.
COLORADO LAVA, INC.
WEST 2001-14-DM
March 21, 2003
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021
March 21, 2003
SECRETARY OF LABOR, MINE SAFETY : DISCRIMINATION PROCEEDING
AND HEALTH ADMINISTRATION, :
on behalf of ANDREW J. GARCIA, : DOCKET NO. WEST 2001-14-DM
Complainant : RM MD 00-12
:
v. :
:
COLORADO LAVA, INC., : Antonito Plant
Respondent. : Mine ID 05-04232
DECISION ON REMAND
Appearances: Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for the Complainant; Mark Nelson,
Esq., Harris, Karstaedt, Jamison & Powers, Englewood, Colorado,
for the Respondent.
Before: Judge Weisberger
INTRODUCTION
This case is before me based upon a decision by the Commission, 24 FMSHRC
350 (2002), vacating and remanding for further proceedings, my initial decision,
which had granted Colorado Lava, Inc.'s motion to dismiss a discrimination
complaint filed by the Secretary of Labor on behalf of Andrew Garcia.
I. Factual and Procedural Background as Found by the Commission.
The Commission, 24 FMSHRC supra, at 351 - 353, set forth its findings
relating to the facts in this case as follows:
The complainant, Andrew Garcia, worked as a front-end loader
operator at Mountain West Colorado Aggregates ("MWCA") from
January to June 1997. 23 FMSHRC at 213. He then worked as a
truck driver in MWCA's truck division from June 1997 to January
2000, and subsequently as a front-end loader operator at the railroad
shipping yard in MWCA's Antonito bagging facility from January to
June 2000. Id.; Tr. 21. Robert Duran was also employed a loader
operator in MWCA's railroad yard. 23 FMSHRC at 213.
In October 1999, Garcia tagged out a loader because the
parking brake did not work. Id. at 213-14. The following day, Garcia
told David McCarroll, the plant manger and Garcia's supervisor, that
the parking brake on the loader was not working. Id. at 214.
McCarroll responded that the loader did not need a parking brake, and
ordered Garcia to continue using the loader. Id. Garcia complied and
later complained to MSHA. Id. at 214, 218. As a result, MSHA
came to the Antonito site to inspect the loader, issued a citation to
MWCA, and initiated an investigation to McCarroll under section
110(c) of the Mine Act, 30 U.S.C. � 820(c). Id. at 214.
Shortly after the incident, McCarroll learned of Garcia's
complaint to MSHA, and when he was alone with Garcia, asked him
"in a high toned voice" about the complaint. Id. Garcia denied filing
the complaint. Tr. 34. According to Garcia, McCarroll responded,
"You know all about it," and "Bull. It will all come out in the wash."
Tr. 255-56. Garcia also testified that on another occasion in March
2000, when he was unable to load some marble chips because they
were frozen, McCarroll swore at him in a loud voice. 23 FMSHRC at
214. McCarroll testified that the was upset with Garcia for complaining
to MSHA, acknowledged that he considered Garcia's complaint an
example of his "trouble mak[ing]," and stopped speaking to Garcia
socially. 23 FMSHRC at 214, 217; Tr. 224-27.
Sometime in the spring of 2000, Ronald Bjustrom, the eighty-
percent owner of Colorado Lava, became interested in purchasing
MWCA's Antonito facility. 20 FMSHRC at 215. Bjustrom visited the
facility on four occasions prior to Colorado Lava's purchase on June 5,
2000. Id. During this time, Bjustrom decided to eliminate several
positions, and asked McCarroll his opinion as to what jobs could be
eliminated. Id. McCarroll suggested a railroad yard loader operator
position and a mechanic position. Id. Bjustrom also asked McCarroll
which MWCA employees were weak. Id. McCarroll told Bjustrom
that Garcia and four other employees were weak, and that Garcia
caused trouble, tried to stir up trouble between employees, was a poor
operator, abused equipment, and had filed union grievances. Id.
Garcia was the only employee about whom McCarroll said only
negative things. Id. Bjustrom testified that his conversations with
McCarroll had no bearing on which MWCA employees would be
rehired by Colorado Lava. Id.
In late May or early June 2000, prior to the interviews on
June 5, Bjustrom told McCarroll that he would be retained as the plant
manager. Tr. 100-01. Also prior to June 5, Bjustrom retained Terry
Kissner, who was not an employee of Colorado Lava, to do the hiring.
