<DOC>
[DOCID: f:w-94-594.wais]
BLAKE SORENSEN
February 6, 1995
WEST 94-594-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-3577/FAX (303) 844-5268
February 6, 1995
BLAKE SORENSEN, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEST 94-594-D
v. : DENV CD 94-10
:
INTERMOUNTAIN MINE SERVICES, : Apex Mine
Respondent :
DECISION
Appearances: Blake Sorensen, Ferron, Utah, pro se; Thomas J.
Erbin, Esq., Prince, Yeates & Geldzahler, Salt Lake
City, Utah, for Respondent.
Before: Judge Manning
This case is before me on a complaint of discrimination
brought by Blake Sorensen against Intermountain Mine Services
under section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 815(c)(1988)("Mine Act"). For the reasons set
forth below, I find that Mr. Sorensen did not establish that his
discharge by Intermountain Mine Services ("Intermountain") was
motivated by his protected activity. Accordingly, I find that
Mr. Sorensen was not discriminated against by Intermountain in
violation of the Mine Act.
Mr. Sorensen filed a discrimination complaint with the
Department of Labor's Mine Safety and Health Administration
("MSHA") pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C.
� 815(c)(2). MSHA concluded that the facts disclosed during its
investigation did not constitute a violation of section 105(c).
Mr. Sorensen then instituted this proceeding before the Commis-
sion pursuant to section 105(c)(3), 30 U.S.C. � 815(c)(3). A
hearing was held on January 11, 1995, in Salt Lake City, Utah.
The parties elected not to file post-hearing briefs.
FINDINGS OF FACT
Mr. Sorensen was employed by Intermountain from June 21,
1993 through March 15, 1994. During most of this period he was a
roof bolter at the Apex Mine, an underground coal mine. The mine
is owned by Andalex Resources and operated by Intermountain. On
the day shift on March 15, 1994, Mr. Sorensen and Scott Olsen,
another miner, installed roof bolts in an entry that had been
mined with a continuous mining machine earlier that shift. After
they finished roof bolting, they applied rock dust to the recent-
ly mined area using the rock duster on the roof bolting machine.
During the rock dusting operation, Mr. Sorensen slowly trammed
the roof bolting machine back out of the entry and Mr. Olsen
applied rock dust to the roof and ribs by holding the end of the
hose attached to the duster. They were the only miners in the
entry.
An MSHA inspector was at the mine on March 15, and Mr. Olsen
was wearing a dust pump supplied by MSHA to sample for respirable
dust. The shift began at 7:00 a.m. and was scheduled to end at
3:00 p.m. At about 10:00 a.m., Matt Brenemen, the miners' fore-
man, arrived in the entry along with the MSHA inspector. Olsen
and Sorensen had bolted the area and were about finished rock
dusting. They turned off the rock duster when Mr. Brenemen
signaled with his cap light. Mr. Brenemen asked the crew, "What
the fuck are you doing?" Mr. Sorensen replied that he was just
doing his job, rock dusting like he always does. Mr. Brenemen
told them that they could not rock dust while a respirable dust
pump was on. Mr. Sorensen replied by saying "fuck you" to Mr.
Brenemen. Mr. Brenemen then said, "if you say that to me again,
you are out of here." Mr. Sorensen replied by saying "fuck you"
again. Mr. Brenemen said "let's go" and told Mr. Sorensen to get
his stuff. Mr. Olsen and the MSHA inspector were present during
this conversation, which lasted no more than 20 seconds. (Tr. 23,
51).
A moment later, as they were preparing to leave the mine,
Mr. Brenemen told Mr. Sorensen that he could not say that to him.
Mr. Sorensen replied by saying that if Brenemen could swear at
him, then he could swear back at Brenemen. Mr. Brenemen escorted
Mr. Sorensen out of the mine. While Mr. Sorensen was preparing
to take a shower, Mr. Brenemen asked him what was bothering him.
Mr. Sorensen did not reply. After he showered and dressed, Mr.
Sorensen filled out his time card and left the mine. It was Mr.
Sorensen's understanding that he had been fired. He was not
issued a discharge slip by Intermountain. These events are not
disputed by the parties and are supported by the testimony of
Sorensen and Olsen, and by Mr. Sorensen's statement to MSHA's
special investigator, Ex. R-1. Mr. Brenemen is no longer em-
ployed by Intermountain and he did not testify at the hearing.
As a general matter, there is a lot of cursing at the Apex
Mine. Mr. David Drips, president of Intermountain, testified
that it is "a very crude society that takes place down there."
(Tr. 58). He stated that the responsive "fuck you" is not
"totally improper" and he has been responded to that way. Id.
