<DOC>
[DOCID: f:wv200031.wais]
DURBIN COAL, INC.
July 24, 2001
WEVA 2000-31-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 24, 2001
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2000-31-D
ON BEHALF OF WILLIAM JENKINS : HOPE CD 99-10
AND MICHAEL MAHON, :
Complainants : Mine No. 1
v. : Mine ID 46-08102
:
DURBIN COAL, INC., :
Respondent :
DECISION
Appearances: M. Yusuf M. Mohamed, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Complainants;
David J. Farber, Esq., Patton Boggs, LLP.,
Washington, D.C. and John Kirk, Esq., Inez,
Kentucky, for Respondent
Before: Judge Zielinski
This matter is before me on a complaint of discrimination
filed by the Secretary on behalf of William Jenkins and Michael
Mahon pursuant to section 105(c)(2) of the Federal Mine Safety
and Health Act of 1977 (the "Act"). 30 U.S.C. � 815(c)(2). The
complaint seeks an order declaring that Respondent, Durbin Coal,
Inc., discriminated against Jenkins and Mahon and other relief
including back pay and benefits, as well as a civil penalty in
the proposed amount of $12,000.00. A hearing was held in Inez,
Kentucky on December 5, 2000 and concluded on January 30, 2001,
and the parties submitted briefs following receipt of the
transcript. For the reasons set forth below, I find that
Respondent did not discriminate against Jenkins and Mahon in
violation of the Act.
Findings of Fact
Jenkins and Mahon worked the second shift at Durbin's
underground coal mine until their employment ended on March 2,
1999. Whether they voluntarily left their jobs or were
terminated by Respondent is hotly contested. Jenkins was a
shuttle-car operator. He had worked at Durbin's mine twice in
the past and over the last ten years had worked at various times
for Universal Coal, a contractor that provided labor to a number
of mines. Mahon operated a roof bolting machine, or "pinner."
He had worked at Durbin's mine approximately six months and had
been employed for over three years before that at another mine
that was co-owned by Carl Kirk, who was also a co-owner of
Durbin. Jenkins and Mahon were related as "half brothers," born
of the same mother, and both men were considered good employees
who were capable of operating a variety of mining equipment and
performing whatever tasks were needed.
In early 1999, Durbin was experiencing what it viewed as a
high number of inspections by the Secretary's Mine Safety and
Health Administration (MSHA) prompted by confidential, phoned-in
complaints, commonly referred to as "code-a-phone" complaints.
Miners were not raising safety issues with management and MSHA
inspectors rarely found the conditions complained of. Kirk had
visited the MSHA district office to discuss the complaints
because their frequency was disrupting operations. He was
advised by MSHA officials that the number and lack of merit of
the complaints was a concern to them also because it resulted in
a lot of "wasted time" on inspections. MSHA officials eventually
went to the mine, met with the miners and encouraged them to
raise safety issues with management in the first instance and to
make code-a-phone complaints if management did not satisfactorily
address the problem. This had little impact on the frequency and
nature of the complaints.
On February 26, 1999, at about 2:00 p.m., Edward Paynter, an
MSHA inspector, responded to Durbin's mine to conduct an
inspection regarding a code-a-phone complaint that had been
transcribed and forwarded by facsimile to his office the day
before. The complaint was about "deep cuts and dust" and bore a
date and time notation at the top left corner of "2/25/99 14:51."
When he showed the brief complaint to Forest Newsome, Durbin's
superintendent, he appeared somewhat angry and inquired if
Paynter knew who made the complaint. When he received a negative
response, he stated that he knew who it was, apparently basing
his determination on the noted time of 14:51, or 2:51 p.m.[1]
Paynter told him that the notation indicated when the copy of the
complaint form had been transmitted by facsimile to their office,
not necessarily the time of the call. Paynter met with the
miners on the first and second shifts, and requested additional
information in order to properly investigate the complaint. He
told the men that if they wanted help from MSHA they would have
to be willing to provide more information and that complaints
should not be used as pranks or to vent frustrations. None of
the miners present volunteered additional information. Paynter
issued dust sampling pumps to the underground miners and went
underground with them to conduct the inspection and monitor the
dust sampling. He did not find evidence of deep cuts and the
dust sampling results, returned the next day, were within
acceptable limits.
