<DOC>
[DOCID: f:k97-257d.wais]
LEECO, INCORPORATED
January 15, 1998
KENT 97-257-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 15, 1998
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. KENT 97-257-D
on behalf of RONALD MAXEY, : BARB CD 97-07
Complainant :
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 Complaint filed by the
Secretary of Labor, pursuant to Section 105(c)(2) of the Federal
Mine Safety Health Act of 1997, 30 U.S.C. � 801 et. seq., the
"Act," alleging that Ronald Maxey was discharged by Leeco,
Incorporated (Leeco), in violation of Section 105(c)(1) of the
Act.[1]
In her Complaint, the Secretary alleges as follows:
On or about February 11, 1997, Maxey was
discharged by respondent because he had
exercised rights under the Act by
complaining to representatives of the Mine
Safety and Health Administration about unsafe
working conditions at the No. 68 mine. These
conditions included no brakes or lights on
the railrunners and the "white tub" mantrip,
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.
At hearings on the Secretary's Application for Temporary
Reinstatement, held July 2, 1997, Senior Special
Investigator for the Mine Safety and Health Administration
(MSHA) Ronnie Brock, testified that on February 5, 1997, he
talked to Maxey by telephone.[2] Maxey was then in another
MSHA office with Special Investigator Maurice Mullins.
Brock testified that Maxey claimed 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 Maxey's allegations of
safety hazards. Brock documented the conversation and told
Mullins to obtain details of the allegations 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. 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 referred Maxey to Special Investigator Mullins, who was
also then present in the office. On February 6, Baker's
supervisor gave him a checklist of items to be inspected at
the No. 68 Mine (Gov't Exh. 5).
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. (Gov't Exh. 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
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 a 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 told Lewis 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. I. 76). Maxey refused to go to the section and Lewis
then told him to report to mine superintendents Amon Tracey
or Everett Kelly. 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. I.
77).
Maxey denied to Tracey 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. I. 81).
That same day Maxey called MSHA Inspector Baker and followed
up with a visit to the MSHA office the next day. He
reportedly told Baker that he was suspended because of
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 (Gov't Exh. 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 purportedly did not respond.
Maxey testified that, on February 4th, he did not recall
that he had received 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 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). 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).
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 subsequently suffered
adverse action (discharge). 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) "[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."
Leeco maintains in this case that it had no knowledge of
Maxey's protected activity at the time of his discharge and,
therefore, it was not, and could not have been, motivated in
any part by such protected activity. More specifically,
Leeco maintains that Mine Superintendent Amon Tracey made
the decision to discharge Maxey on February 6, 1997, when
Tracey purportedly confirmed that Maxey had six prior
warnings in his personnel file and therefore believed that
Maxey had lied to him on February 5 in denying that he had
any prior warnings. If Tracey did in fact make the decision
to discharge Maxey on February 6, 1997, then it is apparent
that the discharge was not motivated by Maxey's protected
activity and that the discharge was therefore not in
violation of the Act.[3] The Complainant maintains, on the
other hand, that Tracey did not in fact decide to discharge
him on February 6, but rather made that decision only after
the MSHA inspections on February 7 and 9. The Complainant
argues that it may reasonably be inferred from the
circumstantial evidence that Tracey knew of these
inspections, that he believed that Maxey had triggered such
inspections and that Tracey did not actually decide to
discharge Maxey until sometime after those inspections.
Leeco's case depends on the testimony of its Superintendent,
Amon Tracey. Tracey testified that he first learned of a
problem with Maxey around 7:30 on the morning of February
4th when he called mine foreman Victor Lewis. Lewis, who
was Maxey's supervisor, reported that Maxey had failed to
take some "eight by eight's" into the mine and that he was
going to send Maxey to the 4 Section in the belief that he
needed closer supervision. When Tracey later arrived at the
mine around 9 a.m., Maxey reported to him that there had
been a mix-up and that he was told by Vic Lewis to see him.
