.
ASARCO INCORPORATED
WEST 2001-308-DM
March 20, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
March 20, 2002
DANIEL HERNANDEZ, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. WEST 2001-308-DM
: RM MD 01-03
:
ASARCO INCORPORATED, : Mission Complex
Respondent :
: Mine ID 02-00855
DECISION
Appearances: Daniel Hernandez, Complainant, Perris, California,
pro se;
Willa B. Perlmutter, Esq., Patton Boggs LLP,
Washington, DC, for Respondent.
Before: Judge Bulluck
This proceeding is before me on a Complaint of
Discrimination filed by Daniel Hernandez against ASARCO,
Incorporated ("ASARCO"), under section 105(c) of the Federal Mine
Safety and Health Act of 1977("the Act"), 30 U.S.C. � 815(c).
The complaint alleges unlawful discharge from employment in
retaliation for having made safety complaints to ASARCO.
Hernandez filed his discrimination complaint with the Mine
Safety and Health Administration ("MSHA") pursuant to section
105(c)(2) of the Act, 30 U.S.C. � 815(c)(2), on October 31, 2000
(Ex. R-8).[1] On March 1, 2001, MSHA notified Hernandez that,
based on its investigation of the allegations, it had concluded
that a violation of section 105(c) had not occurred (Ex. R-11).
Hernandez, pro se, initiated this proceeding before the
Commission on March 30, 2001, under section 105(c)(3) of the Act,
30 U.S.C. � 815(c)(3).[2]
A hearing was held in Tucson, Arizona. The parties
presented testimony and documentary evidence, and filed post-
hearing briefs. For the reasons set forth below, I conclude that
Hernandez failed to prove that he engaged in activity protected
by the Act and that, assuming, arguendo, that he had, ASARCO
discharged him for reasons that are unrelated to any protected
activity.
I. Stipulations
The parties stipulated to the following facts:
1. On August 15, 1995, the Complainant was hired to work at
ASARCO Mission underground mine.
2. On February 26, 1997, the Complainant voluntarily left
his job at ASARCO mission underground mine for personal reasons.
3. On September 2, 2000, the Complainant was rehired by
ASARCO Mission underground mine.
4. The Complainant was fired from his job on October 18,
2000.
5. When the Complainant was fired from his job at ASARCO
Mission underground mine, he was still in the probationary
period.
II. Factual Background
ASARCO's Mission Complex is an underground copper mine.
Daniel Hernandez worked at the Mission mine as a driller from
August 15, 1995, until February 26, 1997, when he quit his job
for personal reasons (TR. 6). Hernandez sought employment with
ASARCO a second time, was rehired as a jumbo (underground drill)
operator at the Mission mine, and worked in a probationary status
from September 2, 2000, until October 18, 2000, when he was
discharged, according to ASARCO, for "improper workplace
inspection and unacceptable drilling pattern" (Tr. 354; Ex. R-
26).
Hernandez last worked during the swing shift of October 17,
2000, under the charge of shifter (underground shift supervisor)
Roger Sparby, who made routine rounds to his crew's individual
headings every hour or so, to ensure that work was progressing
smoothly and to assist his workers where necessary (Tr. 11-16,
313-15). Hernandez started the shift working in one heading,
then later drilled in the 197 East/18 West heading with Sparby
(Tr. 321, 335-36). While in the process of drilling, a misfire
was found behind the heading, approximately 100 feet from
Hernandez's location on the jumbo, which was blasted later at the
end of the shift when blasting is typically performed (Tr. 321-
25, 336-37). Two hours before the end of the shift, Sparby last
checked Hernandez's heading where, because Hernandez was in the
process of rattling down prior to drilling, there was "a lot of
loose," and Sparby summoned a mechanic to assist Hernandez with
problems he was having with the jumbo's hydraulic system (Tr.
327-29, 335, 338, 341-43). When the following crew reported at
midnight, graveyard shift supervisor Louis Marrujo dangered-off
Hernandez's heading, prohibiting further entry pending
investigation by senior underground supervisor Gary Torres during
the day shift (Tr. 295, 370-72). Based on Marrujo's report and
accompanying diagram of unsafe conditions and improper drill
pattern, Torres and day shifter Dennis Dippel inspected the
physical condition of the dangered-off heading (Tr. 285, 287-92,
373-75, 387-88; Ex. R-25). Consequently, in close proximity to
the on-coming swing shift at 4:00 p.m. on October 18th, Torres
submitted his notes and photographs of the heading to mine
manager Pete Graham (Tr. 388; Ex. R-26, R-27). When Hernandez
reported for duty on the swing shift, Torres summoned him to the
office, showed him the photographs of his work area, and
discussed its unsafe condition (Tr. 55, 388). Hernandez denied
having left his heading as depicted in the photographs and
alleged that Marrujo's graveyard crew had "set him up" by
sabotaging his heading (Tr. 17-19, 92-93, 389-90). According to
Torres, it was then that he decided to fire Hernandez (Tr. 390).