Billy Williams, a second shift miner, testified that Newsome
had told him that the complaint initiator was likely one of the
"two Billy's" working the second shift because they were the only
ones who had raised concerns about dust. However, Newsome denied
that the other "Billy," William Jenkins, had complained about
dust and Jenkins, himself, also denied making such complaints and
stated only that he might have said something about ventilation
or getting line curtain installed sometime in the past. Newsome
had remarked, in the presence of a few miners, that he would give
$1,000 to know who was making the code-a-phone complaints.
However, there is no indication that anyone took this "offer"
seriously. David Runyon, an electrician and mechanic, heard of
the remark and jokingly said they could turn him in and split the
$1,000 if they could find anyone to pay it. Jenkins too laughed
it off when he heard about it.
On March 1, 1999, Mahon reported to work to find that
someone had taped his pliers together and written the word "rat"
on his belt. He took it as a joke, consistent with similar
pranks that the miners perpetrated on each other, though after
learning of the February 26 inspection, it occurred to him that
the word "rat" may have been a reference to the person who had
called in the complaint. Mahon told Newsome about it, and he
also took it as an unremarkable prank. When Mahon later made a
joking comment that he was a rat and would report his foreman's
efforts to get the shift started a few minutes early, he
perceived that Newsome, who was in an adjoining office, "slammed"
the door.
At the time, Durbin was experiencing unexplained losses of
equipment and supplies, which it was suspected were being stolen
from the mine site, possibly by employees. Kirk monitored costs
closely and had noticed an unusual increase in expenditures for
bits for continuous mining and roof bolting machines, which he
thought also might be related to the theft problem. He had
instructed his mine superintendent, Newsome, and the person who
handled supplies, Richard Mollette, to tighten up controls on
supplies, including specifically pinner bits, and generally keep
the supply room locked.
On March 2, 1999, Jenkins and Mahon arrived for work at the
normal time, about 2:00 p.m.. Mahon rode to work in Jenkins'
pickup truck, which had an open bed and a closed but unlocked
toolbox immediately behind the cab. Mollette, who was in the
supply room of the mine's office trailers, heard a noise like
someone tossing something into the bed of a truck and looked out
to see Jenkins returning from the area of the truck. He finished
working with the supplies and told Newsome about it after the
second shift men had gone underground. Newsome decided to
investigate. He, Mollette and Jeffrey Farris, a mine foreman,
went to Jenkins' truck and looked into the bed and through the
windows into the cab. They did not see anything unusual. When
Newsome lifted the top of the toolbox, however, he saw boxes
containing roof bolter bits which were the same type of bits
used by Durbin, some of which were wired together in the same
manner that Mollette prepared them for Durbin's roof bolter
operators. They counted 135 bits in the boxes. Newsome and
Mollette felt that the bits belonged to Durbin.
Growing concerned about whether their search of the truck
was legal, Farris called the West Virginia State Police post and
was advised that the search was likely illegal and that the
matter should be handled administratively. Newsome called Kirk
and told him what he had found. Kirk happened to be en route to
the mine site to deliver some supplies to replace items that had
been "lost" from the mine. He advised that he would be at the
mine site in about fifteen minutes at which time they would
discuss what to do. When he arrived, he and Newsome discussed
the issues and Kirk advised Newsome to talk to Jenkins and Mahon,
advise them what had been found and see what they had to say
about it. He cautioned that they should not be accused of
anything, just questioned, and told Newsome to have witnesses
present for the conversation. Newsome wanted to do it before he
left work, rather than wait until the end of the second shift,
and Kirk stated that he could call the men out during the shift
and talk to them. Kirk then left the mine site.