Tracey then conferred with Lewis who reported that Maxey had
twice refused to go to the 4 Section. Tracey concluded that
Maxey had quit by refusing a direct work order. Tracey then
asked Maxey if he had any other disciplinary slips and Maxey
said, "No." Tracey directed Maxey to leave mine property on
the basis of his belief that Maxey had quit or had been
fired for disobeying a direct work order.
At that time Leeco's President, Talmadge Mosley, pulled up
and conversed with Maxey. A few minutes later, Mosley asked
Tracey about Maxey's status and intervened on his behalf.
Mosley indicated that Maxey he had been with the company a
long time and suggested that the punishment may have been
too harsh. He asked Tracey to reconsider. Tracey then
recalled Maxey and gave him a five day suspension. Maxey
was to return on February 11th, reporting to the 4 Section
as a belt man or scoop man.
According to Tracey, that evening or the following day,
February 5, he told mine foremen Everett Kelly and Victor
Lewis about Maxey's problem and both reported having issued
Maxey prior verbal warnings. Based on this information,
Tracey called the company personnel office located in
London, Kentucky, to check on Maxey's past discipline.
According to Tracey, Maxey's prior warnings were read over
the phone by "personnel man" A.B. Foreman. Tracey testified
that Fred Shannon, Leeco's safety director, brought the
disciplinary slips from the London office on February 6, and
after looking them over, commented to Shannon that he was
going to fire him because he lied (Tr. I. 22). Tracey
maintains that he was then unaware of Maxey's visit to the
MSHA offices.
Tracey maintains that he thereafter talked to Talmadge
Mosley on the telephone about Maxey's prior disciplinary
slips and received Mosley's approval to fire Maxey. Tracey
maintained that he did not then call Maxey because he did
not have his correct telephone number and did not "feel like
going up and knocking on the man's door" even though he
lived only three quarters of a mile away (Tr. I. 274). When
Maxey returned to work on February 11th, Tracey showed him
the six disciplinary slips, told him that he had lied and
discharged him. These copies had been sent from the London
office by facsimile on February 10th. Tracey maintains that
he did not complete the discharge notice until February
11th, although he had previously decided to discharge him on
February 6th. Tracey testified that he told Vic Lewis,
Talmadge Mosley, Fred Shannon and possibly Everett Kelly,
prior to February 11th, that he was going to fire Maxey.
Fred Shannon testified that Maxey told him on February 4th
that he "messed up bad, thought that he'd fooled around and
lost his job" (Tr. I. 304). Maxey admitted to Shannon that
he had refused to report to the No. 4 Section as he was
told. Shannon claims that he became aware of Maxey's six
warning slips on February 5. He purportedly picked up the
original warning slips that same evening from the company's
London office and delivered them to Tracey the following
day, Thursday, February 6. According to Shannon, Tracey
looked at the warning slips in his presence and then stated
that he had decided to terminate Maxey. Shannon explained
that the warning notices he hand-delivered to Tracey on
February 6, were returned to Maxey's personnel file and that
copies of the notices were subsequently faxed on February
10, upon Tracey's request.
At hearings on the merits, Shannon explained that on
February 5th, he overheard the telephone conversation
between A.B. Foreman and Tracey. From what he was able to
hear, Tracey was discussing the warning slips and said that
he needed copies. "A.B." apparently then put them in an
envelope for Shannon to pick up, and Shannon did in fact
pick them up at the London office that evening. On February
6, the following morning, Shannon brought the envelope to
Tracey's office and it was opened in his presence. Tracey
said that there were six warning slips and that Maxey had
lied to him. Later that day Shannon returned the slips to
Maxey's file in the London office.
On Monday, February 10, the next time he talked to Tracey,
Tracey purportedly asked to see the Maxey file again.
Shannon thought that he had told Tracey the file was back in
London, but said that he would have the reports faxed to
him. Shannon explained that the disciplinary files for
company employees are kept in the personnel files maintained
at the London offices. Shannon was present when the
warning slips were faxed to Tracey in his office.
