights under the Act.
(citation omitted).
The Commission noted accordingly that timeliness questions
must be resolved on a case-by-case basis, taking into account the
unique circumstances of each situation.
It is undisputed in this case that the alleged act of discrimination
commenced on July 2, 1994, when Ikerd-Bandy did not hire Gay and that
Gay did not file his complaint with the Secretary until December 13, 1994.
His signed complaint is dated December 14, 1994.
Gay testified at hearing as justification for the delay that
he was unaware of his rights to file a complaint of discrimination
under the Act until a coincidental meeting with Federal Mine Inspector
Dash on December 12, 1994. Dash was purportedly investigating an
unrelated matter at the subject mine in which rock from an explosives
blast struck nearby homes. A conversation ensued with Gay in which Gay
related his experience at the Whitaker mine operation (predecessor to
Ikerd-Bandy) concerning safety reports he prepared regarding the absence
of a guard for the cooling fan on his bulldozer. Dash purportedly advised
Gay of his right to file a complaint with the Mine Safety and Health
Administration (MSHA) and the next day Gay filed the complaint at issue
with the Hazard, Kentucky, MSHA office.
Gay's testimony on this issue is not disputed and, indeed,
provides justification for the relatively brief delay in the filing
of his complaint. Accordingly Gay's late filing may be excused.
The Merits
In his amended complaint filed at hearing the Secretary alleges
in relevant part as follows:
The Complainant, Ronnie Gay, was employed as a bull dozer
operator by Whitaker Coal Company ("Whitaker") until June 30, 1995
and was a "miner" within the meaning of Section 3(g) of the Act
[30 U.S.C. 802(g)].
Between June 15 and June 27, 1994 Ronnie Gay communicated
safety complaints to Whitaker through its agent, Superintendent
Carson Sizemore ("Sizemore").
On or about June 20, 1994 Sizemore, as Whitaker's superintendent
ordered Ronnie Gay, through Whitaker's foreman Raymond Walker, to
stop communicating his safety complaints to Whitaker.
Ronnie Gay continued to communicate safety complaints to Whitaker.
On June 30, 1994 all Whitaker miners, including Ronnie Gay, were
laid off by Whitaker.
As of July 1, 1994 mine operations were purchased by respondent,
Ikerd-Bandy Co., Inc.
Ikerd-Bandy Co., Inc. used the same equipment, same employees,
and same methods of mining to extract coal from the same coal seam
mined by Whitaker. Ikerd-Bandy Co., Inc. was a successor operator
to Whitaker.
Ikerd-Bandy Co., Inc. hired Sizemore as its superintendent as
of July 1, 1994.
On July 2-3, 1994 all Whitaker miners who had filed applications
for work with Ikerd-Bandy were interviewed by Sizemore and another
representative of Ikerd-Bandy Co., Inc.
On July 1, 1994 Ronnie Gay filed an application for work with
Ikerd-Bandy and on or about July 2, 1994 was interviewed by Sizemore
and another agent of Ikerd-Bandy. Ronnie Gay was an applicant for
employment within the meaning of the Act.
Ronnie Gay was discriminated against on or about July 2, 1994,
when he was denied employment by Ikerd-Bandy because, prior to this
date, he had communicated safety complaints to Ikerd-Bandy's agent
Sizemore while both Ronnie Gay and Sizemore were employed by Ikerd-Bandy's
predecessor, Whitaker. The safety complaints related to the condition
of the bulldozer Ronnie Gay operated for Ikerd-Bandy's predecessor,
Whitaker.
The Secretary is seeking, inter alia, an order directing Ikerd-
Bandy to pay "damages in an amount equal to full back pay, all employment
benefits, all medical and hospital expenses and any and all other
damages suffered by Ronnie Gay as a result of the discrimination from
the date of the discrimination until the date Gay was reinstated to full
employment status with Ikerd-Bandy, i.e. until June 23, 1995, and a
civil penalty of $6,000."
