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T & M DEVELOPMENT CO.
October 11, 2000
LAKE 2000-25-DM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 11, 2000
DONALD L. RIBBLE, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. LAKE 2000-25-DM
v. : NC MD 99-16
:
T & M DEVELOPMENT CO., : T & M Development Pit
Respondent : Mine ID 20-02595
DECISION
Appearances: Donald L. Ribble, Hudsonville, Michigan, pro se;
James J. Boutrous II, Esq., Butzel Long, P.C.,
Detroit, Michigan, on behalf of Respondent.
Before: Judge Melick
This case is before me following remand by the Commission
and upon the complaint of discrimination by Donald L. Ribble
(Ribble) pursuant to Section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 801 et seq, the "Act." In
his complaint Mr. Ribble alleges that his former employer, T&M
Development Company (T&M), fired him on August 17, 1999,
purportedly in violation of Section 105(c) of the Act, after he
sustained injuries on August 11, 1999.[1]
In his complaint to the Department of Labor's, Mine Safety
and Health Administration (MSHA) filed September 13, 1999, Mr.
Ribble specifically alleges as follows:
I have a back injury there [sic] Company
Doctor was treating me for pulled muscle or
torn. I stopped going to Company Doctor
because they would not ok therapy. So I have
gone to my family Doctor. He oked therapy.
On 8-11-99 I was checking a roller on the
stacker about 18 ft. up I slipped and Lost
Balance. I fall about 18 ft into a pile off
sand feet first I report it to Gary Benting
my boss. At the time it was just a sore
knee. Then the next day my back & neck began
to hurt. On 8-12-99 I asked if I could go to
the Company Doctor on my own. My boss Gary
Benting said he needed a accident report from
his boss Rick Hill. Asked everyday for the
form so I could go to the Doctor. Never
received it always had excuse. Rick didn't
have it. So on the day of 8-17-99 when the
day was over. Gary Benting fired me couldn't
give me a reason. So I called main office in
Belleville MI. Marlene VanPatten gave me
permission to go to there Company Doctor.
When I need therapy it was never ok with the
Company. Company Doctor informed me I could
go back on light duty. Marlene VanPatten
informed me again I was fired. I still have
Blue Cross Blue Shield with Thompson &
McCully so that's paying medical bills. I
don't know when that will quit. I have no
means of income. They referred me Workman
Comp. & refused to hire me back on light
duty.
By letter dated November 16, 1999, MSHA advised Mr. Ribble
that the facts disclosed during its investigation did not
constitute a violation of Section 105(c). On December 20, 1999,
Mr. Ribble filed the same complaint with this Commission.
Pursuant to the Commission's remand, hearings were held in
Charlotte, Michigan on August 3, 2000, and September 7, 2000. At
hearings on August 3, 2000, Ribble requested a postponement to
obtain the assistance of counsel. The postponement was granted
over Respondent's objection. At continued hearings on September
7, 2000, Mr. Ribble proceeded without counsel.
In discrimination cases under Section 105(c) of the Act the
complainant bears the burden of production and proof to establish
that: (1) he engaged in protected activity, and (2) the adverse
action complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company, 2
FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub
nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3rd
Circuit 1981); Secretary on behalf of Robinette v. United Castle
Coal Company, 3 FMSHRC 803, 817-818 (April 1981). In this case
the credible evidence shows that while the Complainant may have
engaged in protected activity, he engaged in such activity only
after he suffered the alleged adverse action, i.e., discharge, on
August 17, 1999. Accordingly the adverse action could not have
been motivated by such activity.
In its remand decision the Commission held that Ribble's
allegation that he requested an accident report form on which to
report an injury would constitute a protected activity since this
request could trigger an obligation, under 30 C.F.R. � 50.20, for
T&M to report Ribble's injury to MSHA. For the reasons set forth
below I do not find that Ribble requested any such report form
prior to his discharge. Accordingly, even assuming such a
request would constitute a protected activity, it could not have
motivated his discharge. The Commission also noted that in an
interview on September 20, 1999, a week after the complaint was
filed, Mr. Ribble mentioned that he had reported safety problems
to a mine inspector and that this would also constitute a
protected activity. Ribble testified in this regard at hearings
that he reported these safety problems only after he had already
been discharged. Accordingly such protected activities could not
have motivated his discharge.
