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[DOCID: f:va200124.wais]
ISLAND CREEK COAL COMPANY
VA 2001-24-D
April 19, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
April 19, 2002
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 2001-24-D
ON BEHALF OF : NORT CD 2000-04
DONNIE LEE LOWE, :
Complainant :
v. :
:
ISLAND CREEK COAL COMPANY, : VP #8 Mine
Respondent : Mine ID 44-03795
DECISION
Appearances: Alfred R. Hernandez, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Complainant;
Stephen M. Hodges, Esq., and Eric R. Thiessen,
Esq., Penn, Stuart & Eskridge, Abingdon, Virginia,
for Respondent.
Before: Judge Hodgdon
This case is before me on a Complaint of Discrimination
brought by the Secretary of Labor, acting through her Mine
Safety and Health Administration (MSHA), on behalf of Donnie
Lee Lowe, against Island Creek Coal Company, pursuant to
section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 815(c). A hearing was held in Abingdon,
Virginia. For the reasons set forth below, I find that Island
Creek did not take any adverse action against the Complainant
because he engaged in activities protected under the Act.
Background
The VP No. 8 Mine is a large, underground coal mine
operated by Island Creek Coal Company in Buchanan County,
Virginia. It was created when the VP No. 5 and VP No. 6 mines
were connected in the middle. It has more than 37 miles of
tunnels, approximately nine and one half miles of electrified
track and seven and one half miles of belt line. Coal is
produced by two continuous miner sections and one longwall
section.
The mine can be entered by two portals, the Deskins portal
and the Garden portal, which are five and one half to six miles
apart on the surface. Each portal has two shafts, an "A" shaft
for the removal of coal and a "B" shaft for the entry and exit
of miners.
Underground traffic in the mine is controlled by a
dispatcher located in an office on the surface near the Garden
portal. A dispatcher must be on duty at all times during a
shift. There is one dispatcher for each shift. Donnie Lee Lowe
was the day shift dispatcher in April 2000. He also was a
miners' "walk-around representative."[1]
On April 12, 2000, Lowe accompanied MSHA Inspector Ronald
Blankenship on an inspection as a walk-around representative.
The inspection ended on the surface at the Garden portal "B"
shaft at 2:45 p.m. Shift foreman William Akers directed Lowe,
through company Safety Inspector Mike Canada, to finish out the
shift shoveling coal along the belt line at the bottom of the
"A" shaft. Although he told Canada that he wanted to return to
dispatching, Lowe went down the "B" shaft and walked to the "A"
shaft to perform the assigned work. By the time he arrived the
shift was over, so he never did any shoveling.
On April 13, 2000, Lowe served as a walk-around
representative with MSHA Inspector Randall Ball. The inspection
terminated around 1:00 p.m. on the surface at the Garden portal.
Akers told Canada to take Lowe back to the belt line, to make
sure that Lowe was properly task trained in shoveling and to
have him shovel the belt. Lowe shoveled for a short time until
the shift was over.
On April 14, 2000, Inspector Ball arrived at the Deskins
portal to inspect the surface areas. Lowe elected to serve as
walk-around representative for the inspection. To do that he
had to travel from his office at the Garden portal to the
Deskins portal. On the surface this would have taken between
15 and 20 minutes. However, Lowe was advised that no surface
transportation was available so he had to travel through the
mine by rail car which took a little over an hour. When he
arrived, the inspection had been completed. Akers assigned
Lowe to spot clean along the belt line near the Deskins "A"
shaft.
On all three occasions, Lowe was replaced as dispatcher
by Johnny Baker. At that time, Baker's regular position was
as a belt man, whose main job was shoveling along the belt
line.
In his complaint filed with the Commission, Lowe claimed
that the Respondent had required him "to perform work that was
more laborious than his typical job duties required, and which
[he] would not perform when he did not act as a representative
of miners."[2] (Comp. at 2.) He averred that these "actions
by Respondent and its personnel constituted unlawful and
discriminatory conduct . . . ."[3] (Id.)