23 FMSHRC at 215-16. Kissner had done hiring for Bjustrom in the
past. Id. at 215
On June 5, Kissner interviewed the MWCA employees
individually according to Bjustrom's instructions, which included asking
the applicants the same questions from the booklet, asking the
mechanics additional questions, including whether they would accept
another position, and eliminating one railroad year loader operator
position and one mechanic position. Id. at 215-16; Tr. 174. Kissner
testified that, with respect to Garcia, he did not look at his personnel
file, letters of recommendation, past safety record, or production levels,
and that the interviews were a formality. 23 FMSHRC at 216. He
also testified: that he did not review the personnel files of any of the
employees he interviewed; that before the day of the interviews, he had
never visited the Antonito facility; that he had no personal knowledge of
the MWCA employees; and that while he spoke with McCarroll "as
few as three times," he did not meet McCarroll until the day of the
interviews and never discussed the MWCA employees with him. Id. at
215-16 Tr. 159, 178. Bjustrom testified that Kissner made the final
decision about which employees to rehire, and that he (Bjustrom) did
not participate in that decision, although he retained the ultimate
authority to hire. 23 FMSHRC at 215, 220.
Garcia testified that on June 1, 2000, he was told of the sale of
MWCA's Antonito facility to Colorado Lava and that all employees
would be rehired, but was not informed that any jobs would be
eliminated. Tr. 39-40. Garcia also testified that on the morning of June
5, Bjustrom gave the employees application packets, and scheduled
each employee for an interview. Tr. 40-41. At the interview, Kissner
did not inform Garcia that one loader operator position at the rail yard
was being eliminated. Tr. 42, 177.
On June 6, 2000, Colorado Lava purchased MWCA and
rehired all of the MWCA employees except Garcia, and Ernie Lucero,
a mechanic. 23 FMSHRC at 216 & N.2. After Garcia learned that he
was not going to be rehired, he secured a job with MWCA which is
farther from his home, has a lower pay scale, and fewer incentives than
his former position at the Antonito railroad yard facility. Id. at 215.
Bjustrom testified that he first learned about Garcia's complaint to
MSHA about a week or two after the decision was made not to hire
him. Tr. 143-44.
II. The Commission's Decision
The Commission found that substantial evidence supported the initial decision
that Garcia had engaged in protected activity when he complained to McCarroll and
MSHA that the parking brake on the front-end loader was operational, and also that
the operator, Colorado Lava, took adverse action against Garcia when it declined
to hire him. Thus, the threshold issue before the Commission, and on remand, is
whether the Secretary established its prima facie case that the adverse action
taken by Colorado Lava was motivated in any part by Garcia's protected activity.
The Commission noted that in a prior decision, Secretary on behalf of Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510, (Nov 1981), rev'd on other grounds, 709
F. 2nd 86 (D.C. Cir. 1983), supra, it had identified several indicia of
discriminatory intent "... including: (1) knowledge of the protected activity;
(2) hostility or animus toward protected activity; (3) coincidence in time between
the protected activity and the adverse action; and (4) disparate treatment of the
complainant." 24 FMSHRC at 354.
The Commission held that the record evidence of disparate treatment toward
Garcia by Colorado Lava was not considered fully. The Commission, id., restated
the finding in Bradley v. Belva Coal Co. 4 FMSHRC 982, 992 (June. 1982), that
circumstantial evidence of discriminatory motivation and reasonable inferences
drawn therefrom may be used to sustain a prima facie case. The Commission, 24
FMSHRC, supra, at 354 -355, noted that the initial decision pointed to evidence
of indicia of disparate treatment e.g.: (1) Doran was chosen over Garcia for the
loader operator position because Doran had more experience than Garcia, on the
other hand Vondrak who had less experience than Lucero was hired over Lucero as
a mechanic; (2) that Lucero, the only other employee not rehired was offered
another position at Colorado Lava, but Garcia was not; and (3) when considering
which positions to eliminate Bjustrom only evaluated the loader operator and
mechanic positions, and not other positions at the site. In addition, the
Commission noted other evidence of record that "could" support a finding of
disparate treatment (24 FMSHRC at 355). The Commission referred to findings
in the initial decision that Kissner wanted to hire the best qualified employees
for the loader operator and the mechanic positions, and testified that he reviewed
the applications for these two positions prior to making his decision. It was
found in the initial decision that Kissner stated that he looked at work
history and tenure when he decided to hire Doran other Garcia for the loader
operator position but admitted that he did not review Garcia's personnel file,
letters of recommendation, safety record, orproduction level when considering
whom to hire.