Shannon testified that he was not aware on February 7th,
that inspector Baker was at the mine. He subsequently
learned either on Saturday, February 8th, or the following
Monday that Baker had been at the mine. Shannon testified,
however, that it did not surprise him that Baker was
inspecting on a Friday and Sunday, as this was not unusual.
He also observed that during January 1997, the mine had
twenty inspection days and had fourteen in February. He
also noted that the mine had been inspected on a Friday only
the week before the hearings.
James Everett Kelly is now a mine superintendent at Leeco's
No. 68 Mine. He was an assistant to Tracey during relevant
times. Vic Lewis told Kelly on February 4th that he wanted
to transfer Maxey to the 4 Section. Kelly agreed. Kelly
later learned that Maxey had refused to go to the 4 Section
and that disciplinary action had been instituted. Kelly
maintains that he told Tracey that he thought Maxey should
have been terminated for refusing to work. According to
Kelly, one or two days following the February 4th suspension
of Maxey, Tracey told him that he was going to terminate
Maxey because he had lied about his disciplinary record.
Kelly became aware on February 9th, while working at another
mine, that inspector Baker was at the No. 68 Mine. Kelly
was not, however, surprised that Baker inspected on a Sunday
and did not find it unusual for Baker to be at the mine on a
weekend. He was unaware that Maxey had visited the MSHA
offices on February 9th. On cross-examination Kelly
explained that he had seen the prior warning slips when
Tracey showed them to him some two or three days after
February 4th, i.e., either on the 6th or 7th. He was
certain that it was not after the weekend. At that time
Tracey said that he was going to terminate Maxey.
A.B. Foreman is Leeco's worker's compensation coordinator.
His office was located in London, Kentucky, where the
personnel files are kept. He recalled that Tracey had
called and asked if Maxey had any warning slips in his
personnel file. According to Foreman, Tracey held on the
phone line while he searched for the warning slips and then
reported them over the phone to Tracey. Tracey then
allegedly told Foreman that he would have Shannon pick them
up and Shannon in fact picked them up later that afternoon.
Foreman recalled that it was a few days later when Tracey
again called and said he needed more copies of the warning
slips, and needed them right away. Foreman then faxed those
copies to Tracey on February 10th as noted on the top of the
warning slips in evidence as Government Exhibit 3.
Talmadge Mosley, Leeco's President, recalled meeting with
Maxey on February 4, 1997, right after he had initially been
fired. Maxey told Mosley "they fired me and I don't know
why" (Tr. II. 201). Mosley then intervened with Tracey on
Maxey's behalf arguing that Maxey had been with the mine a
long time and that discharging him may have been "a little
too harsh" (Tr. II. 203). Maxey purportedly also told
Mosley that he had no other disciplinary actions. On
Thursday, February 6th, Mosley purportedly talked to Tracey
by telephone. Tracey claims that he told Mosley that Maxey
had lied to him and that in fact he had six warning slips in
his file. According to Mosley, Tracey said that he was
therefore going to fire Maxey and he approved
(Tr. II. 205).
Evaluation of the Evidence
While the testimony of the operator's witnesses might
superficially appear to support its claims that it in fact
discharged Complainant on February 6, 1997, prior to the
MSHA inspections, upon closer scrutiny and upon evaluation
of the documentary evidence (and lack thereof), I find that
its claims fail the test of credibility. It is the
combination of a number of inconsistencies that leads to
this conclusion. In particular the credibility of two key
witnesses, general mine superintendent Amon Tracey and
safety inspector Fred Shannon, must be viewed in light of
inconsistent statements and testimony. For example, at the
unemployment insurance hearing held on June 24, 1997, prior
to the temporary reinstatement hearing, Tracey testified on
three separate occasions that "the engineers" from Leeco's
London, Kentucky office, which is located approximately 70
miles from Tracey's office at Jeff, delivered the written
warnings to him on February 6th.