Newsome called down into the mine and spoke with David
Runyon and told him that Jenkins and Mahon were needed on the
surface. David Runyon told Frank Runyon, the foreman, that
Jenkins and Mahon were needed on the surface and that he would
give them a ride out of the mine in a mantrip. Although Newsome
did not say anything about an emergency at home, it was unusual
for miners to be called out of the mine during a shift and the
calling out of these related miners raised the possibility of an
emergency at home, possibly involving their mother. Frank Runyon
likely included a comment to the effect - "I don't know whether
there's an emergency at home, or what" - when he told Jenkins
and Mahon to report to the surface. The trip to the surface took
approximately 30 minutes, during which Jenkins and Mahon were
very concerned about a possible emergency involving their
families.
When they got to the surface, Jenkins dropped his gear into
his truck and proceeded to change clothes. Mahon went to use the
phone in the office to call home. Newsome interrupted him,
saying: "There is nothing wrong. I just want to talk to you."
He told Mahon that pinner bits were found in the truck and he
asked where they came from. Mahon became angry and responded
that if there were bits in the truck they belonged to his
brother, Kip Mahon. He protested that Durbin had no business
searching his brother's truck and that Jenkins would be angry
about it. Jenkins came into the room and Mahon told him there
was nothing wrong at home and that Newsome had found pinner bits
in his truck and wanted to know where they came from. Jenkins
became very upset and cursed Newsome for searching his truck. He
also stated that if there were bits in the truck that they
belonged to their brother Kip Mahon. Both men indicated that
their brother, Kip, had asked them to try and sell some pinner
bits a week or two before and speculated that Kip may have placed
the bits in the truck over the weekend, without their knowledge.
They had previously, however, indicated to another miner, Billy
Williams, that they believed that Kip had obtained the bits
illegally and were aware that the bits were in the truck. I find
that Jenkins and Mahon knew, on March 2, 1999, that the bits were
in the truck and that they believed that their brother Kip had
stolen the bits.
There was a very heated exchange between Jenkins and Mahon
and Newsome, including much cursing, primarily by Jenkins and
Mahon. Jenkins was more angry than Mahon. Jenkins asked if they
were fired, and Newsome responded that he had not fired anybody.
Mahon went out to the truck to see if the bits were still there.
Upon returning, he encountered Jenkins leaving the office trailer
and was told by him that Kirk didn't need them anymore. Both men
got into the truck and left the mine. A few minutes later they
returned to get their belongings. Jenkins stated that he
believed that the incident was not about bits but was because of
safety complaints that Durbin suspected he had made. Newsome
denied that the incident had anything to do with safety
complaints. Mahon requested that Newsome provide him with a
"fired slip," documentation of the termination of their
employment, and Newsome indicated that he would have one for them
the next day. However, no such documentation was supplied.
The following day, Jewell Mahon, Michael's wife, called
Newsome inquiring about final pay checks for the two men, noting
that when men are fired they should be paid the next day.
Newsome responded that the men were not fired, they had quit.
She responded that if they weren't fired, then they could report
for their regular shift, to which Newsome responded that he
didn't want them back on mine property. When Paynter returned
with the negative dust sample analysis on March 3, 1999, Newsome
remarked that he thought that he had gotten rid of his problem.
Paynter did not know wether that was a reference to the thefts or
the complaints. Records maintained by Durbin, which appear to
have been filled out and executed on March 2, 1999, by Newsome
and Farris, note that both Complainants "got mad and quit" and
that they would not be hired back. A personnel record maintained
by Mahon Enterprises[2] reflects that Mahon "walked off the job
when the person he rode with was asked about some items in the
back of his truck" and notes the reasons for the action as
"Dissatisfied" and "Personal reasons."[3] Mahon claimed
unemployment benefits and a statement he gave on March 9, 1999,
was essentially consistent with his allegations. However, at a
subsequent "predetermination hearing" he apparently stated that
Newsome responded "I don't know" when Mahon asked if he was being
fired.[4] Newsome told several people after the fact, that
Jenkins and Mahon had quit. Although, he also told Paynter that
they had been fired.