In addition, the Commission found that the record indicates that on
approximately June 7, 2000, after Colorado Lava assumed ownership of the subject
operation, McCarroll hired Jeremy Gallegos, a former MWCA employee who was not
working for the company at the time of its purchase by Colorado Lava, to fill
a bagger position that had been vacated prior to Colorado Lava's purchase
on June 5. The Commission noted that Gallegos apparently had experience as a
bagger. The Commission also noted that Garcia, while still employed at the
Antonito facility was being trained as a bagger and had filled in as a bagger
three or four times prior to June, but was not considered for the vacant
position. The Commission cited as fact that although Gallegos had experience
as a bagger, Garcia was also experienced as a bagger and more specifically
with operations at the Antonito facility. The Commission concluded that "despite
Garcia's availability when the bagger position was open, he was not considered
for the position." (23 FMSHRC at 355.) Additionally, the Commission noted that
in spite of McCarroll's recommendation that Bjustrom retain only one rail yard
employee after assuming operations at the Antonito facility Colorado Lava
continued to use two employees at the rail yard; that McCarroll testified that
after June 5 a second employee of the Antonito facility worked at the rail site
with either Doran or himself, including George Ruybal, Brian Kent, and Joe
Padiolo, who were former MWCA employees rehired by Colorado Lava; that McCarroll
testified that prior to June 5 Ruybal and Kent did not have experience operating
the front-end loader and were being trained. The Commission noted that Doran
confirmed McCarroll's testimony that two employees continued to work at the rail
yard site after June 6.
The Commission, 24 FMSHRC, supra, at 555 directed that, consistent with
Chacon, supra, ... "the Judge should consider all the evidence tending to show
improper motivation, including that of disparate treatment of the miner." In
a footnote, 24 FMSHRC at 356, n. 6, the Commission indicated that the initial
finding that Kissner lacked knowledge regarding Garcia's protected activity and
animus towards him is not dispositive of the prima facie case issue. The
Commission also stated that "... before the Judge again reaches a conclusion
regarding the strength of this rebuttal evidence, we would expect him to consider
the Secretary's arguments for imputing McCarroll's knowledge of and animus toward
Garcia's safety complaints to Bjustrom or Kissner." Id.
III. DISCUSSION
The Commission, 24 FMSHRC supra, at 355, held that in the initial decision
the analysis of motivation was incomplete under Chacon, supra, and that, "consistent
with Chacon, supra, the Judge should consider all the evidence tending to show
improper motivation, including that of disparate treatment of the miner". In
compliance with this holding and directive, cognizance is taken of the
following indicia of discriminatory intent which had been initially listed in
Chacon, supra, as follows: (1) knowledge of the protected activity; (2) hostility
or animus toward protected activity; (3) coincidence in time between the protected
activity and the adverse activity; and (4) disparate treatment of the
complainant.
A. Knowledge of the Protected Activity, and Hostility or Animus Toward
Protected Activities
Garcia engaged in the following protected activities while an employee of MWCA
prior to the time it was purchased by Colorado Lava, a totally independent entity:
(1) Garcia informed his supervisor, Earl Gonzales, that a loader was tagged out
because the brake did not work, and (2) Garcia told McCarroll, another supervisor
at MWCA, that the loader had been tagged out because of problems with the parking
brake. These two individuals were the only agents of MWCA who had actual knowledge
of Garcia's protected activities. There is no direct evidence that any of Colorado
Lava's agents had actual knowledge of these specific activities. The only
individual who had expressed any animus towards Garcia was McCarroll. These
expressions of animus occurred while both were employees of MWCA, prior to its
purchase by Colorado Lava. Bjustrom, who has an 80 percent ownership interest in
Colorado Lava, had the ultimate authority to hire former employees from MWCA. However,
he delegated that decision to Terry Kissner who subsequently interviewed employees
of UMWA, and did not select Garcia. I observed Bjustrom's demeanor while testifying
and found him to be a credible witness. Accordingly, I accept his testimony that,
prior to the time Colorado purchased MWCA, McCarroll had told him that Garcia was a
weak employee, not a good operator, and had filed grievances, but this information
did not have any bearing on the decision on June 5 regarding which employees of
MWCA would be hired by Colorado Lava. Further, based on observations of Bjustrom's
demeanor, I find his testimony credible that he not did take any part in the
hiring decision, and that it was Kissner who made the final decision in that regard,
and that he had delegated this task to Kissner, as the latter had done the hiring
for him (Bjustrom), for eight years.