Findings of Fact and Conclusions of Law
Section 105(c)(1) of the Act, 30 U.S.C. � 815(c)(1),
provides that a miner cannot be discharged, discriminated
against or interfered with in the exercise of his statutory
rights because: (1) he "has filed or made a complaint under
or related to this Act, including a complaint . . . of an
alleged danger or safety or health violation;" (2) he "is the
subject of medical evaluations and potential transfer under a
standard published pursuant to section 101;" (3) he "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, (4) he has exercised "on behalf
of himself or others . . . any statutory right afforded by
this Act."
In order to establish a prima facie case of discrimination
under Section 105(c)(1) of the Act, a complaining miner bears
the burden of establishing (1) that he engaged in protected
activity and (2) that the adverse action complained of was
motivated in any part by that activity. Driessen v. Nevada
Goldfields, Inc., 20 FMSHRC 324, 328 (April 1998); Secretary on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803
(April 1981); Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd
Cir. 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. Pasula, 2 FMSHRC at 2799-800. If the operator cannot
rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by proving that it was also motivated by
the miner's unprotected activity and would have taken the
adverse action for the unprotected activity alone. Id. at
2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc.
Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
There can be no doubt that when he served as a walk-around
representative, Lowe was engaging in protected activity.
Indeed, the Respondent does not dispute that fact. The issues
to be decided in this case, then, are whether Island Creek took
any adverse actions against the Complainant, and, if it
did, whether it did so because he acted as a walk-around
representative. I find that while the Complainant may have
shown that being required to shovel the belt line was adverse,
he has not met his burden of demonstrating that the adverse
action was taken as the result of his protected activity.
Was the Action Adverse?
The complainant asserts that because shoveling the belt
line is harder work than being a dispatcher and is more
dangerous because it is underground, his temporary assignments
to perform that function after serving as walk-around
representative constituted adverse action. He relies on
Secretary of Labor on behalf of Glover and Kehrer v.
Consolidation Coal Co., 19 FMSHRC 1529 (September 1997), for
this proposition.
In Glover, two long-time "scooter barn" mechanics were
transferred to positions as underground, section mechanics.
Both had been serving as walk-around representatives, which
took up about two-thirds of their time while at the mine.
They were initially informed that they were being transferred
because of their walk-around duties. Later, they were told
that the "official" reason for the transfers was to make the
scooter barn more productive. In affirming the judge's
decision that they were discriminated against, the Commission
held that "the transfer of these two longstanding scooter barn
mechanics to a more dangerous assignment on the section was
adverse." Id. at 1535.
There is, however, one major difference between this case
and Glover. Lowe was not transferred to the position of belt
man, but was temporarily assigned to perform that function
to complete his shift after serving as a walk-around
representative. In the first instance, there was so little
time left that he did not have to do any shoveling. The second
time, he only worked for a short while and the third time,
while the evidence is not clear, it appears that he spent
several hours underground. While the permanent transfer to a
more dangerous assignment may be adverse, it does not
necessarily follow that a temporary assignment to a more
dangerous position is adverse, particularly in an area like
underground coal mining where almost all jobs are dangerous
and somewhat arduous.
Nonetheless, it is not necessary to decide whether having
to shovel the belt line constituted adverse action. Even giving
the Complainant the benefit of the doubt and assuming that it
was adverse, he has failed to meet his burden of demonstrating
that the action was taken because he engaged in protected
activity.
Did Lowe Establish a Prima Facie Case?
There is no doubt that Lowe would not have been assigned
to shovel if he had not been serving as walk-around
representative. One ineluctably followed the other. But, that
does not mean that the task was given to him because he
engaged in protected activity. For example, if Lowe had gone
from his dispatcher's position to perform some public
relations function for the company and was assigned to shovel
belts when he returned, while the one would be the direct
result of the other, there could be no claim of discrimination
because performing a public relations function would not be
engaging in protected activity. Thus, the Complainant must
demonstrate that his assignment was not merely because he had
left his dispatcher's job to do something else, but because
he was engaging in the protected activity of serving as a
walk-around representative.
Clearly, the reason for Lowe's assignment rests with
Akers' intent or motivation at the time he gave Lowe the
assignments. Since it is obviously very hard to discern what
a person is thinking, the Commission has set out some
guidelines for determining motivation. Thus, it recently
stated:
We have acknowledged the difficulty in
establishing a motivational nexus between
protected activity and the adverse action
that is the subject of the complaint.
"Direct evidence of motivation is rarely
encountered; more typically, the only
available evidence is indirect . . . .