This Commission has long held that a miner or applicant for
employment seeking to establish a prima facie case of discrimination
under section 105(c) of the Act bears the burden of persuasion that
he engaged in protected activity and that the adverse action complained
of was motivated in any part by that activity. Secretary on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (1980),
rev'd on grounds, sub nom. Consolidation Coal Co. V. Marshall, 663 F.2d
1211 (3rd Cir. 1981); and Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (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 the protected
activity. If an operator cannot rebut the prima facie case in this manner,
it may nevertheless defend affirmatively by proving that it would have
taken the adverse action in any event on the basis of the miner's
unprotected activity alone. Pasula, supra; Robinette, supra. See also
Eastern Assoc., Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987);
Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir, 1984);
Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving
the Commission's Pasula-Robinette test). Cf. NLRB v. Transportation
Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical
test under National Labor Relations Act).
There is no dispute in this case that Gay filed numerous safety
complaints during his four years while working for Whitaker, including
as many as 200 pre-shift driver's reports citing equipment defects
and the more recent pre-shift reports citing the absence of a guard
over the radiator fan on his bulldozer (Joint Exhibit No. 1). It is
not disputed that Gay continued to file such reports through his last
day of work for Whitaker on June 30, 1994, when Whitaker closed down
operations at the subject mine and released all of its workforce.
Considering this undisputed evidence it is clear that Gay had in fact
thereby engaged in protected activity.
The second element of a prima facie case of discrimination is a
showing that the adverse action (in this case the decision of Ikerd-
Bandy not to hire Gay on or about July 2, 1994) was motivated in any
part by the protected activity.[3] As this Commission noted in
Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), rev'd on other
grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C.
Cir. 1983), "[d]irect evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect." The
Commission considered in that case the following circumstantial
indicia of discriminatory intent: knowledge of protected activity;
hostility towards protected activity; coincidence of time between the
protected activity and the adverse action; and disparate treatment.
In examining these indicia the Commission noted that the operator's
knowledge of the miner's protected activity is "probably the single
most important aspect of the circumstantial case".
In this regard it is undisputed that former Whitaker Mine
Superintendent Carson Sizemore was Gay's supervisor while Gay worked
at Whitaker as a bulldozer operator until Whitaker ceased operations
on June 30, 1994. Gay testified that he began filing pre-shift
driver's reports on the missing fan guard as early as April or May 1994,
and continued through June 30, 1994. According to Whitaker foreman
Raymond Walker, it was the practice for the pre-shift reports to be
completed by the equipment operators before each shift to notify
management of mechanical and/or safety defects. Walker would collect
these reports from the operators on his shift and turn them over to
Robert Baker in the mine office. According to Walker, Baker then made
a list of the reported problems and provided that list to Sizemore.
Gay testified that although Sizemore had never talked to him
directly about these reports, Raymond Walker, who was his foreman,
told him on June 7, 1994, that Sizemore did not want him to continue
reporting the absent bulldozer fan guard. Gay testified that he told
Walker that he would nevertheless continue to write the reports.
In his testimony Walker confirmed that, following complaints
to Sizemore about the missing fan guard on Gay's bulldozer, Sizemore
told Walker to tell Gay not to report this problem any more. Walker
confirmed that he reported Sizemore's response to Gay. This
corroborated and credible testimony may reasonably be considered
evidence not only of knowledge by Sizemore of Gay's protected activity
but also of animus toward that activity. Sizemore's contrary testimony
is also accordingly afforded but little weight. The Secretary alleges
that Sizemore, as successor Ikerd-Bandy's new superintendent, thereafter
retaliated against Gay when he presumably rejected Gay's July 1994,
application for employment with Ikerd-Bandy.
The record shows that on July 1, 1994, Whitaker sold substantially
all of the assets of the subject mine to Ikerd-Bandy, an unrelated
business entity. According to William Rich, Ikerd-Bandy's president,
two or three weeks prior to that date he told the Whitaker miners at
meetings at the mine that he intended to hire from among the miners
who were already working and did not intend to bring miners in from
other jobs. While there is some disagreement over the precise words
used by Rich, even one of the Secretary's own witnesses, Daryl Baker,
agrees that Rich did not say he would hire all of Whitaker's employees.
