FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                     1244 SPEER BOULEVARD #280
                       DENVER, CO 80204-3582
                   303-844-3577/FAX 303-844-5268

                         January 14, 2003

HAZEL OLSON,                     :      DISCRIMINATION PROCEEDING 
               Complainant       :
                                 :      Docket No. WEST 2002-302-D
                                 :      DENV CD 2001-01
                                 :
          v.                     :      Mine I.D. 48-01355
                                 :      North Rochelle Mine
TRITON COAL COMPANY,             :
               Respondent        :


            ORDER DENYING MOTION FOR SUMMARY DECISION

     On December 27, 2002, Triton Coal Company ("Triton") filed a motion for summary decision
in this case.   In the motion for summary decision, Triton maintains that its decision not to hire Hazel
Olson could not have been motivated by her protected activity at the Jacobs Ranch Mine because
Triton did not know about this protected activity.  The motion is supported by two affidavits and
deposition testimony.  Ms. Olson filed a response in which she states that two witnesses will contradict
the affidavit testimony presented by Triton.  Her response is supported by a copy of an interview
conducted by the Department of Labor's Mine Safety and Health Administration ("MSHA").

     The Commission's Procedural Rule at 29 C.F.R. § 2700.67(b) sets forth the grounds for
granting summary decision, as follows:

          A motion for summary decision shall be granted only if the entire
          record, including the pleadings, depositions, answers to
          interrogatories, admissions, and affidavits, shows:
          (1) That there is no genuine issue as to any material fact; and
          (2) That the moving party is entitled to summary decision as a matter
          of law.

The Commission has long recognized that summary decision is an "extraordinary procedure." 
Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981).  The Commission adopted the
Supreme Court's holding that summary judgment is authorized only "upon proper showings of the lack
of a genuine, triable issue of material fact."  Energy West Mining Co., 16 FMSHRC 1414, 1419
(July 1994) (quoting Celotex Corp v. Catrett, 477 U.S. 317, 327 (1986)). 

     After reviewing the entire record, I find that Triton did not establish that "there is no genuine
issue as to any material fact."  Because Ms. Olson is proceeding on her own behalf, the fact that her
statement is not contained in an affidavit should not be grounds for dismissal.  Ms. Olson states that
she has witnesses who will testify that she was not interviewed for a temporary position at the North
Rochelle Mine (the "mine") because she had filed safety and discrimination complaints at the Jacobs
Ranch Mine operated by another company in northeast Wyoming.  She states that she has evidence
that Debbie Noonan, a Triton employee, was well aware of her protected activity.  She also states that
Charlotte Terry, Human Resources Manager for the mine, conferred with Ms. Noonan when deciding
whom to interview for temporary haul truck driver positions.  She states that a witness will testify that
when presented with Olson's resume, Terry immediately rejected it without reading or reviewing it.

     The Federal Mine Safety and Health Review Commission recognizes that it is very difficult to
establish "a motivational nexus between protected activity and the adverse action that is the subject of
the complaint."  Sec'y on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999). 
In determining whether a mine operator's adverse action was motivated by the miner's protected
activity, the judge must bear in mind that "direct evidence of motivation is rarely encountered; more
typically, the only available evidence is indirect."  Secretary of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other grounds, 709 F.2d 86
(D.C. Cir 1983).  "Intent is subjective and in many cases the discrimination can be proven only by the
use of circumstantial evidence."  Id. (citation omitted).  In Chacon, the Commission listed some of the
more common circumstantial indicia of discriminatory intent:  (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.  See also Hicks v. Cobra
Mining, Inc., 13 FMSHRC 523, 530 (April 1991).  In this case, Olson is alleging that the adverse
action was Triton's failure to hire her in spite of her 20-years experience in the mining industry.   If she
can present credible evidence to support what she has offered in her response to Triton's motion, she
may be able to establish a prima facie case of discrimination.  Key facts at the heart of this case are in
dispute.

     For the reasons set forth above, Triton's motion for summary decision is DENIED.  The
motion fails to establish that there is no genuine issue as to any material fact or that Triton is entitled to
summary decision as a matter of law.  




                              Richard W. Manning
                              Administrative Law Judge
                              


Distribution:


Ms. Hazel Olson, 16 Whoop-Up Canyon Road, Newcastle, WY 82701-9702 

Bradley T Cave, Esq., Holland & Hart, P.O. Box 1347, Cheyenne, WY 82003-1347


RWM