He went on to state, however, that when a supervisor tells an
employee to stop cursing at him, he must do so or face disciplin-
ary action. (Tr. 55, 58). He testified that a miner cannot
continue to curse his supervisor in front of other miners, after
having been told to stop, because it will "erode his supervising
capabilities." (Tr 55). He also testified that if a miner is
told to leave the mine for continuing to curse at his supervisor
after being warned not to do so, the miner would generally be
given the opportunity to explain his behavior, to see "if we can
understand what his problem was." (Tr. 55, 57, 59). In such a
situation, the discipline, if any, is usually less than a dis-
charge. Id. Mr. Olsen testified that he does not know of an
instance in which a miner has continued to say "fuck you" to a
supervisor after being warned not to do so. (Tr. 47). I credit
the testimony of Drips and Olsen in this regard. There is no
specific evidence as to whether any other miner has been dis-
charged or otherwise disciplined by Intermountain for using
similar language.
SUMMARY OF THE LAW
Section 105(c)(1) of the Mine Act protects miners from
retaliation for exercising rights protected under the Mine Act.
The purpose of the protection is to encourage miners "to play an
active part in the enforcement of the Act" recognizing that, "if
miners are to be encouraged to be active in matters of safety and
health, they must be protected against any possible discrimina-
tion which they might suffer as a result of their participation."
S. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 623 (1978).
A miner alleging discrimination under the Mine Act estab-
lishes a prima facie case by proving 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, 2799-2800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v. Mar-
shall, 663 F.2d 1211 (3d Cir. 1981). The mine operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no way motivated by
the protected activity. Secretary on Behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). If an
operator cannot rebut the prima facie case in this manner, it may
nevertheless affirmatively defend by proving that it was also
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activi-
ty alone. Haro v. Magma Copper Co., 1935, 1937 (November 1982).
Because direct evidence of actual discriminatory motive is
rare, illegal motive may be established through circumstantial
evidence or a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
Examples of circumstantial evidence that tend to show discrimina-
tory intent on the part of the mine operator include: (1) know-
ledge of the protected activity; (2) hostility or animus towards
the protected activity; (3) coincidence in time between the pro-
tected activity and the adverse action; and (4) disparate treat-
ment of the complainant. Chacon, 3 FMSHRC at 2510.
DISCUSSION WITH FURTHER FINDINGS OF FACT
AND
CONCLUSIONS OF LAW
There is no doubt that Mr. Sorensen had a statutory right to
voice his concerns about the safety of his workplace without fear
of retribution by management. It is evident that he believed
that MSHA regulations required that the dust pump on Mr. Olsen be
operating during the entire 8-hour shift, including when the crew
was rock dusting. (Tr. 13, 30; Exs. R-1, R-2). It appears that
he may have been concerned that if the crew obeyed Mr. Brenemen's
order not to rock dust with the dust pump running, the health and
safety of his work environment would have been adversely affect-
ed. His response to Mr. Brenemen's order could be construed as a
safety complaint or a work refusal and, thus, protected activity.
Mr. Sorensen also presented evidence that Mr. Brenemen had
asked him and other miners to work in an unsafe manner in the
past. (Tr. 38, 61; Exs. R-1, C-2, C-3). He testified that he
had confronted Brenemen when he was asked to do anything that was
unsafe or illegal. Tr. 61. Such statements are protected activ-
ity. Based on the foregoing, and evaluating all of the evidence
in a light most favorable to Complainant, I conclude that Mr.
Sorensen engaged in protected activity.
I find, however, that the adverse action complained of was
not motivated by Complainant's protected activity. I base this
finding primarily on the evidence presented by Mr. Sorensen, but
I also rely on credible evidence presented by Intermountain.
First, Mr. Sorensen testified that he doubts that Mr. Brenemen
terminated him because of his past safety complaints. (Tr. 39-
40, 61-62). In addition, there is no other evidence in the
record, including circumstantial evidence, linking Mr. Sorensen's
past safety complaints with his termination. Although Mr.
Sorensen stated, in documents submitted in this case, that Mr.
Brenemen "did a lot of things that were against the law," he
testified that he and Brenemen "got along all right." (Ex. R-2;
Tr. 32-22). I cannot draw an inference from the evidence that
Brenemen or Intermountain discharged Mr. Sorensen for his past
safety complaints.
Second, I find that Mr. Sorensen has not established that he
was terminated from his employment with Intermountain as a result
of his protected activity on March 15. Mr. Sorensen contends
that he was discharged because he questioned Mr. Brenemen's order
to stop rock dusting while the dust pump was running. Mr.