I, therefore, find Rich's testimony to be the most credible. Indeed,
Rich projected that of Whitaker's work force of about 155 employees
(110 of whom worked on the mine site) he planned on retaining only 65.
Rich nevertheless invited all Whitaker miners to apply for jobs with
Ikerd-Bandy and more than one hundred Whitaker miners, including Gay,
did apply.
As noted, Ikerd-Bandy hired Whitaker's former superintendent,
Sizemore, on July 1, 1994 to help with the transition. Around July 2-3,
1994, Ikerd-Bandy's operations manager, Stephen Huey, and Sizemore
interviewed every Whitaker miner who applied for work with Ikerd-Bandy,
including Gay. Within a week of Whitaker's closing, Ikerd-Bandy
commenced mining operations at the same site but with only about sixty-
five miners, not including Gay.
Indeed, while some circumstantial evidence, including knowledge
of protected activity and timing, may suggest an illegal motivation
for not hiring Gay in July 1994, I find that such evidence is
neutralized by other credible evidence, the absence of credible evidence
of disparate treatment, and, on balance that the Secretary has failed to
sustain her burden of proving such unlawful motivation.[4] I have
considered, in this regard, the long history of Gay and co-workers,
Durscle Stephens and Prentiss Baker, for filing safety complaints while
employed by Whitaker and working for Sizemore but without evidence of
previous retaliation. Indeed, several of these former Whitaker employees
with long histories of filing safety complaints were offered jobs and
hired by Ikerd-Bandy. I also find credible the testimony of Ikerd-Bandy's
president, William Rich, as to the hiring procedures followed in July 1994,
based upon unprotected rationale (Tr. 229-235), and that he planned to and
did retain only 65 of the 155-man workforce maintained by his predecessor,
and the evidence that Sizemore had no input as to Ronnie Gay (Tr. 204, 217).
It is also noteworthy that Gay himself admitted that he has no
knowledge as to how Ikerd-Bandy chose its employees and was only
speculating that he was not hired because he had filed pre-shift reports.
Finally, there is no credible evidence of disparate treatment of Gay
based upon his protected activity and, indeed, there is no credible
evidence that anyone less qualified than Gay was hired by Ikerd-Bandy
before Gay himself was hired.
It should be noted that even assuming, arguendo, the Secretary
had established a prima facie case of discrimination, the above
evidence would nevertheless establish an affirmative defense that
Ikerd-Bandy would not have hired Gay in July 1994, for unprotected
reasons alone.
Under the circumstances this discrimination proceeding must
be dismissed.
ORDER
Discrimination Docket No. KENT 95-597-D is hereby dismissed.
Gary Melick
Administrative Law Judge
703-756-6261
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Dept. of Labor,
2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
William I. Althen, Smith, Heenan & Althen, Suite 400,
1110 Vermont Ave., N.W., Washington, D.C. 20005
(Certified Mail)
Donna C. Kelly, Esq., Smith, Heenan & Althen, One Valley Square,
Suite 1380, P.O. Box 2549, Charleston, WV 25329-2549
(Certified Mail)
\jf
**FOOTNOTES**
[1]: Section 105(c)(1) of the Act provides as follows:
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
the miners at the cola 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 the 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
proceedings, 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.
[2]: After investigation of the miner's complaint, the
Secretary is required to file a discrimination complaint
with this Commission on behalf of the miner or applicant for
employment if the Secretary determines that the Act was
violated. If the Secretary determines that the Act was not
violated, he is required to so inform the individual
complainant and that person may then file his own complaint
with the Commission under Section 105(c)(3) of the Act.
[3]: Gay was subsequently hired by Ikerd-Bandy and began
work on June 23, 1995.
[4]: I have also considered the subsequent purported
statement on January 3, 1995, of Huey that they would not
hire Gay because he filed the instant proceedings. While
this statement, if made, would clearly show animus toward
Gay's protected activity of filing the instant discrimination
case and could very well provide grounds for an independent
cause of action, I do not, in any event, find this evidence
to be sufficiently connected to the claim in this case to
have any decisive bearing.