FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 9, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen and Nakamura, Commissioners

DECISION

BY Jordan, Chairman; Duffy, Young and Nakamura, Commissioners:         

            In this discrimination proceeding arising under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c), Administrative Law Judge Jerold Feldman determined that William Metz was not discriminated against by Carmeuse Lime, Inc. (“Carmeuse”). 32 FMSHRC 1710 (Nov. 2010) (ALJ). Metz filed a petition for discretionary review of the judge’s denial of his claim, which the Commission granted. For the reasons that follow, we affirm the judge’s decision.

I.

Factual and Procedural Background

             Carmeuse, an affiliate of Carmeuse Lime and Stone, operates a plant at Annville, Pennsylvania, with approximately 50 employees. Id. at 1711; Tr. 16. The plant produces lime from stone extracted from an adjacent quarry. 32 FMSHRC at 1712. Willam Metz was employed by Carmeuse and its predecessor company at the Annville plant for approximately 22 years. Id. Metz worked in the maintenance department as a millwright; his responsibilities included working on general maintenance, inspecting equipment, welding, and fabricating. Id.; Tr. 226-27. Metz also served on the safety committee and periodically accompanied mine inspectors as a miners’ representative. 32 FMSHRC at 1712. Metz has a long history of making safety-related complaints and acting as “an employee spokesman” for personnel grievances. Id.

            A.        Metz’s Complaints About the Kilns

            At the Annville plant, four kilns weighing several tons were used to process lime from limestone rock. Id. at 1714. In 2009, independent contractors were dismantling the kilns. Id. Metz was concerned about asbestos dust possibly being released as a result of the dismantling because the lunch room was in the same vicinity. Tr. 44, 51. He was also concerned about being struck by falling material, as he believed that the area was not properly dangered-off. Tr. 47-48, 50-51, 54; 32 FMSHRC at 1714. Metz communicated these safety concerns two to three weeks before his termination to five Carmeuse managers. Tr. 60; 32 FMSHRC at 1714. He complained to Plant Manager Ken Kauffman the day before his suspension on March 11, 2009. Tr. 56, 70-71, 103-04. Metz testified that at this meeting, he threatened to call MSHA about the hazardous kiln conditions. Tr. 71. Carmeuse stipulated that Metz’s complaints were made in good faith. 32 FMSHRC at 1714; Tr. 61.

            B.        The Operator’s On-Call Policy

            Carmeuse had an “on-call policy” that required certain maintenance and electrical employees to be available to work on their days off if needed. 32 FMSHRC at 714. On-call employees were paid for at least four hours if they were summoned to work. Id. at 1714. However, prior to 2009, Carmeuse did not pay on-call employees for their on-call status. Id. In January 2009, Carmeuse changed its policy so that employees were paid for four hours if they came to work and, in addition, employees were paid $25 for each day that they were on-call, but not required to work. Id. at 1714-15. The new policy did not apply retroactively. Id.

            The issue of retroactive backpay compensation was a source of contention in the early months of 2009. Id. at 1715. Metz, acting as a representative of the millwrights, approached several members of the Carmeuse Human Resources (“HR”) Department about this issue. Id.; C. Ex. 25; R. Ex. 15. Metz testified that he was promised that the on-call compensation would be paid retroactively. Tr. 72, 191, 599-600; C. Ex. 25, R. Ex. 15; 32 FMSHRC at 1715. He submitted a peer review request listing six employees requesting backpay compensation. Tr. 165-66, 191-92; R. Ex. 15. Carmeuse denied the peer review request on the basis that it involved a company policy. R. Ex. 15. Metz then filed a response to the denial and a renewed request on January 5, 2009, and Carmeuse again denied Metz’s request. R. Ex. 15.

            C.        Events of March 12 and 13, 2009

            Melissa Croll was a corporate HR manager based in Carmeuse’s corporate headquarters in Pittsburgh, Pennsylvania. 32 FMSHRC at 1715. Her supervisor was Kathy Wiley, Vice-President of HR, who also was based in Pittsburgh. Id. Croll was assigned to the Annville plant in January 2009. Id.; Tr. 370.