Ribble testified that he had been working for about a year
at the T&M operation as a loader operator when, on August 11,
1999, he fell "at the most" 18 feet into a sand pile as he was
climbing onto the conveyor to check a roller. The roller was
"either worn-out or it came out of its bracket." He claims that
although his left knee hurt, he "walked it off" and completed his
work assignments that day. No one else was present at the time
of this alleged incident and there is no independent
corroboration that it occurred. Ribble testified that at the end
of the shift, around 6:45 that evening, all the workers met with
superintendent Gary Benting. According to Ribble after everyone
left this meeting he told Benting that he had slipped off the
conveyor and that his knee hurt. There were no other witnesses
to this purported one-on-one meeting with Benting and Benting
denies that Ribble ever complained to him about any injury. The
medical records submitted by Ribble do not moreover reflect that
he had any knee or leg injury (Exhs. C-1 and C-2).[2]
Ribble testified that around 7:30 or 8:00 on the morning of
the following day he approached Benting. He testified "my leg
was starting to hurt quite bad, or my knee, actually, and I might
want a little time off to go to the doctor, is exactly what I
said." According to Ribble, Benting responded that he could not
see his own doctor but had to go to the company doctor, and
needed a form to see the company doctor. According to Ribble,
Benting said he did not have any forms with him at the time but
would obtain one for him. Again, there were no other witnesses
nor independent corroboration for this alleged conversation and
Benting denies that it occurred. Ribble took off work early that
day not because of any injury, but to do something with his wife.
Ribble testified that on the morning of the 13th of August,
he again told Benting that he had to go to the doctor and Benting
purportedly responded that he needed to get a form from Rick.
Ribble claims that on August 13, he also told co-workers Miller
and Bosch that he wanted to see the company doctor. Neither
Miller nor Bosch was called as a witness nor statements from them
provided, however, to corroborate this claim. In spite of his
alleged injury there is no evidence that Ribble ever requested
light duty work but continued working at his regular job. Ribble
testified that on Tuesday, August 17, 1999, he saw Regional
Manager, Rick Hill at the mine and that he mentioned to other
employees that "Rick should have the form." No witnesses or
other corroboration was provided. At the end of the day on
August 17, Benting purportedly told Ribble not to bother coming
back to work. When Ribble was asked why he was being terminated
Benting purportedly only turned and walked away. Ribble
maintains that he then said to Benting "I know why, because of
what I told you by the loaders the other day, that I had slipped
and fell," and that Benting responded "yeah, whatever" and walked
away.
Ribble testified that after he was fired he contacted Hill
by phone that same night to obtain the form he purportedly needed
to see the company doctor. In the telephone conversation Hill
purportedly told Ribble to get the form from the company's Grand
Prairie office or from Office Manager Marlene Van Patten.
Ribble then purportedly contacted Ms.Van Patten who informed him
the next day that his visit to the company doctor was authorized
and that he did not need to first obtain any form.[3]
In his statement to the MSHA investigator Ribble claimed
that the doctor took X-rays of his neck and told him that the X-
rays did not show anything. Ribble stated that he then told the
doctor that it was his back that hurt but that they did not want
to X-ray his back. Ribble also stated that another doctor also
told him that the X-rays "look good, nothing wrong." (Court Exh.
No. 1, pg. 5-6). The doctor nevertheless restricted him to light
duty work and authorized therapy. According to the record this
visit occurred on August 19, 1999. (Exh. No. C-1).