In October of 1999, Kirk's then superintendent James Fain,
indicated that he wanted to hire Mahon and inquired whether Kirk
had any objection. Kirk responded that Fain was in charge and he
could hire whoever he wanted to, that he had no objection to
hiring Mahon. Kirk also testified that he felt that the incident
had gotten out of control, reached an unfortunate result, and
that he likely would not have objected to Jenkins being rehired.
Mahon voluntarily left employment at Durbin's mine in February of
2000. Aside from Mahon's brief period of re-employment, neither
Jenkins nor Mahon has since worked at a mine in which Kirk had an
ownership interest.
Conclusions of Law - Further Factual Findings
A complainant alleging discrimination under the Act
typically establishes a prima facie case by presenting evidence
sufficient to support a conclusion that he engaged in protected
activity and suffered adverse action motivated in any part by
that activity. See Driessen v. Nevada Goldfields, Inc., 20
FMSHRC 324, 328 (Apr. 1998); Sec'y of Labor 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 (3d Cir. 1981); Sec'y of Labor on behalf of Robinette
v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The
operator my rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
way motivated by protected activity. See Robinette, 3 FMSHRC at
818 n. 20. 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 817-18; Pasula, 2 FMSHRC at
2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813
F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette
test).
Complainants here do not allege that they engaged in
protected activity.[5] Rather, they contend that they were
fired, or constructively discharged, because Respondent believed,
or suspected, that they had engaged in protected activity, i.e.,
making code-a-phone complaints to MSHA. Their allegations state
a viable claim of discrimination under the Act. Sec'y on behalf
of Moses v. Whitley Development Corp., 4 FMSHRC 1475 (1982), pet.
for rev. den., Whitley Development Corp. v. FMSHRC, 770 F.2d 168
(6th Cir. 1985) (table). In Moses, the Commission held that
"discrimination based upon a suspicion or belief that a miner has
engaged in protected activity, even though, in fact, he has not,
is proscribed by section 105(c)(1)." Id. at 1480. Complainants
further allege that they were falsely accused of stealing company
property as a pretext for Respondent's discriminatory action.
While there is evidence that Durbin may have suspected that
Jenkins and/or Mahon had made code-a-phone complaints, I find
that they left their employment in a fit of anger after being
questioned about the pinner bits found in Jenkins' truck. They
suffered no adverse action, i.e., their employment was not
terminated, either actually or constructively, by Durbin. The
Commission has made clear that adverse action is an essential
element of a discrimination claimant's case, and in the absence
of adverse action no finding of discrimination can be made.
Dolan v. F & E Erection Co., 22 FMSHRC 171, 175 (Feb. 2000). In
addition, I find that the incident that led to their departure
from Durbin was not precipitated, in any part, by suspicion that
they had engaged in protected activity.
Complainants have devoted considerable attention to the
"home emergency" issue, arguing that they are entitled to some
leeway for impulsive behavior prompted by Durbin's "wrongful
provocation," at least implying that Durbin deliberately decided
to use a home emergency as a ruse to get them out of the mine.
However, there would have been no need for Durbin to resort to a
ruse. Complainants were subject to directives by their
supervisors and presumably would have responded to an instruction
to report to the surface. While unusual, men are occasionally
called out of a mine, sometimes for unremarkable reasons, such as
a need to move a vehicle. That said, those involved in
responding to Newsome's request to bring the men out speculated
that there might be something wrong at home. Frank Runyon and
David Runyon admitted that the subject crossed their minds. The
concern was verbalized, at least to the extent of an innocent
comment by Frank Runyon to the effect: "I don't know if it's an
emergency at home, or what." It would also have been reasonable
for Jenkins and Mahon to conclude that they were likely being
called out because of a home emergency. I find that both Jenkins
and Mahon believed that the reason they were being called to the
surface was some emergency at home, possibly related to their
mother's health.[6] However, their belief was not the result of
any statements by Durbin that there was, in fact, such an
emergency. Nor did any Durbin official intend to, or, take any
actions to mislead or provoke Complainants in the manner in which
they were called out of the mine.