In addition, when asked why copies of the written warnings
were faxed from Leeco's London office to Tracey's office on
February 10th, the day before Maxey's discharge, Tracey
testified that he "couldn't find" the copies that had been
personally delivered to him on the 6th, so he called A.B.
Foreman at the London office on the 10th and asked Foreman
to fax him another set of copies.
Tracey also testified, however, that he subsequently found
the copies that had been delivered to him on the 6th and
those copies, not the fax copies, were the ones he
purportedly showed Maxey when he discharged him on February
11th. More specifically, Tracey testified at the
unemployment insurance hearings that "I later recovered my
copies. I have them now, the originals, that Ronnie Maxey
looked at" (Jt. Exh. 1). In contrast, Tracey testified at
the temporary reinstatement hearing that Fred Shannon, who
he identified at trial as "our safety man" (and who had
been safety director for two years and whose office was
located next to Tracey's) and not the engineers from the
London office, had hand-delivered the packet of written
warnings to him on February 6th (Tr. I. 271, 291). While
Respondent notes that Shannon previously worked in the
engineering department the record shows that that had been
4-1/2 years earlier. Tracey himself never explained this
inconsistency.
Fred Shannon's explanation of what happened to the warning
slips that he supposedly hand-delivered to Tracey on
February 6th also contradicted Tracey's testimony at the
unemployment insurance hearing. Shannon testified that on
the afternoon of February 6th (after he had delivered the
envelope of warning slips to Tracey) Tracey gave the written
warnings back to him and told him to keep them for him (Tr.
II. 92-93, 103-105). Shannon claimed that he then
unwittingly placed the warning notices in Maxey's training
file, and took the training file to the London office where
he put it in Leeco's "safety department filing cabinet" (Tr.
II. 106-109, 93-95).
According to Shannon, four days later, on February 10th,
Tracey came to his office and said he needed the warning
slips back to show to Maxey the next morning (when he was
going to discharge Maxey). At that point, Shannon allegedly
remembered that he had accidentally put the warning slips in
the training file, and put the training file in the safety
department file in London (Tr. II. 95-96, 109-110). Because
the warning slips were back in the London office, and Tracey
needed them the following morning, Tracey said he would just
have A.B. Foreman fax him another set of the notices (Tr.
II. 96, 123).
As already noted, however, Tracey testified at the
unemployment hearing that on February 11th he had shown
Maxey the same written warnings that had been personally
delivered to him on February 6th and not the copies that
were faxed to him on the 10th. Indeed, if Shannon's
version of events was true, Tracey could not have shown
Maxey the hand-delivered copies on the 11th because they
supposedly were sitting in a file cabinet 70 miles away.
Shannon's testimony about how he came to pick up and
personally deliver the warning slips to Tracey on February
6th also contradicts Tracey's testimony at the unemployment
insurance hearing. At the hearing on the merits of this
case, Shannon testified that he went into Tracey's office on
February 5th and overheard Tracey talking to Foreman on the
telephone "about some warning slips, and he needed a copy of
them, that he needed to see them" (Tr. II. 90). Shannon
said that Tracey "was still on the phone when I told him if
he [Foreman] would put it in an envelope . . . I could pick
them up for him" (Tr. II. 90-91).[4]
Shannon alleged that when he personally delivered the packet
of warning slips to Tracey on February 6th, Tracey opened
up the envelope in his presence, looked at the written
warnings, and declared that the "was going to fire him
[Maxey]" (Tr. II. 91-92 and 123-124, Tr. I. 311). However,
at the unemployment hearing, Tracey testified that he did
not talk about Maxey on February 6th with anyone other than
Talmadge Mosley and Everett Kelly (UI 141, Q42). Indeed,
although Shannon purportedly played a prominent role in
support of Leeco's cases, Tracey never mentioned Shannon
during his testimony in the unemployment hearing (Jt. Exh.
1, pp. 126-185).