            On March 12, 2009, Croll visited the plant to meet with the plant’s HR assistant, Ed Saterstad. 32 FMSHRC at 1715. At that time, Metz was called into a conference room to speak with Croll. Id. at 1716. Before the meeting, Saterstad informed Croll that Metz “complains a lot.” Id. at 1715-16; Tr. 468, 530. Croll was not aware of the ongoing history with respect to on-call backpay between Metz and Carmeuse. Tr. 528, 547-48; R. Ex. 18. Nor was she aware that another HR officer had made representations that the employees were going to get paid two years of backpay. Tr. 547-48; R. Ex. 18. Metz brought up the on-call issue and grew upset when Croll professed to know nothing about it. Tr. 730; R. Ex. 18. When Metz tried to invoke peer review for the denial of the backpay, Croll replied that peer review did not apply to company policy. 32 FMSHRC at 1716. According to Croll, Metz grew irate and said “that’s f______g bullshit.” Id. Croll testified that Metz also used profanity when he requested a formal response on the issue from the company. Id. Croll testified that Metz got up suddenly but that he did not try to attack her. Tr. 471; R. Ex.18.

            After the meeting ended, Croll met with Plant Manager Kauffman. 32 FMSHRC at 1719. Croll asked Kauffman to call Metz to the office so that she could express her concerns and explain that the behavior in the conference room was inappropriate. Id. Croll subsequently suggested to Metz that he should look for another job if working at the plant was making him unhappy. Id. Croll, Saterstad, and Kauffman then went to lunch. Id.

            When they returned from lunch, Croll, Kauffman and Saterstad met Ron Popp, Metz’s supervisor, who had just spoken to Metz. Id. Popp explained that Metz was upset and reported that Metz said “she [Croll] is a waste of my f___ time. She told me to go look for a job. I want to go home before I hurt myself or someone.” Id.; R. Ex. 20. Popp had agreed that Metz should go home, and he observed Metz leave the plant. 32 FMSHRC at 1720.

            Kauffman and Croll called Carmeuse’s Vice President of Operations, Roger Downham, because Croll’s supervisor was unavailable. Id. They explained the series of events that had occurred. Id. Downham decided that Metz should be suspended without pay pending further investigation. Id. Metz did not attempt to come to work on March 13, 2009. Id. Because Carmeuse was concerned with Metz’s reaction, the notice of suspension was delivered by the state constable. Id.

             D.        Croll’s Investigation

            Croll then began an investigation to determine if Metz’s conduct was an isolated event or a pattern of behavior. Id. She reviewed Metz’s personnel file, in which there was one employee warning notice dated March 6, 2007, which briefly stated that “employee threatened management.” Id.; R. Ex. 6. The warning notice said that termination would occur if behavior should occur again. R. Ex. 6. The notice contained a signature line for the employee but was not signed by Metz. Id. It also contained a section entitled “Employee Statement” (that provided for the employee to agree or disagree with the employer’s action), which was also blank. Id. In addition to reviewing the file, Croll interviewed employees with regard to Metz’s past behavior. R. Ex. 26. She also contacted some HR officials who previously had been assigned to the Annville plant. 32 FMSHRC at 1721.

            E.        Termination of Metz’s Employment

            Wiley reviewed the information submitted by Croll and discussed the March 12 incident with Downham and in-house counsel. Id. Their conclusion was that Metz should be terminated. Id.

            Wiley telephoned Metz on March 18, 2009, and informed him of the decision to terminate his employment. Id. A letter of termination was also sent to Metz on that day. Id.; R. Ex. 1. The letter provided that the grounds for termination were violations of the Corporate Harassment Policy and the General Rules and Regulations as outlined in the Annville Handbook. Id. The letter stated in pertinent part:

Your repeated use of profane, vile, threatening and/or abusive language in the workplace used with your peers and members of management, in addition to a thorough review of your personnel file, has demonstrated a clear pattern of harassing, abusive and offensive behavior in the workplace as well as a lack of respect for others. This behavior will not be tolerated.

Id.

            Metz requested peer review of his termination. 32 FMSHRC at 1721. On March 23, 2009, Wiley sent a letter denying the request for peer review. R. Ex. 27A. The letter stated that “terminations are not subject to peer review when they involve any type of harassment as it involves very confidential information that cannot be shared in a peer review format.” Id.

            F.        The Judge’s Decision

            Metz filed a discrimination complaint under section 105(c)(2) of the Act with the Department of Labor’s Mine Safety and Health Administration (“MSHA”) on March 28, 2009. 30 U.S.C. § 815(c)(2). 32 FMSHRC at 1710 n.1. On May 11, 2009, MSHA advised Metz that its investigation did not disclose a Mine Act section 105(c) violation. Id. On June 4, 2009, Metz filed a discrimination complaint with the Commission pursuant to section 105(c)(3). Id.

