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[DOCID: f:k97-256d.wais]
LEECO, INCORPORATED
July 8, 1997
KENT 97-256-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 8, 1997
SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of RONALD MAXEY, : Docket No. KENT 97-256-D
Complainant : BARB CD 97-07
v. :
: Mine No. 68
LEECO, INCORPORATED, : Mine ID No. 15-17497
Respondent :
DECISION
Appearances: MaryBeth Bernui, Esq., Office of the
Solicitor, U.S. Dept. of Labor, Nashville,
Tennessee, on behalf of the Secretary of
Labor;
Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research and Defense Fund of Kentucky,
Inc., Lexington, Kentucky,
on behalf of Ronald Maxey;
Marco Rajkovich, Jr., Esq. and Julie O. McClellan,
Esq., Wyatt, Tarrant & Combs, Lexington, Kentucky,
on behalf of Leeco, Incorporated.
Before: Judge Melick
This case is before me upon the application for temporary
reinstatement filed by the Secretary of Labor, pursuant to
Section 105(c), of the Federal Mine Safety Health Act of 1997, 30
U.S.C. � 801 et. seq., the "Act", and Commission Rule 45, 29
C.F.R. Section 2700.45. The Secretary seeks an order temporarily
reinstating Ronald Maxey to his former position as railrunner
operator for Respondent, Leeco, Incorporated (Leeco), at its No.
68 Mine pending a final hearing and disposition on the merits of
the related discrimination proceeding (Docket No. KENT 97-257-D).
Under Section 105(c)(2) of the Act, the Secretary is
required to file an application for the temporary reinstatement
of a miner when he finds that the underlying discrimination
complaint has not been "frivolously brought." Under Commission
Rule 45(d), 29 C.F.R. Section 2700.45(d), the issues in a
temporary reinstatement hearing are limited to whether the
miner's complaint was frivolously brought. The Secretary has the
burden of proving that the complaint was not frivolous. Under
this Rule, the Respondent also had the opportunity to cross-
examine any witnesses called by the Secretary and may present
testimony and documentary evidence in support of its position
that the complaint was frivolously brought. By providing for an
evidentiary hearing comporting with due process standards at
which witnesses may testify under oath and documents may be
presented, it may be presumed that the Secretary's decision
regarding temporary reinstatement must be viewed at the
completion of this evidentiary hearing.
The Eleventh Circuit Court of Appeals in Jim Walter
Resources, Inc., v. FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990),
concluded that "not frivolously brought" is indistinguishable
from the "reasonable cause to believe" standard under the
whistleblower provisions of the Surface Transportation Assistance
Act. In addition, that Court equated "reasonable cause to
believe" with a criteria of "not insubstantial or frivolous" and
"not clearly without merit." 920 F.2d 738, at 747.
In her application for temporary reinstatement, the
Secretary alleges as follows:
On February 11, 1997, Maxey was discharged
from his employment with Respondent, Leeco, Inc.
This discharge occurred as a result of safety
complaints made by Maxey to representatives of the
Mine Safety and Health Administration on February
5, 1997, with regard to unsafe conditions at
Respondent's No. 68 Mine. These conditions
included no brakes or lights on the railrunners
and one man trip, railrunners sticking on point,
no track communication, sanders not functioning on
railrunners due to water on the track, no jacks or
bars on the railrunners, overcrowded mantrips,
switches installed incorrectly on the track and
railrunners colliding with each other because of
no lights or brakes. As a result of these
complaints, an inspection was conducted by several
MSHA personnel on February 7 and 9, 1997, and
several citations were issued with regard to the
unsafe conditions alleged by Mr. Maxey. When Mr.
Maxey returned to work on February 11, 1997, he
was fired.