In addition to the inconsistencies between the testimony
of Tracey and Shannon, it is also noteworthy that in his
statement to MSHA, Shannon did not mention supposedly
picking up the warning slips and delivering them to
Tracey. In fact, on March 12th, the date of Shannon's
statement, the extent of his purported knowledge about
Maxey's discharge was as follows:
On Thursday, February 6, 1997, Amon Tracey
told me that he had followed up on Ronnie
Maxey's file & found out that he had been
wrote up 6 times. He also said that Everett
had verbally warned him [Maxey] & so had Vic.
He told me he was going to call Talmadge &
tell him that he was going to fire Ronnie
Maxey after finding he had lied to him (Gov.
Exh. 8, p.3).
As Complainant observes in his brief, it defies common
sense that Tracey would have told Shannon that he had checked
on Maxey's personnel file and learned about the written
warnings if, as Shannon testified, he (Shannon) had
personally delivered the warnings to Tracey on February
6th, and watched Tracey read the warning slips in his
presence.[5]
Leeco's claim that the written warnings were
personally delivered on February 6th to Tracey, whose office
was located 70 miles from the company's London office,
rather than simply faxed to him in the first instance,
is also suspect. In this regard, it is undisputed that
Leeco regularly faxed from the London office to
Tracey's office at the No. 68 mine its daily reports
regarding MSHA citations issued to the company (Tr. I.
288-290). In light of the contradictory testimony of
Tracey and Shannon, and Shannon's inconsistent
accounts of how he came to volunteer to pick up the
warning slips in the first place, Leeco's assertion
that the written warnings were hand-delivered to Tracey
on February 6th is indeed not credible.
As Complainant further notes in his brief, Leeco's
version of events requires that one ignore both its
contradictory testimony and common sense while the
Complainant, on the other hand, has proof that copies
of the written warnings were faxed to Tracey on
February 10th, one day after MSHA had completed its
second inspection at the No. 68 mine, and one day
before Maxey was discharged. (Gov't Exh. 3).
The reason advanced by Leeco as to why Tracey purportedly
decided to check Maxey's personnel file in the first
place, i.e., his suspicion that Maxey had lied about
his disciplinary history, is also suspect. Tracey
testified that when Vic Lewis and Everett Kelly both
told him shortly after he had suspended Maxey on
February 4th that they had previously given verbal
warnings to Maxey, "that kind of rung a bit of a bell
with me" (Tr. I. 269, 294). In light of Tracey's
testimony that he asked Maxey on February 4th whether
he had ever received any "disciplinary slips" (i.e.,
written warnings) it strains credulity that thereafter
learning about verbal warnings would have prompted
Tracey to investigate Maxey's work history. Indeed, in
his MSHA statement, Tracey claimed that he had held the
opinion that Maxey "was not a very good worker" for 6-
12 months before he fired Maxey. If that was true, it
is highly unlikely that Tracey would have been
surprised to hear that Maxey had previously been given
verbal warnings.
Moreover, at the unemployment hearing, Tracey admitted
that he had known about Vic Lewis' purported verbal warning
to Maxey for several months before the suspension of
Maxey. Thus, the only verbal warnings that Tracey
could have learned about after suspending Maxey were
those purportedly given by Everett Kelly. It is also
noted that when he was questioned at his deposition in
this proceeding, Kelly did not say that he had told
Tracey about verbally warning Maxey (Tr. II. 163-166).
Kelly likewise in his statement to MSHA, did not
mention any disciplinary problems he had had with Maxey
(Tr. II. 166-167). While Kelly could have
inadvertently omitted this information in his
deposition and statement to MSHA, it is nevertheless
another factor to consider in evaluating the
credibility of Kelly's trial testimony that he had
informed Tracey of having given verbal warnings to
Maxey. It is significant moreover, that even if Kelly
had told Tracey about alleged verbal warnings he had
given Maxey, Kelly himself admitted that such warnings
would not have been considered by Leeco in disciplining
its miners (Tr. II. 168).