The real significance of the "home emergency" issue is its
impact on the ensuing events. Complainants' feeling that they
had been led, or allowed, to believe during the lengthy ride out
of the mine that there was an emergency involving their families
primed their reaction to being questioned about the pinner bits
discovered in the truck. Their outrage at the search of the
vehicle and implicit accusation of stealing company property
resulted in an extremely hostile reaction to Newsome's inquiries.
There was a very heated discussion, in which Complainants loudly
cursed Newsome. Newsome, no doubt, reacted emotionally to
Complainants' verbal assault. He noted that the Complainants
would not be hired back on Durbin's records and gruffly told Mrs.
Mahon the following day that he did not want them back on mine
property. However, I credit his testimony and that of other
witnesses to the discussion that he remained considerably more in
control than the Complainants and was surprised by their reaction
to his inquiry. I credit Newsome's testimony that he did not
fire the Complainants, which would have been inconsistent with
Kirk's instructions to him and find that the Complainants quit
their jobs in a fit of anger in reaction to the search of the
truck and the inquiry about the pinner bits.
The Secretary argues that a March 16, 1999, letter to Mahon
relative to continuation of his health benefits and citing a
"Qualifying Event Date of 02/28/99" evidences an intent by Durbin
to terminate his employment that preceded the March 2, 1999
incident. The Secretary contends, in essence, that Durbin had
determined to discharge Complainants on or prior to February 28,
1999, and that the events of March 2, 1999, were carefully
scripted to result in the termination of their employment. This
is far too great a leap to make from such a precarious platform.
There was no evidence establishing where Black Mineral, the
entity that wrote the letter, got the information it used to
prepare the letter, what that information was, or whether it had
any connection to Durbin.
The Secretary also questions the legitimacy of Durbin's
concerns about pinner bit expenditures and suspicion that bits
were being stolen. While it is correct that per-ton costs of
continuous miner bits were, at least in one report, grouped with
pinner bit costs and miner bit costs would be significantly
higher, there is virtually no dispute that Durbin had been
experiencing losses, or thefts, of equipment and supplies, such
as pinner bits. Even Mahon was aware that there had been
problems with thefts of supplies. I credit that testimony and
the testimony of Durbin officials and Mollette that they were
concerned about thefts and pinner bit expenditures and had taken
steps to more closely control and monitor bit usage.
Constructive Discharge
Complainants alternatively argue that they suffered adverse
action in that they were constructively discharged. As explained
in Dolan, supra, 22 FMSHRC at 176-77:
A constructive discharge is proven when a miner
engaged in protected activity shows that an operator
created or maintained conditions so intolerable that a
reasonable miner would have felt compelled to resign.
See, e.g., Simpson v. FMSHRC, 842 F.2d 453, 461-63
(D.C.Cir. 1988). * * * It is the operator's failure to
reasonably remedy such conditions that converts the
resignation into an adverse action. See Secretary of
Labor on behalf of Nantz v. Nally & Hamilton Enters.,
Inc., 16 FMSHRC 2208, 2210-13 (Nov. 1994) (affirming
conclusion of constructive discharge in the absence of
finding that operator deliberately created intolerable
conditions to provoke miner's resignation). The
question whether conditions are intolerable is "viewed
from the perspective of a reasonable employee alleging
such conditions." Secretary of Labor on behalf of
Bowling v. Mountain Top Trucking Co., 21 FMSHRC 265,
276 (Mar. 1999), [aff'd, 230 F.3d 1358 (6th Cir. 2000)
(table)]. * * * *
In cases involving claims of constructive
discharge, the Commission has first examined whether
the miner engaged in a protected work refusal, and then
whether the conditions faced by the miner constituted
intolerable conditions. See Bowling, 21 FMSHRC at 272-
81; Nantz, 16 FMSHRC at 2210-13. * * * * In order to be
protected, work refusals must be based upon the miner's
"good faith, reasonable belief in a hazardous
condition." Robinette, 3 FMSHRC at 812; accord Gilbert
v. FMSHRC, 866 F.2d 1433, 1439 (D.C.Cir. 1989). A good
faith belief "simply means honest belief that a hazard
exists." Robinette, 3 FMSHRC at 810. Consistent with
the requirement that the complainant establish a good
faith, reasonable belief in a hazard, "a miner refusing
work should ordinarily communicate, or at least attempt
to communicate, to some representative of the operator
his belief in the safety or health hazard at issue."