III. Findings of Fact and Conclusions of Law
In order to establish a prima facie case of discrimination
under section 105(c) of the Act,[3] a complaining miner bears the
burden of establishing that 1) he engaged in protected activity
and 2) the adverse action of which he complained was motivated
in any part by the protected activity. Secretary of Labor 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 (3d Cir. 1981); Secretary of
Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC
803 (April 1981); Secretary of Labor on behalf of Jenkins v.
Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 1984); Secretary
of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508
(November 1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
The operator may rebut the prima facie case by showing 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); Donovan v. Stafford Const. 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).
Hernandez has failed to meet the first step in establishing
a prima facie case of discrimination. He has not established that
he engaged in protected activity, despite alleging at different
stages in this proceeding that he had made safety complaints to
management concerning working around misfires, rattling (checking
ground) and scaling (bringing down loose ground) with the jumbo
drill, moving heavy hoses underground, and drug usage by miners
underground.
Looking first to Hernandez's discrimination complaint of
October 31,2000, he described having drilled "across the drift
from a misfire half the night" on the swing shift of October
17th, but admits that he "never got the chance to express
[himself]" because on October 18th, Gary Torres confronted him
with evidence that he had left his heading in an unsafe condition
and failed to drill the burn[4] properly, then fired him (Ex. R-
8). In essence, Hernandez alleged that the graveyard crew had
sabotaged his heading "to make it look like [he] had left bad
ground for the next shift" (Ex. R-8). It was not until well
after his termination, when forwarding his Complaint to the
Commission pursuant to section 105(c)(3), that Hernandez alleged
in his cover letter of March 26, 2001, that he had been required
to "bar down" (scale) with the jumbo, despite complaints to his
supervisor that that method of ground control endangered his
safety. Later still, during his deposition, Hernandez raised for
the first time the complaint of having been required to carry
heavy hoses underground (Tr. 99-103).
At hearing, Hernandez testified that he had first complained
about working around misfires to day shifter Dennis Dippel and
alleviated the problem himself rather than refusing to drill in
that environment, but was unable to specify when this incident
occurred and admitted that he had failed to document it (Tr. 7-
11, 20-21; see 85-86). Dennis Dippel testified that he did not
remember Hernandez ever working under his supervision during
Hernandez's second stint at Mission underground, that Hernandez
had never made any safety complaints to him, and that he had no
involvement in the decision to terminate Hernandez (Tr. 275, 293,
298-301). Respecting Hernandez's last shift on October 17th,
Gary Torres testified that, when confronted with having left a
dangerous heading, Hernandez accused other miners of deliberately
making it unsafe, and that Hernandez never complained about a
misfire or any other safety issue (Tr. 389-92, 403). Hernandez,
himself, conceded in testimony that he had never spoken to Torres
about misfires (Tr. 51-56). Swing shift supervisor Roger
Sparby, on duty October 17th, testified that the misfire never
posed a danger because it was discovered a safe distance of 100
feet away from where Hernandez was drilling and no one else was
working in the area, and that the misfire was blasted at the end
of the shift to avoid exposing the crew to dust and smoke in
the middle of the shift (Tr. 321-325). Sparby further testified
that Hernandez had not made any safety complaints to him (Tr.
326). Hernandez produced no evidence that would substantiate a
misfire incident involving Dippel, and he failed to prove that
his involvement in discovering and detonating the misfire on
Sparby's watch amounted to a complaint of unsafe working
conditions. Moreover, in light of the fact that Hernandez never
refused to work under the alleged unsafe conditions, never
documented the conditions in personal notes or on time cards,[5]
nor complained to Torres when the shift ended or any reasonable
time thereafter, his testimony falls substantially short of
rebutting the credible cumulative testimony of ASARCO's
witnesses, including the union steward, safety engineer and
human resource manager, that Hernandez never complained about
misfires or any other safety issues while he was working in the
probationary status.
Hernandez, save his bare allegation in responses to ASARCO's
discovery requests, has failed to establish that he made safety
complaints about rattling and scaling with the jumbo drill prior
to his termination (Tr. 70-82). Furthermore, he conceded,
through deposition and hearing testimony, that he had never
complained to management about being required to haul heavy hoses
around the mine (Tr. 100-03). Similarly, Hernandez has failed to
establish that he raised a safety complaint respecting drug usage
underground, prior to his termination. The evidence indicates
that he faxed a complaint to the Arizona State Mine Inspector on
October 19, 2000, implicating, among others, Marrujo's crew in
illegal sales and on-the-job cocaine and methamphetamine usage,
but he admitted in testimony that he had not become aware of this
activity until after he was fired
(Tr. 104-06).
ASARCO has consistently maintained that Hernandez never
engaged in protected activity, and has sought to cast his
character in a negative light and his claims as after-the-fact
fabrications of a system-savvy litigant, designed to construct a
cause of action. One glaring instance of Hernandez's lack of
truthfulness and manipulation of the system is illustrated by the
Order of February 29, 1996, wherein Commission Judge Richard
Manning granted a continuance in the discrimination proceeding
Hernandez had brought against American Girl Mine, based upon
Hernandez's representation to the judge that his mother's recent
death had prevented him from "turning his attention to his case"
(Ex. R-1). It is clear from the instant record, including
Hernandez's own testimony, that his mother is "alive and kicking"
(Tr. 27-28). Moreover, Hernandez's discrimination complaint
against American Girl, also regarding termination, makes it
evident that he is knowledgeable as to his rights and protections
under the Act and how to proceed with a claim (Tr. 57-60, 86-89).