The documentary evidence, and lack thereof, also fails
to support Leeco's claims. As previously noted, Leeco has
produced no documentary evidence establishing that
Tracey's decision to discharge Maxey was made on
February 6th. Indeed, the documentary evidence, i.e.,
the written warnings that were faxed to Tracey on
February 10th (Gov't Exh. 3) and the discharge notice
dated February 11th (Gov't Exh. No. 2), suggests
otherwise. In addition, the absence of telephone
records to corroborate the alleged February 6th
telephone conversation between Tracey and Leeco
President Talmadge Mosley is significant. Mosley
testified that on Thursday, February 6th, while he was
in Pennsylvania on company business, he called Tracey.
According to Mosley, Tracey told him during that
conversation that he was going to fire Maxey because
Maxey had lied about his disciplinary history (Tr. II.
204). This testimony mirrored Tracey's testimony at
the temporary reinstatement and unemployment insurance
hearings (Tr. I. 273).
However, when Mosley gave his statement to MSHA on
March 12th, in the presence of Tracey and Marco Rajkovich,
Leeco's attorney, he stated that Tracey had called him
on the morning of February 6th. This inconsistency is
significant in light of the fact that Tracey likewise
told MSHA on March 12th, just 5 weeks after the alleged
phone conversation of February 6th, that he had called
Mosley. Thus, both Tracey and Mosley told MSHA that
Tracey had initiated the phone call on February 6th,
yet both testified inconsistently at the discrimination
and unemployment hearings that Mosley had made the
call.
This inconsistency may be significant because if Tracey
had initiated the telephone call from Leeco's offices it
would be a simple matter to prove such a call by the
production of Leeco's own telephone records. It may
reasonably be inferred under all the circumstances that
after it was realized that such a call could not be
corroborated by Leeco's records, since there was in
fact no such call, both Mosley and Tracey's testimony
was modified to reflect this problem. Thus, their
testimony was subsequently changed to suggest that
Mosley had initiated the call.
As Complainant also observes in his brief, the inference
that Leeco's defense was fabricated may also be derived
from two other compelling circumstances. First, the
evidence suggests that Maxey was indeed not fired for
allegedly lying, thereby supporting the conclusion that
the decision to fire Maxey was not made on February
6th. In this regard it is undisputed that Tracey made
the decision to discharge Maxey, and that he wrote the
discharge notice himself on February 11th (Tr. I. 280-
281). The notice states as follows:
After numerous times of written warning
Ronnie Maxey's work is still unsatisfactory.
Also disobeyed a direct order. (Gov't Exh.
No. 2).
If, in fact, Tracey had decided on February 6th to
discharge Maxey on the grounds that he lied about his
disciplinary history, it is inconsistent and therefore
suspect that Tracey did not indicate on the discharge
notice that lying was in fact the basis for the
discharge. Instead, Tracey stated that Maxey's work
was unsatisfactory because he had refused a work order
(which was the basis for his previous 5 day suspension)
after having previously received "numerous" written
warnings. Moreover, Tracey did not offer any
justification or explanation at either the
discrimination or unemployment hearings for his failure
to state on the discharge notice that Maxey was being
fired for lying or dishonesty.
The second circumstance is based on the actions of
Shirley Grant, Leeco's assistant human resources coordinator,
in filing Leeco's responses to Maxey's unemployment
claim. This evidence also circumstantially leads to
the inference that Maxey was not fired for alleged
lying. Grant testified that it was her responsibility
to respond to unemployment claims against Leeco (Tr.
II. 67). When a worker from the local unemployment
office called Grant, sometime after February 20th, to
get the company's position as to why Leeco had
discharged Maxey, Grant responded that Maxey had been
fired for refusing two direct work orders. At trial,
Grant attempted to explain this inconsistency by
testifying only that the unemployment office "wanted a
reply very, very shortly," and she therefore could only
talk with Vic Lewis, Maxey's immediate foreman, and not
with Tracey, who had discharged Maxey (Tr. II 80-82).