Sec'y of Labor on behalf of Dunmire v. Northern Coal
Co., 4 FMSHRC 126, 133 (Feb. 1982).
Once it is determined that a miner has expressed a
good faith, reasonable concern about safety, the
analysis shifts to an evaluation of whether the
operator addressed the miner's concern "in a way that
his fears reasonably should have been quelled."
Gilbert, 866 F.2d at 1441; see also Secretary of Labor
on behalf of Bush v. Union Carbide Co., 5 FMSHRC 993,
998-99 (June 1983); Thurman v. Queen Anne Coal Co., 10
FMSHRC 131, 135 (Feb. 1988), aff'd mem., 866 F.2d 431
(6th Cir. 1989). A miner's continuing refusal to work
may be deemed unreasonable after an operator has taken
reasonable steps to dissipate fears or ensure the
safety of the challenged task or condition. See Bush, 5
FMSHRC at 998-99.
Complainants' constructive discharge argument does not
conform to this analytical framework, either legally or
factually. The Secretary does not argue that the Complainants
engaged in a protected work refusal, perhaps because none of the
incidents prior to March 2, 1999, either individually or
collectively, posed any safety or health hazard. The
Complainants did not feel that they were subjected to a safety or
health hazard and did not even perceive any significant
objectionable condition in their employment. Obviously, they did
not communicate any such concern to Durbin. The incident that
precipitated their departure from Durbin, the questioning about
pinner bits, likewise cannot be characterized as a safety or
health hazard that would have justified a work refusal.
The Secretary argues that the totality of the conditions
amounted to intolerable conditions such that Complainants "could
not return to their jobs with any dignity."[7] The totality of
conditions includes; as to Mahon, the incident of his pliers
being taped, the word "rat" written on his belt and the incident
where Newsome supposedly slammed a door after hearing him joke
about being a rat; as to Jenkins, the comment that one of the
"two Billy's" was making the complaints; and, as to both, the
inquiry about the pinner bits. The Secretary contends that all
of these conditions were the product of a suspicion that
Complainants' had engaged in protected activity.
**FOOTNOTES**
[1]: The Secretary argues that Newsome's statement indicated
that he suspected that Mahon had made the complaint because he
was absent because of illness that day. However, it was not
established that Mahon was the only second shift miner absent
that day. Nor was it explained why a miner on another shift,
and/or who may have been absent that day, could not have made the
call.
[2]: Complainants' actual employer was Mahon Enterprises, a
contractor that provided labor for Durbin's mine. Durbin has
stipulated that it is an operator subject to the Act and is
responsible for any discrimination against Jenkins and Mahon.
[3]: These documents were exhibits to Carl Kirk's
deposition, which was admitted into evidence as Complainants' Ex.
32.
[4]: See, exhibit 3 to the Kirk deposition and Respondent's
Ex. 1.
[5]: While Complainant Jenkins had refused to operate a
shuttle car on which monitors had been bridged out, his actions
had not produced any adverse reaction by his foreman, Frank
Runyon, who appears supportive of both men. Complainants have
also made clear that their theory of liability is that they were
terminated because of an erroneous belief or suspicion that each
of them had engaged in the protected activity of making code-a-
phone complaints.