At expedited hearings held July 2, 1997, in Manchester,
Kentucky, senior MSHA Special Investigator, Ronnie Brock,
testified that on February 5, 1997, he talked to Maxey by
telephone. Maxey was then in another MSHA office with MSHA
Special Investigator Maurice Mullins. Brock testified that Maxey
claimed that he had been suspended because he made safety
complaints to the operator. Brock then explained to Maxey his
right to file a "105(c)" complaint. Maxey declined, stating that
he would wait. Brock told Maxey that he was nevertheless
obligated to send an inspector to the mine based upon the
violations Maxey reported and Maxey pleaded with Brock not to
send an inspector fearing he would be fired. Brock documented
the conversation and told Mullins to obtain the details of the
violations from Maxey.
Don Baker, a regular MSHA inspector at the Leeco No. 68
Mine, who was familiar with Maxey, received a telephone call from
Maxey on the evening of February 4, in which Maxey reported that
he was having trouble with the company and needed to talk. Baker
met with Maxey the next day at the MSHA office and, based on what
he said, referred Maxey to Special Investigator Maurice Mullins,
who was also then present in the MSHA office. On February 6,
Baker's supervisor gave him a checklist of items to be inspected
at the No. 68 Mine. A copy of this list, based on Maxey's
complaints, is in evidence as Government Exhibit No. 5. Baker
was told to maintain confidentiality.
Early in the morning of February 7, Baker and MSHA engineer
Scott Whitaker proceeded to the No. 68 Mine to conduct the
inspection. Meeting initially with second shift mine foreman
Ricky Campbell, Baker stated that he was continuing his regular
inspection and would be looking at, among other things, the
escapeway. Baker did not immediately inspect the rail equipment,
the subject of Maxey's complaints, but proceeded first to the
escapeway. He then proceeded to the track entry to deal with the
issues in Maxey's complaint. As a result of his inspection on
February 7, Baker issued one citation and four notices-to-
provide-safeguards relating to the rail equipment. (Government
Exhibits No. 6 and 7). Baker had never previously issued this
many safeguards at one time and, indeed, had only once before
issued a safeguard at the subject mine.
Baker returned to the mine on February 9, and issued two
additional citations for violations on the rail equipment. Baker
testified that he did not give Leeco the list of safety problems
furnished by Maxey nor did he tell anyone that he was present
because of Maxey's complaint.
Maxey testified that he had worked for Leeco for sixteen
years prior to his suspension and had been a railrunner for the
previous ten years. He had been railrunner at the subject mine
for one and one half years. He explained that it is an
underground mine with three sections. His job was to haul
supplies to the head drives and to the working sections. He
worked the
6:00 a.m. to 3:00 p.m. day shift, primarily in the 003 Section.
At the time of his discharge,
Vic Lewis was his supervisor.
According to Maxey, on February 4, 1997, he arrived at work
around 6:00 a.m. and met with Lewis. Maxey acknowledged that on
the previous day he was supposed to have taken "eight-by-eight's"
to the section to be used for track support. Maxey reportedly
responded that he had not done so, claiming he had not had time
because he and Lewis had built a cement-block wall the day
before. According to Maxey, Lewis then responded, "then you need
to go to 004 Section so you'll know what coal mining is about"
(Tr. 75-76). Maxey apparently refused to go to the section and
Lewis then told him to report to mine superintendents Amon Tracey
or Everett Kelley. When Tracey later arrived, Maxey reported
that Lewis had sent him to meet with him. Tracey conferred with
Lewis and returned saying, "it sounds like to me that you quit,"
and told Maxey to get off mine property (Tr. 78).
Maxey denied to Lewis that he quit but, as he was leaving
the mine property he ran into Talmadge Mosley, Leeco's President.
Mosley intervened with Tracey and, 20 or 30 minutes later, Maxey
was called back and told that, rather than be fired he would only
be suspended for five days. According to Maxey, Tracey then told
him to return on February 11, to operate the "lo-lo," maintaining
cables and shoveling loose coal at the belt. Tracey then asked
Maxey if he had any written warnings and Maxey purportedly
responded that he "didn't think so" (Tr. 81).
That same day Maxey called MSHA Inspector Baker and followed
up with a visit the next day. He reportedly told Baker that he
was suspended because of the complaints he made to mine officials
regarding the condition of the hoist and the railrunners. He
subsequently met with Special Investigator Mullins and provided
him with a checklist of items (Government Exhibit No. 5).