            The judge determined that Metz had established a prima facie case of discrimination because Metz made a safety-related complaint, i.e, that the contract employees were dismantling a kiln in an unsafe manner, shortly before his termination of employment. Id. at 1711, 1722-23. However, the judge found that Carmeuse successfully rebutted the prima facie case by demonstrating that the termination was not motivated by protected activity, but rather by an incident that occurred on March 12, 2009, in which Metz used “profanity and expressed hostility towards a Carmeuse HR official.” Id. at 1711. The judge found that Metz’s hostility was related to a personnel matter rather than any activity protected by the Mine Act. Id. The judge also held that even if Carmeuse had been motivated in any part by Metz’s protected activity, his hostile and threatening conduct during and immediately following the March 12 meeting provided Carmeuse with a rational and independent basis for his termination regardless of his protected activity. Id. at 1728. Accordingly, the judge denied Metz’s discrimination claim. Id.

II.

Disposition

            As noted above, the judge concluded that Metz had presented a prima facie case of discrimination but that the operator successfully rebutted it by demonstrating that the termination was not motivated by Metz’s safety complaints and activities. A complainant alleging discrimination under the Mine Act establishes a prima facie case of prohibited discrimination by presenting evidence sufficient to support a conclusion that the individual engaged in protected activity and that the adverse action complained of was motivated in any part by that activity. See Sec’y of Labor on behalf of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consol. 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). As recently stated in Turner v. Nat’l Cement Co. of CA., “to establish a prima facie case, it is sufficient that the alleged discriminatee present evidence from which the trier of fact could infer retaliation.” 33 FMSHRC 1059, 1065 (May 2011) (citing Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1022 (8th Cir. 1998)).

             The operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part 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 also was motivated by the miner’s unprotected activity and would have taken the adverse action for the unprotected activity alone. See 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).

            A.        Metz’s Prima Facie Case

            The first element of a prima facie case is a showing that protected activity occurred. Sec’y on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). Here, the judge found that Metz met the first element of a prima facie case of discrimination because Metz had made safety-related complaints involving the kilns shortly before his March 18, 2009, termination of employment. 32 FMSHRC at 1711, 1722-23.

            Substantial evidence supports the judge’s determination that Metz made numerous safety complaints with respect to the kilns in the weeks leading up to his termination. See Tr. 55-56, 59-60, 71. Moreover, Carmeuse stipulated that Metz’s complaints were made in good faith.

Tr. 60-61; 32 FMSHRC at 1714.

            The second element of a prima facie case is a showing that adverse action was motivated in any part by protected activity. Chacon, 3 FMSHRC at 2510. The judge found that Metz satisfied his burden of demonstrating the second element of a prima facie case because Metz’s safety-related complaints were made two to three weeks prior to his termination. 32 FMSHRC at 1723. In addition, the judge rejected Carmeuse’s contention that there was no motivation because the managers who terminated Metz had no knowledge of his protected activities. Id.

            We agree that the judge properly imputed the knowledge of those protected activities to the Carmeuse corporate officials who decided to terminate Metz. Id. at 1723. The Annville plant is small-sized with approximately 50 employees. Id. The Commission has held that the small size of a mine supports an inference that an operator was aware of a miner’s protected activity. Morgan v. Arch of Ill., 21 FMSHRC 1381, 1391 (Dec. 1999). Moreover, “[a]n operator may not escape responsibility by pleading ignorance due to the division of company personnel functions.” Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb.1984). In addition, Kauffman, the plant manager, was consulted on the decision. Tr. 566-67, 597.

            The supervisors’ knowledge of the complaints and the timing of those complaints constitute evidence that would allow a factfinder to conclude that Metz’s discharge was at least partially motivated by his protected safety complaints. See Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982); Chacon, 3 FMSHRC at 2510 (providing in part that discriminatory motivation may be shown by the operator’s knowledge of protected activity and the coincidence in time between the protected activity and the adverse action). Accordingly, we conclude that the judge properly found that Metz had established both elements of a prima facie case of discrimination.

            B.        Rebuttal of the Prima Facie Case

            We now turn to the question of whether the operator has successfully rebutted the prima facie case. Robinette, 3 FMSHRC at 818 n.20. The judge determined that Carmeuse rebutted Metz’s prima facie case by demonstrating that the termination was not motivated in any part by his protected activity. 32 FMSHRC at 1728. We conclude that the judge’s determination is supported by substantial evidence.

            The judge found that Metz’s conduct on March 12, 2009, “was insubordinate and intolerable.” Id. at 1724. In reaching this finding, the judge made a credibility determination that Metz acted inappropriately and used profane language at his meetings with Croll. Id. The Commission has often recognized that as a general rule, absent exceptional circumstances, the Commission will not overturn findings based on credibility resolutions. In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1881 n.80 (Nov. 1995) aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096,1107 (D.C. Cir. 1998); Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992).