Sorensen testified, however, that he does not really know why he
was terminated. (Tr. 14-15). He stated that he was just doing
his job when Mr. Brenemen fired him "apparently" for rock dusting
while Scott Olsen's dust pump was operating. Id. He testified
that the crew always rock dusts an entry after bolting the roof
and that he had followed that procedure while under Brenemen's
supervision, including when a dust pump was operating. (Tr. 10,
12, 30). Mr. Olsen testified that he has rocked dusted while
wearing a dust pump and that, on at least one previous occasion,
Brenemen has asked him to turn off the dust pump. (Tr. 47).
Brenemen did not ask him to turn it off on March 15. Id.
It does not appear that any miner, including Mr. Sorensen,
has ever been disciplined in the past for rocking dusting an
entry while a dust pump was operating. Because Brenemen did not
testify at the hearing, it is not clear why he did not want the
crew to continue rock dusting. I find, however, that the record
does not contain evidence of past hostility towards or discipline
to a miner who rock dusted while a dust pump was operating.
Mr. Sorensen testified that "more than likely" he would have
kept on working without complaint if Brenemen had asked the crew,
in a civil manner, to stop rock dusting the entry, or if Brenemen
had similarly asked Mr. Olsen to turn off his dust pump. (Tr.
35). I find that Sorensen's rather aggressive and contemptuous
response to Mr. Brenemen's statements was the direct result of
the manner in which Brenemen addressed him. He believed that he
had been cussed out by his supervisor and assumed that he had the
right to curse him back. (Tr. 14, 23, 27; Ex. R-1). As he
stated at the hearing, if "he cursed me, why can't I curse him."
(Tr. 23).
I conclude that Mr. Sorensen continued to say "fuck you" to
Mr. Brenemen because of Brenemen's language, rather than because
Brenemen was telling him to turn off the rock duster. In turn, I
find that Brenemen's response and subsequent actions were caused
by Mr. Sorensen's contemptuous "fuck you" reply and his refusal
to talk about the matter further before he left the mine. The
evidence reveals that he might not have been discharged if he had
talked about the matter with his supervisor before leaving the
mine.
I also find that the evidence does not support an inference
that Brenemen terminated Mr. Sorensen because he engaged in pro-
tected activity. In reaching this conclusion, I have considered
whether Intermountain used Mr. Sorensen's contemptuous response
to Brenemen as a pretext for terminating him in order to mask the
real reason for his termination: his protected activity. A mine
operator cannot hide behind a miner's abusive language to shield
an otherwise unlawful discharge. In this case, however, I find
that Mr. Sorensen would have been discharged for his contemptuous
response to Mr. Brenemen alone.
In support of his contention that he was fired for making a
safety complaint, Mr. Sorensen introduced a copy of an unemploy-
ment compensation form entitled "Employer Notice of Claim Filed".
(Ex. C-1). The form, which is addressed to Intermountain, ad-
vised Intermountain that Mr. Sorensen had applied for unemploy-
ment compensation and that he reported the reason for his termi-
nation as "[f]ired for obscene language." Id. In the part of
the form to be filled out by the employer, Intermountain's Office
Manager, John Drips, wrote that Mr. Sorensen was discharged for
"insubordination in front of crew and inspector" and "failure to
follow directions." Id. The Office Manager also stated: "I do
not believe Blake was fired for obscene language..." Id. Mr.
Sorensen relies on this language to support his claim that he was
actually fired for raising a safety issue, rather than for cuss-
ing at his supervisor.
I do not believe that the form supports Mr. Sorensen's
position. It is clear from the record that he was not dischar-
ged for using profanity, cursing is common at the mine. Rather,
a preponderance of the evidence establishes that he was dis-
charged for continuing to say "fuck you" to his supervisor in
front of Mr. Olsen and an MSHA inspector, after being warned to
stop. As David Drips testified, contemptuous responses like
those of Mr. Sorensen will tend to "erode" the ability of a
supervisor to manage his crew. (Tr. 55; Ex. C-1).
I do not have the authority to determine whether Mr. Sorens-
en's discharge was fair or reasonable. The "Commission does not
sit as a super grievance board to judge the industrial merits,
fairness, reasonableness, or wisdom of an operator's employment
policies except insofar as those policies may conflict with
rights granted under section 105(c) of the Mine Act." Delisio v.
Mathies Coal Co., 12 FMSHRC 2535, 2544 (December 1990)(citations
omitted). I conclude that Mr. Sorensen's discharge did not
violate section 105(c) of the Mine Act.
ORDER
It is ORDERED that the complaint filed by Blake Sorensen
against Intermountain Mining Services for violation of section
105(c) of the Mine Act is DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Mr. Blake Sorensen, P. O. Box 54, Ferron, UT 84523 (Certified
Mail)
Thomas J. Erbin, Esq., Prince, Yeates & Geldzahler, City Center I,
Suite 900, 175 East Fourth South, Salt Lake City, UT 84111
(Certified Mail)
/RWM