Maxey thereafter returned to work on February 11, at about
5:40 a.m. No one from Leeco had contacted him after his February
4 suspension. As he was dressing for work, Lewis told him to see
Tracey. According to Maxey, Tracey told him that, after
reviewing his records and in light of his refusal to work he had
decided to terminate him. Maxey maintains that he was shown
three written warnings, one each in 1984, 1985 and 1987, and that
he told Tracey that these were ten years old. Tracey apparently
did not respond. Maxey testified that on February 4th, he did
not recall that he had these earlier warnings, although he did
remember when shown them on February 11.
This Commission has long held that a miner seeking to
establish a prima facie case of discrimination on the merits
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 (October 1980) rev'd on grounds, sub nom.
Consolidation Coal Co. v. Marshall, 663 F2d 1211 (3rd Cir.1981);
and Secretary on behalf of Robinette v. United Coal Co., 3 FMSHRC
803, 817-18 (April 1981). At a trial on the merits, 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 at a trial on the merits 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).
It is undisputed in this case that Maxey engaged in
protected activity by reporting safety complaints to MSHA on
February 4 and 5, 1997, and that he suffered adverse action
(discharge) on February 11, 1997. As noted, the second element
of a prima facie case of discrimination is a showing that the
adverse action was motivated in any part by the protected
activity. As this Commission observed in 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),
"[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."
The most striking evidence of unlawful motivation in this
case is the close proximity
in time between Maxey's safety complaints to MSHA on February 4
and 5, 1997, (followed by the inspections on February 7 and 9,
1997, during which an MSHA inspector issued Leeco four safeguard
notices and three citations pertaining to rail equipment) and the
subsequent termination of Maxey upon his return to work on
February 11, 1997. It may reasonably be inferred in this case
that Mine Superintendent Amon Tracey had good reason to believe
that Maxey was the cause of the MSHA investigation resulting in
the issuance of the safeguards and citations. Maxey was the
supplyman operating rail equipment in the cited track area, he
was suspended on February 4, and the inspections on February 7
and 9, were focused upon the rail equipment operating in the same
area. In addition, the number of safeguards issued by the
inspector was unusually high. Tracey himself acknowledged,
moreover, that 80 percent of the time he would know about
citations the day following their issuance and he did not deny
that he had knowledge of the subject citations and safeguards
prior to Maxey's dismissal (Tr. 289). It is also reasonable to
infer that Tracey would have been hostile toward Maxey if he had
believed Maxey initiated the MSHA inspections. Leeco was liable
for civil penalties for the citations and it may be inferred that
compliance with the four additional safeguards would have
resulted in additional expense and detraction from production.
Under the circumstances, I have no difficulty in concluding
that not only has the Secretary established that the complaint of
Ronald Maxey in this case was not frivolously brought, but that
she has established a prima facie case of discrimination.
Whether that prima facie case can be rebutted or whether the
Respondent can affirmatively defend within the Pasula-Robinette
framework are questions to be deferred for trial on the merits of
the discrimination case.
ORDER
The Secretary's application for temporary reinstatement of
Ronald Maxey IS GRANTED and it is accordingly ORDERED that Leeco,
Incorporated immediately reinstate Mr. Maxey to the position he
held immediately prior to his discharge or to a similar position
at the same rate of pay and with the same or equivalent duties
assigned to him.
Gary Melick
Administrative Law Judge
Distribution:
Mary Beth Bernui, Esq., Office
of the Solicitor, U.S. Dept.
of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville,
TN 37215 (Certified Mail)
Tony Oppegard, Esq., Mine
Safety Project of the ARDF of
Kentucky, Inc., 630 Maxwelton
Court, Lexington, KY 40508
(Certified Mail)
Marco M. Rajkovich, Jr., Esq.
and Julie O. McClellan, Esq.,
Wyatt, Tarrant & Combs,
1700 Lexington Financial
Center, 250 West Main Street,
Lexington, KY 40507 (Certified
Mail)
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