            Although Metz points out that the judge did discredit part of Croll’s testimony (32 FMSHRC at 1723), the Commission has recognized that a judge may credit a witness’ testimony despite minor inconsistencies in that testimony. Austin Powder Co., 21 FMSHRC 18, 23 (Jan. 1999). In Robinette, 3 FMSHRC at 813, the Commission similarly reasoned that where it is apparent that a witness has testified untruthfully in part, the judge is not foreclosed from accepting the testimony, if the remainder of the questionable witness’ testimony is corroborated by other credible evidence or is otherwise inherently believable. Here, the judge noted the inconsistency in Croll’s testimony but gave her testimony, as a whole, greater weight because it was corroborated by other evidence. 32 FMSHRC at 1723-24. In particular, the judge relied on Popp’s corroborating account of meeting Metz shortly after the meeting with Croll, at which time Metz used profanity and suggested he might hurt himself or someone else if he didn’t leave the plant. Id. at 1724; 644-48, 394-96. Popp testified that the March 12 incident was more serious and different from Metz’s past behavior because he never knew Metz to say that “he was going to hurt somebody else.” Tr. 648. Significantly, the judge discredited Metz’s testimony as to the March 12 meeting as evasive and not believable. 32 FMSHRC at 1717, 1724.

            In addition, the judge relied on Metz’s history of angry and inappropriate behavior to support Carmeuse’s claim that it discharged Metz for his intolerable behavior alone. Id. at 1724. Substantial evidence in the record supports the judge’s determination. The record revealed that Carmeuse had previously warned Metz for threatening Kauffman and that his personnel file contained a warning notice dated March 6, 2007, which stated that “employee threatened management.” Id. at 1720; R. Ex. 6. Croll’s interviews revealed that some employees were bothered by Metz’s angry outbursts. R. Ex. 26. A number of the staff believed that Metz was “a time bomb waiting to go off.” R. Exs. 23, 26. One of the staff interviewed relayed an account where Metz allegedly made lewd comments about another employee’s mother. 32 FMSHRC at 1720; R. Ex. 26. The judge also credited Kauffman’s testimony that he believed that Metz was volatile, that Kauffman considered Popp’s report of what Metz said to be a threat, that Metz’s “reactions in the past have been so over the top,” and that he feared that Metz might go “postal.” Tr. 591-93; 32 FMSHRC at 1727. Although there was some contrary evidence in the record, on balance, substantial evidence supports the judge’s conclusion that Carmeuse’s decision to terminate Metz was motivated by Metz’s history of inappropriate behavior. See Keystone Coal, 151 F.3d at 1104 (holding that the Commission on appeal may not substitute a competing view of the judge’s reasonable findings of facts and conclusions).

            We are also not persuaded by Metz’s assertion that the judge did not consider Metz’s long history of making safety complaints. The record does not reflect that there was a proximity in time between any of Metz’s past safety activities, other than the kiln complaints, and his termination. 32 FMSHRC at 1726. As the judge found, although Metz served as a miners’ representative on occasion, Metz primarily relied upon his safety-related complaints concerning the dismantling of the kilns to establish discrimination. Id. at 1722. Most significantly, the record reveals that numerous other employees complained about the kiln issue and no other employee experienced any retaliation. Id. at 1726. This evidence provides further support for the judge’s finding that the operator did not have animus against Metz for his safety-related complaints. Id.

            Similarly, we reject Metz’s assertion that denial of peer review after his termination constituted disparate treatment. The Commission has held that disparate or inconsistent treatment is a factor often indicative of discrimination. Chacon, 3 FMSHRC at 2512. “Typical forms of disparate treatment are encountered where employees guilty of the same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which befalls the latter.” Id. The peer review policy for the Annville Plant states: “The Peer Review process will be available to all regular, full-time employees who have successfully completed their probationary period . . . .” C. Ex. 10. The policy goes on to state that peer review cannot “[r]eview cases involving sexual harassment” nor can it “[s]et or change policy” or “work rules.” Id. at 2. Carmeuse conceded that Metz was not discharged for sexual harassment but only for harassment. Tr. 732. Accordingly, we acknowledge that the denial of Metz’s peer review after his termination was inconsistent with company policy on its face. However, we can understand the need for sensitivity in Metz’s case, in which peer review might have interjected the mother of another employee into a workplace issue, thus approximating the privacy considerations in sexual harassment cases, which are clearly barred from peer review according to Carmeuse’s policy. In any event, we conclude that the failure to provide peer review was not linked in any way to Metz’s protected activity. Thus, we agree with the judge that “there is no rational basis for concluding that the denial of peer review is an indicia of discriminatory motive.” 32 FMSHRC at 1727.