[6]: Their mother had been in a serious automobile accident
previously. Although it appears that she had largely recovered
from her injuries by that time, her health apparently was a
concern and was an issue that would have affected both men.
[7]: Secretary's Post Hearing Brief, at p. 20.
As noted above, none of the "conditions" that preceded the
March 2, 1999 incident were viewed as intolerable, or even
objectionable, by Complainants and they would not have been so
viewed by a reasonable employee. Nor could the events of March
2, 1999, be viewed as intolerable working conditions by a
reasonable employee, either standing alone or in combination with
prior events. Durbin was rightly concerned about missing and
stolen property and had a reasonable basis to call Complainants
out of the mine and question them. Whether they could have
remained at their jobs "with dignity" is not the test. They were
not unreasonably subjected to a safety or health hazard. Nor
were they subjected to conditions so intolerable that a
reasonable miner would have felt compelled to resign. Moreover,
as with the discharge allegation, I find that the conditions that
Complainants allege prompted them to leave their employment were
not, in any part, the result of unlawful motivation by Durbin,
i.e., they were not the result of any suspicion or knowledge that
either Complainant had engaged in protected activity.
Complaints of discrimination under Moses alleging
constructive discharge do not fit nicely into the analytical
framework described in Dolan. It is possible that the Commission
would sustain a discrimination allegation where an operator,
motivated by a suspicion that a miner had engaged in protected
activity, created objectively intolerable working conditions that
did not involve subjecting him to a safety or health hazard.
This is clearly not such a case.
The Bounty or Reward Statement
The Secretary additionally contends that Newsome's statement
that he would give $1,000 to know who was making the code-a-phone
complaints was, in itself, discrimination in violation of the
Act. The Secretary posits two theories for this contention; 1)
that the statement amounted to a policy of Durbin's that was
"facially discriminatory," relying on Swift v. Consolidation
Coal, Co., 16 FMSHRC 201 (Feb. 1994); and, 2) that the statement
was discriminatory under the traditional Pasula-Robinette test.
I find that the Swift analysis is inapplicable here in that
Newsome's statement was not a policy or program of Durbin's.
More significantly, there was no adverse action attributable to
the statement.
Under Swift, in order to establish that a business policy is
discriminatory on its face, "a complainant must show that the
explicit terms of the policy, apart from motivation or any
particular application, plainly interfere with Mine Act rights or
discriminate against a protected class." Swift, 16 FMSHRC at 206.
If a miner can establish that he suffered adverse action because
of a facially discriminatory policy, he will prevail in a
discrimination action under the Act, because "an operator may not
raise as a defense lack of discriminatory motivation or valid
business purpose in instituting the policy." Id.
Swift and similar "facially discriminatory" cases[8] deal
with formal policies or programs implemented by an operator that
did not directly target protected activity. Whether that
precedent applies to an isolated verbal statement like that at
issue here is questionable. If such a statement was construed as
a serious attempt to learn the identity of a miner making
confidential complaints of safety or health violations, an
operator responsible for it could hardly contest the unlawfulness
of the motivation or advance a valid business purpose for it.
There would appear to be no need to extend the "facially
discriminatory" theory of liability, with its elimination of
defenses, to situations that do not involve formal employment
policies. The traditional Pasula-Robinette analysis, which the
Secretary advances here, should provide an adequate remedy for a
discrimination claimant who has suffered adverse action in such
circumstances.
The Secretary argues that because Newsome was superintendent
of the mine, that his statement should be construed as a Durbin
policy and since it is facially discriminatory that Newsome's
"intention is irrelevant," that "such a statement is inherently
designed to chill" the exercise of Mine Act rights and that the
"result of making such a statement is predictable and
foreseeable."[9] This argument fails for several reasons.