`Intent is subjective and in many cases the
discrimination can be proven only by the use
of circumstantial evidence.'" Secretary of
Labor on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd
on other grounds, 709 F.2d 86 (D.C. Cir.
1983) (quoting NLRB v. Melrose Processing
Co., 351 F.2d 693, 698 (8th Cir. 1965)). In
Chacon, we listed some of the circumstantial
indicia of discriminatory intent, including
(1) knowledge of protected activity; (2)
hostility or animus towards the protected
activity; and (3) coincidence in time between
the protected activity and the adverse
action. Id.
Secretary on behalf of Baier v. Durango Gravel, 21 FMSHRC 953,
957 (September 1999).
The Complainant has established that Akers knew that he
had served as a walk-around representative and that there was
a coincidence in time between his serving as a walk-around
representative and the adverse action. This is sufficient to
meet his burden of establishing a prima facie case. To rebut
this, the company has presented evidence to show that the
adverse action was not motivated by the protected activity.
Did Island Creek Rebut the Complainant's Prima Facie Case?
Akers testified that the reasons he assigned Lowe to
shovel the belt, rather than returning him to his job as
dispatcher, were: "[R]eason number one, I had no vacancy as
a dispatcher. That position was already filled. Two, it just
wasn't efficient to displace a second time a man that could
be working." (Tr. 164.) He also stated that he did not
assign Lowe to belt cleaning duties to punish him or to try
to dissuade or discourage him from being a walk-around
representative. (Tr. 163.) Thus, the company asserts that
it required Lowe to finish his shift in a position other than
dispatcher for business reasons and not to harass him because
he had acted as a walk-around representative.
As the Commission has long held, when a business
justification is given as the reason for an action, "[o]ur
function is not to pass on the wisdom or fairness of such
asserted business justifications, but rather to determine
whether they are credible and, if so, whether they would have
motivated the particular operator as claimed." Bradley v.
Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). In determining
whether a business justification is credible, the Commission
has offered the following guidance:
Commission judges must often analyze the
merits of an operator's alleged business
justification for the challenged adverse
action. In appropriate cases, they may
conclude that the justification is so weak,
so implausible, or so out of line with normal
practice that it was a mere pretext seized
upon to cloak discriminatory motive. But
such inquiries must be restrained.
The Commission and its judges have
neither the statutory charter nor the
specialized expertise to sit as a super
grievance or arbitration board meting out
industrial equity. Once it appears that a
proffered business justification is not
plainly incredible or implausible, a finding
of pretext is inappropriate. We and our
judges should not substitute for the
operator's business judgment our views on
"good" business practice or on whether a
particular adverse action was "just" or
"wise." The proper focus, pursuant to
Pasula, is on whether credible justification
figured into the motivation and, if it did,
whether if would have led to the adverse
action apart from the miner's protected
activities. If a proffered justification
survives pretext analysis . . ., then a
limited examination of its substantiality
becomes appropriate. The question, however,
is not whether such a justification comports
with a judge's or our sense of fairness or
enlightened business practice. Rather, the
narrow statutory question is whether the
reason was enough to have legitimately moved
that operator to [take the adverse action].
Chacon at 3 FMSHRC 2516-17 (citations omitted).
Finally, the Commission has cautioned that:
[T]he reference in Chacon to a "limited" and
"restrained" examination does not mean that
such defenses should be examined
superficially or be approved automatically
once offered. Rather, we intend that a
judge, in carefully analyzing such defenses,
should not substitute his business judgment
or sense of "industrial justice" for that of
the operator.
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (November 1982).
I find that Island Creek's averred business justification
for the challenged adverse action is entirely plausible and
credible. Lowe occupied a unique position at the mine which
accounts for the company's actions toward him. Further,
contrary to his assertions, Lowe was not treated differently
than other walk-around representatives. Finally, there is no
evidence that the company, generally, or Akers, specifically,
had any animus or hostility toward walk-around representatives.
Island Creek is required by MSHA to have a dispatcher on
duty at all times. That meant that when Lowe served as a walk-
around representative, he had to be replaced. The company
asserts that it was inefficient to replace the replacement by
returning Lowe to dispatcher at the conclusion of his walk-
around duties. No evidence was presented that any other walk-
around representatives occupied jobs that required the position
to be filled at all times. Since Lowe occupied the only
position at the mine required to be performed at all times,
the company's justification must be viewed in that context.