            Metz argues that the judge failed to take into account testimony that showed that Metz was not threatening to Croll or toward his other colleagues. M. Reply Br. at 6-7. However, even in the absence of a threat by Metz, we would conclude that substantial evidence supports the operator’s assertion that it fired him for behavior not related to mine safety – that is for profane and abusive conduct. Moreover, we agree with the judge that Metz’s hostility on March 12, 2009, was related solely to a personnel matter having to do with Carmeuse’s on-call compensation policy, rather than any activity protected by the Mine Act. Accordingly, we conclude that the judge properly denied Metz’s discrimination claim.

III.

Conclusion

            Metz bears the ultimate burden of proving that his termination was the result of his protected activity – his safety complaints. He has not produced evidence sufficient to prove that his complaints about the kilns (and his other safety activities) motivated his discharge. Accordingly, for the foregoing reasons, the Commission affirms the judge’s decision.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioner Cohen, dissenting:

            This case turns upon whether the justifications that Carmeuse Lime, Inc., offered for terminating William Metz’s employment were pretextual. Because I conclude that the judge did not adequately address the pretext question and, accordingly, the case should be remanded, I dissent.

            Under the traditional Commission framework, a complainant alleging discrimination under the Mine Act establishes a prima facie case of prohibited discrimination by presenting evidence sufficient to support a conclusion that the individual engaged in protected activity and that the adverse action complained of was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consol. 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 may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part motivated by protected activity. See Robinette, 3 FMSHRC at 818 n.20. This framework is commonly referred to as the Pasula-Robinette analysis.

            The Supreme Court, under similar federal anti-retaliation provisions including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), has established a more nuanced allocation of the burden of production and an order for the presentation of proof in discriminatory treatment cases. First, the plaintiff must establish a prima facie case of discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The burden then shifts to the employer to “produc[e] evidence that the plaintiff was rejected . . . for a legitimate, nondiscriminatory reason.” Id. at 254. Once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision, an opportunity “must be afforded” to the plaintiff “to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id. at 253; Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.133, 143 (2000). The Supreme Court has ruled that a “plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148.

            As the majority has acknowledged, Metz established a prima facie case of discrimination by showing that he engaged in safety-related complaints and that his termination was in some part motivated by those complaints. Slip op. at 6-7. The majority then focuses on whether Carmeuse successfully rebutted that prima facie case. Slip op. at 7-9. Absent from the majority’s discussion is a consideration of pretext.  

            The Commission has explained that a defense should not be “examined superficially or approved automatically once offered.” Haro at 1938. In reviewing defenses, the judge must “determine whether they are credible and, if so, whether they would have motivated the particular operator as claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Commission has held that “pretext may be found . . . where the asserted justification is weak, implausible, or out of line with the operator’s normal business practices.” Sec’y on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug 1990) (citing Haro, 4 FMSHRC at 1937-38). As the Commission has set forth, “[a] plaintiff may establish that an employer’s explanation is not credible by demonstrating ‘either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge.’” Turner v. National Cement Co. of CA., 33 FMSHRC 1059, 1073 (May 2011) (emphasis in original) (citations omitted).

            My colleagues in the majority focus on the relative credibility of Metz and Melissa Croll, a corporate human resources manager who was newly assigned to the Annville plant, with respect to the March 12, 2009 meeting. The majority is indeed correct that credibility determinations uniquely lie within the province of the judge. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992). Thus, I do not question the finding that Metz acted in a hostile and inappropriate manner in the meeting with Croll on March 12. However, as discussed, infra, this case involves more than a determination of what happened at the March 12 meeting between Metz and Croll.

             The majority also relies on “Metz’s history of angry and inappropriate behavior” to justify Metz’s termination. Slip op. at 8. However, in Metz’s personnel file, there was only one warning notice, dated March 6, 2007, during his entire 22-year work history. R. Ex. 6.

            Additionally, the judge relied on the claim that Metz reacted aggressively in one past incident with former HR representative Mei Lorick. 32 FMSHRC at 1724. It is questionable whether this is supported by substantial evidence. See Id. at 1720, 1724. Lorick did not testify and Metz’s counsel objected at the hearing to any reference to Lorick since counsel was unable to contact her. Tr. 30. Croll learned of this event through human resources assistant Ed Saterstad, who also did not testify. Tr. 392-93; R. Ex. 18. Thus, the judge was relying on hearsay on top of hearsay. In addition, there is no notation in Metz’s personnel record as to any incident with Lorick. See also Tr. 426, 489 (Croll states that Metz’s statement to Lorick was not threatening).