I also carefully observed the demeanor of Kissner, and found him to be a
credible witness. I therefore accept his testimony that he did not have any
knowledge of the applicants from MWCA before he interviewed them on June 5; and
that the only time he had talked to McCarroll prior to June 5 had to do with
ordering supplies. I also accept his testimony that he did not consult with
McCarroll before the interviews regarding the interviewees; did not consult with
McCarroll after the interviews; and that McCarroll not provide him with any
information regarding the interviewees. I therefore find, that Kissner alone took
the adverse action in not hiring Garcia on June 5, but that he did not have
knowledge of Garcia's prior protected activities. Neither he nor Bjustrom
manifested any animus toward Garcia prior to June 5.
B. Coincidence in Time Between the Protected Activity and the Adverse
Action
The protected activities engaged in by Garcia occurred in October 1999. It
was also on or about that time that McCarroll had expressed animus towards Garcia
relating to these protected activities. McCarroll indicated that he continued to
dislike Garcia. However, it is significant to note that no adverse action was taken
by MWCA against Garcia. Indeed, the adverse action that was taken subsequently by
Colorado Lava on June 6 was more that seven months subsequent to the dates Garcia
had engaged in the protected activities. I thus find that the Secretary has not
established a sufficiently close coincidence in time between the protected activity
and the adverse action to support an inference of improper motivation.
C. Disparate Treatment of the Complainant.
As discussed above, based upon the findings of the Commission, which have become
the law of the case, I am constrained to find that it may be inferred that Garcia
was the subject of disparate treatment.
D. Conclusions
The posture of this case before the Commission was whether Colorado Lava's motion
to dismiss, made at the conclusion of Complainant's case-in-chief should have been
granted. The quantum of evidence sufficient to establish a prima facie case at this
point in a trial, is "[e]vidence which, standing alone and unexplained, would maintain
the proposition and warrant the conclusion to support which it is introduced. An
inference ... until proof can be obtained or produced to overcome the inference."
Black's Law Dictionary, (6th ed., 1990), at 1190. As set forth by the Sixth Circuit,
in order to establish a causal link, a plaintiff is required to proffer evidence
sufficient to raise the inference that her protected activity was the likely reason
for the adverse action. EEOC v. Avery Dennison Corp. 104 F 3d 858, 861 (6th Cir.
1997), (quoting Zanders v. National R.R. Passenger Corp., 898 F 2d 1127, 1135 (6th
Cir. 1990), (quoting Cohen v. Fred Meyer, Inc., 686 F. 2d 793, 796, (9th Cir. 1982)).
However, in the case at bar, subsequent to the Commission's decision, Colorado
Lava elected to rest on the basis of testimony elicited from the Secretary's witnesses,
Bjustrom, Kissner, and McCarroll. Accordingly, at this stage of the proceedings,
since Respondent has adduced rebuttal evidence, in order to prevail the Secretary must
"....overcome the additional obstacle of [Respondent's] rebuttal and convincingly
demonstrate the existence of discrimination. At that stage, he not only must
present facts and evidence allowing inferences to be drawn in his favor, but also
must present a case that allows those inferences to be of significant force as to
overcome the [Respondent's] rebuttal or prove the rebuttal pretext" Id. In the same
fashion, it is established Commission case law that the Secretary has the ultimate
burden of proof of establishing discrimination under the Act. Secretary of behalf
of Robinette v. United Coal Co., 3 FMSHRC 803, 817 (1981), Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other
grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F 2d 1211 (3rd Cir. 1981).
Hence, in order to prevail herein, the Secretary must establish, by a preponderance
of the evidence, that the adverse action was motivated in any part by the protected
activities. Id.
In analyzing the indicia of discriminatory intent as set forth in Chacon, supra,
it might be inferred that Garcia did suffer some degree of disparate treatment. However,
I find that an inference of discriminatory intent, based on disparate treatment, to be
diluted to a high degree by the lack of knowledge of the protected activities and lack
of hostility or animus towards protected activity by Colorado Lava. In reaching this
conclusion I accord more weight to the direct testimony of Bjustrom and Kissner, having
found their testimony credible based upon their demeanor, rather than inferences to
be drawn regarding disparate treatment. I also note the lack of significant coincidence
in time between the protected activities and the adverse action. For these reasons I
find that the Secretary has failed to establish, by a preponderance of the evidence
(see Robinette, supra, Pasula, supra), that the adverse taken by Colorado Lava was
motivated in any part by Garcia's protected activities.
For all the above reasons, I find that the Secretary has failed to establish
that Garcia was discriminated against by Colorado Lava in violation of Section 105(c)
of the Act, and that accordingly this case shall be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution (Certified Mail)
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Blvd., 22nd Floor, West, Arlington, VA 22209-2247
Mark W. Nelson, Esq., Harris, Karstaedt, Jamison & Powers, PC, 282 Inverness
Drive South, Suite 400, Englewood, CO 80112-5816
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