Judge Manning clearly explained miners' rights under the Act in
his dismissal of Hernandez's discrimination claim for, in part,
his failure to allege that he had engaged in protected activity
(Ex. R-7). 18 FMSHRC 1182 (July 1996) (ALJ). While Hernandez's
credibility has been seriously undermined by inconsistencies in
his testimony and statements so far askew a plausible sequence of
events as to be unworthy of credence, it is unnecessary to focus
on his character because, other than the evolution of his bare
assertions subsequent to MSHA's investigation of his Complaint,
he has failed to produce any evidence supportive of his claim
that he engaged in protected activity.
Assuming, arguendo, that Hernandez had established a prima
facie case, ASARCO has rebutted his case by proving that
Hernandez was discharged for legitimate, business-related
reasons, entirely unrelated to any alleged protected activity.
Credible evidence, unrebutted by Hernandez, clearly establishes
that Hernandez had problems maintaining his heading in a safe
condition and following ASARCO's required drill pattern during
his first period of employment, which persisted without
improvement after he was rehired. Union Steward Fred Ambrose
testified that Hernandez had been known to leave his heading in
need of scaling--unsafe for Ambrose to drill on the subsequent
shift, and that other miners had complained that Hernandez's
holes were drilled crooked and out of line ((Tr. 171, 176-78,
185, 189). Dennis Dippel testified that among his crew,
Hernandez had a reputation of leaving his headings unsafe, and
that Hernandez's drill pattern was "really bad" (Tr. 276-84).
Roger Sparby testified that Hernandez left bad ground conditions
in his headings, not conducive to safe drilling, and that
Hernandez would not drill the right pattern (Tr. 315-17).
Furthermore, Sparby testified that, in his opinion, Hernandez was
trying to get too much done without taking care of his
surroundings, and that while he had spoken to Hernandez on
several occasions about workplace inspections and following the
company's standard drill pattern, he had seen no improvement (Tr.
318-20, 330-31). Gary Torres testified that Hernandez was
rehired under the condition that he would adhere to standard
operating procedures by performing adequate workplace inspections
and drilling according to the mandated pattern, but that he
personally observed Hernandez's non-compliance in both areas
(Tr. 350-52, 356-69, 373-75; see 122-27; Ex. R-21). Torres noted
that Hernandez persisted in drilling the rounds "his way,"
despite the fact that Torres had drawn him a diagram of the
company's standard drill pattern which Hernandez carried around
in his pocket (Tr. 370; see 108-117; Ex. R-25). Safety engineer
George Zugel testified that engineering support and management
input are involved in planning the specific drill pattern for a
particular mine, and that there is no deviation from the standard
drill pattern at Mission underground (Tr. 232-33). Zugel also
attested to personally observing unsatisfactory performance by
Hernandez, including failure to take down loose rock (Tr. 237-43;
Ex. R-25).
By his own testimony, Hernandez admitted some responsibility
for ground conditions in his heading on October 17th, by
suggesting that appropriate discipline would have been time off,
but concluded that "being that [he] was on probation, they didn't
care-they were happy to see [him] leave" (Tr. 97). It is clear,
based on the record in its entirety, that Hernandez's persistent
non-conformance with standard operating procedures was the sole
motivation for ASARCO's decision to terminate his employment, and
that he would have been terminated for performance deficiencies
irrespective of any protected activity.
**FOOTNOTES**
[1]:Section 105(c)(2) provides, in pertinent part, that "Any
miner . . . who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in
violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging
such discrimination."
[2]:Section 105(c)(3) provides, in pertinent part, that "If
the Secretary, upon investigation, determines that the provisions
of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's
determination, to file an action in his own behalf before the
Commission . . . ."
[3]:Section 105(c)(1) of the Act 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 rights
afforded by this Act."
[4]:The "burn," a series of holes in a drill pattern, is
where the explosives start to "pull" or break out the center
rock, causing surrounding rock to break into the center, so that
the face breaks down in an orderly fashion (Tr. 180-84).
[5]:Hernandez's explanation for his failure to document the
alleged safety complaints--that he was on probation and feared
that "stirring up" things would get him fired--is totally
implausible, since, according to him, fear of termination did not
prevent him from rocking the boat by verbally complaining (see
Tr. 85-86, 90-91).
ORDER
Accordingly, inasmuch as Hernandez has failed to establish,
by a preponderance of the evidence, that he was discharged for
engaging in activity protected under the Act, it is ORDERED that
the Complaint of Discrimination of Daniel Hernandez against
ASARCO, Incorporated, under section 105(c) of the Act, is
DISMISSED.
Jacqueline R. Bulluck
Administrative Law Judge
Distribution: (Certified Mail)
Mr. Daniel Hernandez, 3750 Province Way, Perris, CA 92571
Willa B. Perlmutter, Esq., Patton Boggs LLP, 2550 M Street, NW,
Washington, DC 20037-1350
/nt