            Similarly, the judge’s acceptance of the evidence that Metz had a history of harassing a former Carmeuse employee about that employee’s mother, 32 FMSHRC at 1713, 1720, 1727, is based on so many levels of hearsay that it lacks any reliability. The supposed incident was never testified to by the former employee. Croll did not speak directly with the former employee. Rather, Croll relied on a statement about this incident by another employee, Jim Smith, who also never testified. Smith did not hear about the alleged incident from the former employee directly, but rather from the former employee’s mother. Tr. 418-19. Thus, the evidence relied on by the judge was what Croll said that Smith said that the former employee’s mother said that the former employee himself said. Moreover, Smith was the boyfriend of the former employee’s mother. Tr. 313-14, 416, 418. Additionally, there had been a previous incident between Smith and Metz, in which Smith accused Metz of trying to burn him with hot metal. Tr. 415-16; R. Exs. 18A, 25. As the judge noted, Carmeuse investigated and found that Metz was not at fault. 32 FMSHRC at 1719. For Croll to rely so heavily on Smith’s evidence against Metz reduces the substantiality of the evidence of Metz’s alleged “harassment” of the other employee to the level of a television reality show. The judge never examined the extent to which Croll relied on Smith’s information, and the potential unreliability and bias associated with that information.

            Moreover, as the majority acknowledges, slip op. at 8, there was contrary evidence in the record about Metz’s history as a Carmeuse employee which the judge did not weigh or discuss in his decision. Popp stated in his interview on March 13, 2009, the day after the Croll meeting, that he did not feel threatened when Metz said that he was going to hurt himself or someone else because “Bill is good on safety, I don’t think he would hurt anyone or himself.” R. Ex. 26. When Croll investigated Metz’s past history, many employees reported that they liked Metz, that he was a good worker (Larry Graby, Bruce Kercher), and that when the plant was unionized, people went to him because he knew the rules (Robert Boehler). R. Ex. 26. The other millwrights at Carmeuse – Jeffrey Englehart, Bruce Kercher and Robert Boehler – testified that Metz was a very good and safe millwright who had a good relationship with his co-workers. Tr. 203, 246-47, 297, 305. Many who knew him for some time testified that he had a temper but was not threatening, that “Bill was just Bill.” R. Ex. 26 (Ron Popp, Ken Davis); Tr. 576. The judge’s failure to address this contrary evidence undercuts his decision that Carmeuse sufficiently rebutted Metz’s prima facie case.

            Given this substantial body of contradicting evidence, it was incumbent upon the judge to adequately analyze and weigh all the testimony of record and then make appropriate findings and explain the reasons for his decision. See Mid-Continent Res. Inc., 16 FMSHRC 1218, 1222-23 (June 1994) (vacating and remanding for adequate analysis of the record). For this reason, I would remand for the judge to re-evaluate his reliance on Metz’s past history to support Carmeuse’s justification for the termination.

            The Supreme Court in Burdine mandated that in discrimination cases there is a “requirement that the plaintiff be afforded ‘a full and fair opportunity’ to demonstrate pretext.” 450 U.S. at 258. Nonetheless, the judge here went to great lengths to explain that he did “not sit as a super grievance board to judge the industrial merits, fairness, reasonableness, or wisdom of an operator’s employment policies . . . .” 32 FMSHRC at 1725 (citing Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990)). The judge stated “‘[o]nce it appears that a proffered business justification is not plainly incredible or implausible, a finding of pretext is inappropriate.’” 32 FMSHRC at 1725 (quoting Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-17 (Nov. 1981). The judge reasoned that “while a proffered business justification must be facially reasonable, it is not the role of the judge to substitute his or her judgement for that of the mine operator.” Id. at 1725. Thus, the judge applied a “limited” and “restrained” examination of Carmeuse’s business justification. Id. However, I would suggest that the judge’s review of Carmeuse’s “business justification” was so “limited” and “restrained” that it conflicted with the Supreme Court’s mandate in Burdine. Using this highly deferential standard to evaluate the operator’s justification, the judge failed to fairly and appropriately evaluate Metz’s assertion that Carmeuse’s explanations were pretextual.

            A plaintiff may establish pretext if the proffered reasons did not actually motivate his discharge. Turner, 33 FMSHRC at 1073. Carmeuse claims to have fired Metz because of his abusive and threatening behavior. R. Ex. 1. Although Metz acted inappropriately in his meetings with Croll, it was not until Popp reported what Metz said after the meetings that Carmeuse managers began to consider disciplining him. Tr. 523, 532, 589-94. Although Carmeuse suspended Metz for making this “threat,” Metz may actually have been acting with self-control in that he wished to leave before he might hurt himself or someone else. 32 FMSHRC at 1719. It is noteworthy that Popp gave this description of Metz’s appearance: “Like something was wrong with him. He had his head, hands up and was laying, like, over one of the cat-walks.” Tr. 644.