In addition, Leeco's appeal of the initial unemployment
insurance determination (in Maxey's favor) further
suggests that Leeco's claim that Maxey was fired for
lying was pretextual. In this regard, the following
colloquy ensued at the unemployment hearings regarding
Grant's testimony:
Attorney: And who instructed you to appeal?
Grant: It came from Amon [Tracey], from the
job, from the superintendent. I can't remember if
it was exactly from Amon to me. It might have
went from Amon to my supervisor to me . . .
Q: And who - did someone instruct you to state what
your reason was for appealing?
A: Yes, insubordination, yes. I mean, that's what we
said all along is that he failed to follow two
orders.
Q: Okay, but what I'm asking you is, that's not
something that you wrote on your own. You were
told that that was the reason; that's what you
should put in your appeal notice?
A: Yeah, we discussed that. I mean, that was the
reason, misconduct.
Q: Who was "we?"
A: With Amon and - yeah, I can't remember if Everett
[Kelly] was there. I don't remember that.
Q: So, as best you remember, Mr. Tracey and perhaps
Mr. Kelly told you to appeal, and the basis for
appealing was insubordination or the reason for
discharge was insubordination.
A: Insubordination, yes (Tr. II. 71-72).
No mention is made that Maxey had been fired for lying or
dishonesty. Grant indicated that the company's position "all
along" was that Maxey had been discharged for "insubordination" -
i.e., for "fail[ling] to follow two orders."
Subsequently however, when Grant testified at the instant
discrimination hearing, she initially claimed that Tracey had
told her to appeal the unemployment claim because Maxey had been
fired for refusing to follow work orders and for lying (Tr. II.
70). She explained, only after she was presented with her prior
testimony from the unemployment hearing, that she "should have"
mentioned lying as a basis for the discharge during that earlier
testimony (Tr. II. 73). This explanation, given all of the other
inconsistencies in Leeco's case, does not ring credible.
In sum, all of the documentary evidence in this proceeding
(i.e., the written warnings that were faxed to Tracey on
February 10th, the discharge notice of February 11th, and Leeco's
unemployment appeal notice of March 5th (Gov't Exhibit 11)
support the Complainant's contention that the decision to
discharge him was made only after Tracey's receipt of the warning
slips on February 10th, and that he was not fired for lying as
Leeco now claims. At the same time there is no documentary
evidence that supports Leeco's claim that Tracey decided to fire
Maxey on February 6th for lying.
Finally, the fact that Leeco made no attempt to contact
Maxey prior to February 11th, regarding his purported discharge,
supports the conclusion that the discharge decision was not made
until after the London office faxed the warning slips to Tracey
on February 10th. Tracey claims that when he saw a "598" prefix
listed for Maxey's phone number, he knew it wasn't the right
number. He therefore did not call the number, for example, to
try to contact someone who could then get in touch with Maxey -
because Maxey "was the man [he] wanted to see" (Tr. I. 285).
It is undisputed that Tracey knew that Maxey lived within a
mile of the No. 68 mine (Tr. I. 300) and no doubt also knew that
he lived on property owned by Leeco (Tr. II. 124-125).
Nonetheless, Tracey admits that during the 5 day period between
Tracey's purported decision to fire Maxey and Maxey's return to
the mine on February 11th, he made no effort to contact Maxey
other than supposedly checking a list of employee telephone
numbers on his office wall (Tr. II. 283-286). Specifically,
Tracey did not attempt to send Maxey a discharge notice in the
mail (Tr. II. 285), did not go to his home, and did not make any
effort to determine Maxey's phone number despite his admission
that immediately contacting a discharged employee is the proper
thing to do. In this regard, the following colloquy occurred at
the instant hearings:
Tracey: I was going to call [Maxey] and tell him that
he was discharged.
Attorney: Why?
A: Well, you know, I felt like that I should. If
indeed he has a five-day suspension and thinks
that he's coming back to work . . . only to come
back to be discharged, the man might go somewhere
else and get him a job and start to work. That
would save him being . . . without pay for those
few days. I try to be very honest and square with
my people.