T&M Division Manager Gary Benting testified that he had been
Ribble's direct supervisor as long as Ribble had been employed
for T&M. Benting testified that he terminated Ribble because he
was not performing his duties. The drivers whose trucks Ribble
was supposedly loading were complaining to Benting that they
were waiting too long. Benting claims that he therefore warned
Ribble on August 16th, to spend less time on the phone and to do
more loading. The problem purportedly continued on August 17th,
and, at the end of the shift, Benting told Ribble that his
services were no longer needed. Ribble then purportedly
responded to Benting "I'll get you, you son-of-a-bitch, you
asshole."[4] According to Benting, as Ribble was leaving he also
said "by the way I fell off the loader today."
Benting testified credibly that Ribble never told him that
he had been injured, that Ribble never asked him for any form to
authorize him to see the company doctor, and that Ribble never
made a safety complaint or complaint about the conveyor or
loader. T&M Operations Manager Richard Hill likewise testified
that at no time before his discharge did Ribble ever complain to
him about any injuries from falling off the stacker conveyor.
However, Hill recalled receiving a telephone call from Ribble
after Ribble had been fired in which Ribble may have told him
that he had been injured and could return to work on light duty.
Given the lack of corroboration of Ribble's testimony that
he had, prior to his discharge, requested an authorization form
to see a doctor, the credible denials by both Gary Benting and
Richard Hill that Ribble had requested such a form prior to his
discharge, the absence of any medical evidence that Ribble had
any leg or knee injury and the absence of any objective medical
evidence of any neck or back injury, and the inconsistencies in
Ribble's testimony, his complaint and his statement to the MSHA
investigator, I do not find that Ribble has sustained his burden
of proving by credible evidence that he in fact had requested
such a form at any time prior to his discharge on August 17,
1999. Accordingly, this alleged activity, even assuming that it
was protected, could not have been a motivating factor in his
discharge. This discrimination complaint must therefore be
dismissed.
In reaching these conclusions I have not disregarded the
decision of the state administrative law judge that Ribble was
not disqualified from unemployment benefits because T&M was
unable to prove that Ribble's discharge was for disqualifying
conduct. Since my findings herein are limited to a determination
that Ribble failed to meet his burden of proving that his
discharge was motivated by an activity protected under the Act,
they are not in conflict with the state judge's decision.
Because the state hearings were conducted by telephone in the
absence of the company's key witness and no record of the
proceedings was available to evaluate, I could not in any event
accord any weight to the decision. See Pasula v. Consolidation
Coal Company, 2 FMSHRC at 2794 - 2795.
ORDER
Discrimination Proceeding Docket No. LAKE 2000-25-DM is
hereby dismissed.
Gary Melick
Administrative Law Judge
Distribution: (Certified Mail)
Mr. Donald L. Ribble, 4775 22nd Avenue, Hudsonville, MI 49426
James J. Boutrous, II, Esq., Butzel Long, P.C., Suite 900, 150
West Jefferson, Detroit, MI 48226
**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 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 the Act.
[2]: A question remains why a loader operator whose job was
to load trucks would have taken it upon himself, without the
knowledge or direction of any supervisor and in knowing violation
of the law, to place himself in danger of serious injury or
death, by climbing 18 feet above a sand pile without a safety
belt to check on a roller. A question also remains why, since he
claims he fell before repairing the alleged defective roller,
Ribble did not report this condition to Benting at the end-of-
shift meeting held to check on "whatever needs to be done to the
plant for the next day."
[3]: In his statement to the MSHA investigator, Ribble
stated that, in this phone call, Hill said that he would get back
to him about the necessary authorization form and that Ribble
apparently on his own initiative and before Hill responded then
called Van Patten who approved his visit to the company doctor.
In his Complaint herein he does not allege that he ever asked
Hill for an accident report form but claims only that after his
discharge he called Ms. Van Patten at the main office for
permission to see the company doctor.
[4]: This statement suggests that Ribble may have indeed
been vindictive for his discharge and suggests a motive for the
safety complaints he subsequently made to MSHA. MSHA
investigated these complaints but found no violations. It also
suggests a motive for the possible fabrication of Ribble's
claimed injury and his attempt after his discharge, to obtain
workers' compensation benefits.