            Metz’s conduct in this incident is similar to the classic case of Tuberville v. Savage, 1 Mod. Rep. 3, 86 Eng. Rep. 684 (1669), where the Kings Bench held that it was not a threat when Tuberville, after being insulted by Savage, put his hand upon his sword and said,”[i]f it were not assize-time, I would not take such language from you.” In a legal action in which Savage claimed that Tuberville had committed an assault, the court held that the declaration of Tuberville was, in fact, that he would not assault Savage. Id. Similarly, Metz’s declaration that he needed to leave so that he would not hurt someone does not rise to the level of a threat.

            In Sec’y on behalf of Bernardyn v. Reading Anthracite Co., 23 FMSHRC 924, 924-26 (Sept. 2001), the Commission vacated and remanded a judge’s finding that, because of a miner’s outrageous use of profanity and repeatedly issuing a threat to his manager that “I’ll get the little f_____r,” the operator would have fired the miner in any event because of the cursing and threatening behavior. There, the Commission determined that a single, general statement that mentions no person by name, unaccompanied by coercive conduct or warning of specific harm, made in the context of a safety complaint does not constitute a threat. 23 FMSHRC at 934. Similarly, Metz’s words did not rise to the level of a threat and there was no accompanying coercive conduct. Hence, I would remand for the judge to evaluate Metz’s alleged threat to determine whether it qualified as a motivating factor for the termination.

            Pretext also may be demonstrated by disparate treatment or inconsistent treatment. Chacon, 3 FMSHRC at 2512. As the majority recognizes, “[t]ypical forms of disparate treatment are encountered where employees guilty of the same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which befalls the latter.” Id.; slip op. at 9. The plaintiff may show pretext for discrimination with evidence that “similarly situated employees outside of the plaintiff’s protected group received favorable treatment or did not receive the same adverse treatment.” 1 Barbara T. Lindemann & Paul Grossman, Employment Discrimination Law 73-74 (4th ed. 2007). Here, the record reveals that another miner, Jim Smith, stated in an e-mail to Croll that he “wanted to punch someone in the mouth.” Tr. 504; C. Ex. 21 at 9. Croll regarded this as a threat, but Smith was never punished, disciplined or even written up for the threat. Tr. 504. Significantly, the judge never addressed this instance of potential disparate treatment.

            Pretext is also an issue in the context of the denial of peer review to Metz after his firing. Metz raised his denial of peer review when other similarly-situated employees were granted peer review. The judge’s basic analysis of this contention was: “Carmeuse’s assertion that peer review did not apply because Metz’s termination involved comments that constituted sexual harassment is supported by the peer review guidelines. (Metz Ex. 10; Resp. Ex. 27A).” 32 FMSHRC at 1727. However, the judge’s analysis is incorrect. As the majority recognizes, “the denial of Metz’s peer review after his termination was inconsistent with company policy on its face.” Slip op. at 9. Carmeuse’s peer review policy states that it does not apply to cases involving “sexual harassment.” C. Ex. 10, at 2. Carmeuse conceded that Metz was not discharged for sexual harassment but only for harassment. Tr. 732. Hence, the judge’s finding is contrary to Carmeuse’s own evidence, as well as to its written policy.

            Federal courts hold in discrimination cases that an employer’s failure to follow its own internal employment procedures can constitute evidence of pretext. Reeves, 530 U.S. at 147 (the “fact-finder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt’” because that employer may be “dissembling to cover up a discriminatory purpose”); Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005) (holding that failure to follow company’s own procedures may be evidence of pretext); Giacoletto v. Amax Zinc Co., 954 F.2d 424, 427 (7th Cir. 1992) (determining that employer’s proffered justification was pretextual when company failed to follow its own procedures); Mohammed v. Callaway, 698 F.2d 395, 401 (10th Cir. 1983) (plaintiff demonstrated pretext by exposing “serious procedural irregularities” on the part of the company). See also Turner, 33 FMSHRC at 1075 (holding that failure to follow operator’s own policies is suggestive of pretext). The judge and the majority have overlooked the serious inconsistencies in Carmeuse’s procedures with respect to its treatment of Metz, and thus failed to adequately examine the question of pretext. 