Q: So, in other words, you thought it was the fair
and right thing to do when you discharged somebody
. . . to notify them right away.
A: Yes, sir. I even phone people at home. Even if
they quit my job. I call them at home (Tr. I.
283-284).
In conclusion, considering all of the evidence and
circumstances, I do not find Leeco's claim that it made the
decision to discharge Maxey on February 6, 1997, to be credible.
Moreover, I find that the operator's efforts to create a
fictional account to support such a claim is, in itself,
compelling evidence and, in conjunction with the coincidence in
timing, it is clear that the decision to discharge Maxey on
February 10th or 11th was motivated by the knowledge or suspicion
that Maxey had made safety complaints to MSHA resulting in the
inspection of the No. 68 mine on February 7 and 9, and the
issuance by MSHA of citations and notices-to-provide-safeguards
in that mine. Accordingly, I find that Maxey's discharge was
motivated by his protected activity
In its posthearing brief Leeco raised, for the first time,
the alternative argument that, "Amon Tracey would have terminated
Maxey whether or not he had knowledge of Maxey's complaint to
MSHA, due to Maxey's inadequate job performance, failure to
follow the direct orders of his supervisor, Vic Lewis, and
directly lying to Amon Tracey when confronted with his failure to
follow Mr. Lewis' instructions." (Respondent's Brief p.2).
It is not explained and therefore it is not clear what
Respondent is referencing in its statement that Maxey was
"directly lying to Amon Tracey when confronted with his failure
to follow Mr. Lewis' instructions." It presumably is its claim,
disputed by Complainant, that Complainant lied about his prior
disciplinary record. Considering, however, the damage Leeco has
brought upon its credibility in this case I can give but little
weight to its version of this disputed event. Accordingly, I
reject its apparent affirmative defense that, even if it had
knowledge of Maxey's protected activity (which it vehemently
denies), it would have discharged him in any event, based on his
unprotected activity alone. Under all the circumstances I find
that Maxey was discharged in violation of section 105(c)(1) of
the Act.
ORDER
Discrimination Complaint Docket No. KENT 97-257-D, IS
GRANTED. The Secretary is directed to file a brief on or before
February 3, 1998, addressing each of the criteria under section
110(i) of the Act, citing supportive evidence in the record and
arguing how that evidence supports her proposed penalty in this
case. The Respondent may also file a brief on this issue on or
before the same date.
The parties are further directed to confer with the
objective of reaching agreement on issues relating to costs and
damages, and to report the results to the undersigned on or
before February 3, 1998. This decision is accordingly not yet
final and will not be final until such time as all remaining
issues as to costs, damages and a civil penalty are resolved.
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)
\mca
**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 the Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal 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 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 Act.
[2]: By agreement of the parties, the July 2, 1997, record
of the Temporary Reinstatement Proceedings is incorporated
herein by reference. The transcript of those proceedings is
designated as "Tr. I" and the transcript of proceedings on
the merits held September 30, 1997, is designated as "Tr.
II." It should be noted that the decision ordering
temporary reinstatement dated July 8, 1997, was issued
without benefit of the completed record now available.
Final credibility determinations have now been made based on
this completed record.
[3]: There is no allegation or evidence that, prior to the
February 7, MSHA inspection, any Leeco personnel knew or had
reason to know of Maxey's confidential complaints to MSHA on
February 4 and 5.
[4]: Shannon thereby also contradicted his own testimony at
the temporary reinstatement hearing, wherein he stated that
he had talked to Tracey about picking up the warning slips
sometime after Tracey had talked to Foreman, i.e., he did
not claim to have walked in on Tracey's phone conversation
with Foreman (Tr. I. 310).
[5]: It should also be noted that Tracey, in his statement
to MSHA, likewise did not allege that Shannon had delivered
the warning slips to him. See Joint Exhibit 2.