Assuming that Newsome could make policy for Durbin, he had
no such intention when he made the "off-the-cuff" remark and
there is no direct evidence that anyone who heard the comment, or
heard about it, took it seriously or viewed it in the remotest
sense as a policy of Durbin's. Newsome's intention is relevant
to the analysis. While lack of discriminatory motive is not a
defense to an action premised upon a facially discriminatory
policy, Newsome's intent in making the statement, as well as the
manner and circumstances under which the statement was made, are
relevant to determining whether it constituted a facially
discriminatory policy and whether it resulted in any adverse
action. Newsome testified that, if he did make such a statement,
it was not serious and was made as an off-the-cuff remark. No
other witness to the statement testified. The Secretary's
argument concerning the statement is relegated to assessment of
the demeanor of one individual, who also did not testify, who
told other witnesses about the statement.[10] As noted above,
there is no evidence that the comment was made other than in jest
or that it was pursued or even widely circulated. I find that
the comment, while made, was no more than an off-hand remark
prompted by frustration with what was perceived as a persistent
pattern of groundless complaints resulting in disruptive
inspections. It was not an employment policy of Durbin's.
The Secretary's adverse action assertions related to the
statement are somewhat confusing. Her facially discriminatory
argument does not directly allege adverse action, suggesting that
she can prevail even in the absence of adverse action. Her
Pasula-Robinette argument is based upon adverse action suffered
by a protected class of miners, i.e., the presumed chilling
effect on their right to make safety and health complaints. Her
focus is on the two Complainants here. The First Amended
Complaint, as amended by Order dated March 8, 2001, prays for a
civil penalty "in the amount of $3,000.00 per occurrence, per
victim of discrimination, for a total of $12,000.00," i.e.,
$3,000.00 for the discrimination suffered by Jenkins and Mahon
related to their alleged discharge and $3,000.00 as to Jenkins
and Mahon related to the "reward" offer. However, there is no
evidence that Jenkins or Mahon, or any other miner, suffered
adverse action or felt that his rights under the Act were
interfered with because of the statement.[11] Jenkins did not
take the statement seriously when he was told about it. Mahon
did not testify about the statement and apparently never heard
about it. In the absence of adverse action, an essential element
of a discrimination claimant's case, Complainants cannot prevail.
Dolan, supra.
ORDER
Complainants suffered no adverse action. They were not
discharged either affirmatively or constructively. They suffered
no adverse action as a result of Newsome's off-the-cuff comment.
The complaint of discrimination cannot be sustained.
Accordingly, the complaint is hereby DISMISSED.
Michael E. Zielinski
Administrative Law Judge
Distribution:
M. Yusuf M. Mohamed, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA
22203 (Certified Mail)
David J. Farber, Esq., Alexandra V. Butler, Esq., Patton Boggs,
LLP, 2550 M Street, NW, Washington, D.C. 20037 (Certified Mail)
/mh
**FOOTNOTES**
[8]: See Sec'y on behalf of Price v. Jim Walter Resources,
Inc., 12 FMSHRC 1521 (Aug. 1990); UMWA v. Consolidation Coal Co.,
1 FMSHRC 338 (May 1979).
[9]: Secretary's Post Hearing Brief, at 37-38.
[10]: Billy Williams testified that Stephen Ellis told him
about the statement and that Ellis, in the opinion of Williams,
appeared to take the statement seriously, although it was related
in an unemotional, conversational manner. Williams expressed
surprise and stated that he didn't believe that Durbin was so
desperate to pay money to find out who was making the complaints.
Jenkins testified that Ellis told him about a $500 offer and that
he appeared to have taken the statement seriously. Jenkins,
himself "laughed it off." In a statement given to MSHA, Ellis
denied any knowledge of a reward or bounty from the company to
find out who called MSHA.
[11]: Such comments are not to be condoned, because they
could result in a chilling of miners' rights to make legitimate
safety complaints if made in a manner and under circumstances
suggesting a serious intent to discover the identity of miners
making legitimate confidential complaints. There is also a
danger that, even if obviously made in jest, such a comment could
be taken seriously by a miner hearing about it second or third
hand. Here, Newsome's comment was not intended to, and did not,
have a chilling effect on the rights of miners.