            The majority overlooks the fact that Carmeuse did not apply its peer review policy consistently in cases of sexual harassment. In one instance, Jeff Englehart was granted peer review when he was suspended for having a photo of a naked woman on his phone and showing it to others. Tr. 215-16. Carmeuse’s Annville Employee Handbook defines “sexual harassment” as including the “display of sexually explicit material.” C. Ex. 8 at 35. Essentially, Carmeuse refused peer review to Metz on the basis of his alleged “harassment” (Ex. R. 27A) – contrary to its policy – while – also contrary to its policy – permitting peer review for Englehart, who was disciplined for conduct involving sexual harassment.

            The majority states that it “can understand the need for sensitivity in Metz’s case, in which peer review might have interjected the mother of another employee into a workplace issue . . . .” Slip op. at 9. However, what the majority characterizes as “sensitivity” amounts to a clear denial by Carmeuse of Metz’s right to peer review under company policy. It strikes me that Carmeuse’s “sensitivity” is much more likely a desire that its reasons for discharging Metz not undergo the scrutiny to which Metz was entitled under the peer review policy. Thus, the denial of peer review to Metz is clear evidence of pretext.

            The majority also states that “[i]n any event, we conclude that the failure to provide peer review was not linked in any way to Metz’s protected activity.” Id. at 9. However, to show evidence of pretext, Metz need not connect Carmeuse’s failure to follow its own peer review policy in his case to the protected activity. It is sufficient to show that he engaged in protected activity, that Carmeuse took adverse action against him, and that Carmeuse then refused to permit him the right to appeal – in essence the right to be heard as to – the adverse action.

            The majority agrees with the judge that “there is no rational basis for concluding that the denial of peer review is an indicia of discriminatory motive.” Id. (citing 32 FMSHRC at 1727). The problem with this conclusion is that the judge neither addressed Metz’s arguments on pretext nor weighed the evidence of disparate treatment or Carmeuse’s failure to follow its own procedures.

            Finally, both the majority and the judge disregard the evidence of animus and hostility towards Metz’s mine safety complaint that he made the day before the encounter with Croll. Metz described his meeting with Kauffman on March 11, 2009, in the following testimony:

I walked in. [Kauffman] pretty much said – he started right off. I didn’t get a chance to say anything. How do you think them contractors are doing? They are pretty good, ain’t they? I said, yeah, if everybody gets out alive. That’s exactly why I am here.

I said, I told my boss, Keith Lambert, Greg Doll, Mark Miller, and now I am telling you. I said them guys are a hazard. I don’t want to work around them.

[Kauffman then said] Don’t worry about them, Bill. I said what do you mean don’t worry about them? He said, they are signed off. I said, [w]hat do you mean they are signed off?

He said, [t]hey are signed off with MSHA. If they get hurt, it’s not going to come back on Carmeuse. I said, well, that’s no consequence for us guys that have to work up around there. We don’t even want to work in there.

He spun around like I wasn’t even there. He was in his chair. Spun around like I wasn’t even there and was doing whatever he was doing before I walked in there.

I said, [w]e will see if MSHA agrees. And I walked out. And the next day they called me to [meet Croll].

Tr. 70-71. Kauffman did not deny this incident. Tr. 580-81, 631-32.

            This conversation suggests not only that Kauffman did not want to hear Metz’s safety complaint, but also that Kauffman was far more concerned about Carmeuse’s potential monetary liability for injuries suffered by the contractors than he was about the potential for injuries to Carmeuse’s employees. Considering that this conversation occurred the day before the critical events that led to Metz’s termination, the judge should have considered it as evidence of Kauffman’s animus. McGill, 23 FMSHRC at 986-87 (concluding that the judge correctly inferred discriminatory motive from adverse action taken hours after miner’s safety complaint). This testimony indicates that Kauffman may have harbored hostility for Metz’s raising of mine safety complaints. The judge should have addressed whether this conversation revealed animus or hostility on the part of Carmeuse toward Metz’s protected activities under the Mine Act.

            This case presents many instances where Carmeuse’s treatment of Metz is inconsistent with its own internal procedures and practices. Under Commission case law, as well as the law developed by federal courts in Title VII cases, the judge was required to carefully examine the evidence which tended to show that Carmeuse’s reasons for discharging Metz were pretextual. Instead, the judge only gave a superficial look at Carmeuse’s justifications. He also failed to consider Carmeuse’s evidence of animus toward Metz’s safety complaint. For all of these reasons, I conclude that this case should be remanded for a thorough analysis of the record with respect to whether the reason presented by Carmeuse for Metz’s discharge was pretextual, and whether Metz was discriminated against because of his safety complaints.

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Distribution:

Thomas W. Beaver, Esq.

Rabenold, Koestel & Scheidt, P.C.

501 Park Road North

P.O. Box 6263

Wyomissing, PA 19610

Ralph Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222-1000

Administrative Law Judge Jerald Feldman

Federal Mine Safety and Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021