I find that in such a situation its actions were reasonable.
Further, there is no evidence to show that Lowe was
treated differently than other walk-around representatives.
Johnny Baker and Danny Lyons both testified that they had
served as walk-around representatives. Baker, as has already
been noted, was a belt man and Lyons was an electrician. At
the hearing, the Complainant attempted to show that he was
treated differently than they when serving as a walk-around
representative. This attempt fails for two reasons. In the
first place, to show disparate treatment the Complainant would
have to show that he was treated differently than similarly
situated miners, that is, miners who served in a position that
required that they be replaced when absent. Clearly, neither
Baker nor Lyons served in such a position and no evidence was
offered concerning any other walk-around who did.
Secondly, neither Baker nor Lyons testified that they
always returned to the same job they had been performing
before serving as a representative. When asked if he always
returned to his classified position, Baker responded: "No,
sir, not every time but most of the time I did go back but
not every single time." (Tr. 130.) He further related that
he had done such things, after completing his walk-around
duties, as replacing a man at A shaft, picking up trash and
moving a motor, none of which were his classified duties.
Lyons testified that he did not always return to the
particular job he was working on, but sometimes went to the
electrical shop and performed maintenance to finish his shift.
(Tr. 150-51.)
Moreover, although both Baker and Lyons had served as a
walk-around representative numerous times, neither of them
testified that they had ever had any adverse action taken
against them by the company for doing so. Nor was any evidence
offered that either the company or Akers had ever expressed
any animosity or demonstrated any hostility toward walk-around
representatives.[4]
Finally, the Complainant spent a lot of time at the
hearing and in his brief trying to demonstrate that it would
have been just as easy, if not easier, to return Lowe to his
dispatcher position as to have him return underground. To
reach this conclusion, however, requires that the judge
substitute his business judgment, views of good business
practice or notions of fairness for that of the operator.
This is precisely what the Commission has counseled against
doing.
For the reasons discussed above, I find that Island
Creek's justification for having Lowe finish out his shifts
on April 12, 13, and 14, 2000, shoveling the belt line was
not so weak, implausible or out of line with normal practice
that it was a mere pretext to disguise the company's
discriminatory motive. Therefore, I conclude the Respondent
has successfully rebutted the Complainant's prima facie case.
Conclusion
There is no dispute that the Complainant engaged in
protected activity. For the purposes of this decision, it is
also assumed that his being required to shovel the belts was
adverse. In addition, the Complainant has shown that Island
Creek knew that he had engaged in protected activity and that
there was a coincidence in time between the protected activity
and the adverse action. However, the Respondent has rebutted
the Complainant's claim of discrimination by credibly showing
that it had a non-discriminatory reason for requiring Lowe to
finish his shifts shoveling the belt line.
Order
Accordingly, since the Complainant has not established
that the company took adverse actions against him because he
engaged in protected activity, it is ORDERED that the
complaint filed by the Secretary of Labor on behalf of Donnie
Lee Lowe against Island Creek Coal Company is DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution: (Certified Mail)
Alfred R. Hernandez, Esq., U.S. Department of Labor, Office
of the Solicitor, 4015 Wilson Boulevard, Suite 516, Arlington,
VA 22203
Eric R. Thiessen, Esq., Penn, Stuart & Eskridge, P.O. Box
2288, Abingdon, VA 24212
yi
**FOOTNOTES**
[1]: Section 103 (f) of the Act, 30 U.S.C. � 813(f),
provides that: "[A] representative of the operator and a
representative authorized by his miners shall be given an
opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal
or other mine . . . for the purpose of aiding such inspection
and to participate in pre- or post-inspection conferences
held at the mine."
[2]: Lowe's original discrimination complaint, filed
with MSHA, was not included in any of the pleadings in this
matter, nor was it offered as an exhibit at the hearing.
[3]: Lowe also alleged in the complaint that such
discriminatory action took place when he served as a
miners' representative on April 19 and 20, 2002. However,
those allegations were withdrawn at the hearing. (Tr. 19-20.)
[4]: Baker and Lyons also testified that they were not
aware of any animosity or hostility directed toward Lowe
as a walk-around representative. (Tr. 132, 153.)