FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
August 30, 2012
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) on behalf of LAWRENCE L. PENDLEY v. HIGHLAND MINING COMPANY |
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BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DECISION
BY: Jordan, Chairman; Cohen and Nakamura, Commissioners
This proceeding on remand involves a discrimination complaint filed against Highland
Mining Company (“Highland”) by the Secretary of Labor on behalf of miner Lawrence L.
Pendley under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act” or “Act”).
Administrative Law Judge David Barbour
concluded that Highland and its agents did not discriminate against Pendley when he was
suspended and subsequently discharged in March 2007. 30 FMSHRC 459, 494-96, 498-99 (May
2008) (ALJ). The judge also found no merit to the Secretary’s allegation that Highland retaliated
against Pendley by making adverse changes in his working conditions following his return to
work under an order of temporary reinstatement in June 2007. Id. at 496-98, 499.
The Secretary sought and obtained Commission review of the judge’s determination regarding that suspension and discharge, while Pendley, through private counsel, did likewise with respect to the judge’s finding that Highland did not discriminate against Pendley following his temporary reinstatement. A Commission majority affirmed the judge’s decision on both issues. 31 FMSHRC 61, 83 (Jan. 2009).
Pendley (but not the Secretary) then petitioned the United States Court of Appeals for the Sixth Circuit to review the Commission’s decision. In Pendley v. FMSHRC, 601 F.3d 417, 429 (6th Cir. 2010), the court granted Pendley’s petition for review in part and denied it in part. The court reversed the Commission’s order affirming the judge’s decision and remanded the matter to the Commission for further proceedings consistent with the opinion issued by the court with regard to both the termination issue and the issue of post-reinstatement working conditions. Id. The Commission subsequently sought briefing from the parties on the issues the court raised in its remand order. Unpublished Order at 1-2 (July 2, 2010).
For the reasons that follow, we remand this case to the judge to clarify his findings and analysis with respect to one of the reasons Highland gave for Pendley’s termination. Once he has done so, the judge should examine all the record evidence pursuant to established Commission section 105(c) precedent as discussed herein. We also remand the case so that Pendley’s allegation of post-reinstatement discrimination can be reexamined by the judge in light of the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006).
I.
The Termination Issue
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 Driessen v. Nev. 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 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. Factual and Procedural Background
Pendley’s discrimination complaint regarding his termination from Highland was preceded by his earlier discrimination complaint against the operator over its first suspension of him in 2005. In his May 2008 decision, but in a separate docket (KENT 2006-506-D), the judge concluded that Highland, and its mine operations manager at its No. 9 mine at the time, David Webb, discriminated against Pendley when they suspended him from work there on December 21, 2005. 30 FMSHRC at 489-94, 498. With regard to that first suspension, the judge concluded that it was due to Pendley’s having made safety complaints, both to Highland management and to the Department of Labor’s Mine Safety and Health Administration (“MSHA”). 30 FMSHRC at 491-93. The Secretary offered evidence regarding a number of such incidents involving Pendley. Id. at 462-76. While the judge did not agree that every incident rose to the level of protected activity, he concluded that a number of them were safety-related and were thus protected activity under the Mine Act. Id. at 491-93.
Moreover, while the company, through Webb, claimed that Pendley’s suspension was due to his having entered false information in a sign-in book, the judge found this reason to be pretextual, and that the record instead supported the inference that the incidences of protected activity motivated Highland and Webb to suspend Pendley. Id. at 490-91. Consequently, the judge held that both Highland and Webb had discriminated against Pendley. Id. at 493-94. The judge subsequently issued a final decision in which he set the back pay due Pendley and imposed a civil penalty against Highland. 30 FMSHRC 500, 502 (June 2008) (ALJ). Highland did not appeal the judge’s determinations.
On March 19, 2007, while this first discrimination complaint was still pending before the judge, Pendley was involved in a verbal dispute with the mine office staff over the issue of his overtime pay. 30 FMSHRC at 476. Two days later an even more heated discussion between Pendley and the staff took place. Id. at 476-77. Pendley was told by the staff that only Mine Superintendent Lawrence Millburg could resolve the issue, but when Pendley could not locate Millburg and could not immediately board a man trip to descend into the mine, he again returned to resume his verbal confrontation with the staff. Id. at 477-78. To prevent Pendley from threatening the staff members further, the employees subsequently locked the office. Id. at 478. The judge subsequently found that Pendley was “disruptive, irrational, and orally aggressive.” Id. at 494.
After leaving the office for the second time, Pendley returned to the mantrip load area, where Jack Creighton was near the controls for the man trip cars. Id. at 479. Mine personnel were conducting a hoist safety test at that time, and Creighton had been assigned to monitor the control panel. Id. at 479-80. As the judge detailed in his decision, Creighton and Pendley had an extensive history of antagonism (id. at 462-71), and as Pendley went to activate the controls to call for the man trip himself, an altercation between the two ensued. Id. at 479-80.
Based on the foregoing, Millburg gave Pendley a letter later that day, indicating that Pendley was being suspended with intent to terminate his employment. The termination occurred three days later. Id. at 481-82.
The Secretary subsequently alleged in a second, separate complaint in this docket that
Pendley’s termination constituted unlawful discrimination under section 105(c) of the Mine Act
because it was motivated by Pendley’s protected activities.
In his order temporarily reinstating
Pendley, the judge agreed that there were instances in which Pendley had engaged in protected
activities of which Highland was aware. 29 FMSHRC 424, 426 (May 2007) (ALJ).
The judge, however, in his May 2008 decision held that Highland had successfully rebutted any prima facie case of discrimination the Secretary had established with regard to whether the operator’s decision to discharge the miner was motivated by his protected activity. The judge found that Highland was instead motivated by Pendley’s confrontations with office staff and his latest dispute with Creighton, in the two days immediately proceeding the operator’s decision to suspend and ultimately terminate Pendley from employment at the mine. 30 FMSHRC at 494-95.
At issue in this aspect of the Sixth Circuit’s remand are the reasons that Highland gave Pendley for his discharge, which the court summarized as follows:
Millburg’s letter gave three reasons for the discipline: “[1] Harassment of office staff; [2] Inteferrence [sic] with safety check of hoist potentially endangering the safety of those conducting the test; [3] Assaulting another employee [i.e., Creighton].”
601 F.3d at 421 (quoting Gov’t Ex. 4).
In his discussion of Highland’s rationale for the discharge, the judge stated that the office incidents played “critical roles” in Superintendent Millburg’s decision. 30 FMSHRC at 494. He concluded that Pendley’s “office confrontations” were a proper basis for Millburg’s suspension and discharge of Pendley. Id. at 495.
The latter two reasons Millburg cited in the letter involved Pendley’s final run-in with Creighton. The judge found that Pendley had charged the slope shack where Creighton was monitoring the control panel during a hoist safety test. Id. at 479-81, 495. The judge, while acknowledging that there was a conflict in testimony regarding which miner struck the first blow, concluded that, at a minimum, there was at least an “altercation” between the two men, and that it is one that Pendley could and should have avoided. Id. at 495.
Significantly, as to Highland’s allegation that Pendley had interfered with the hoist test, the judge opined in a footnote that “I do not find this reason crucial to the validity of the disciplinary action. It was enough, in my view, that Pendley was involved in the oral altercation with the office employees and the physical altercation with Creighton.” Id. at 495 n.43.
The Commission majority upheld the judge’s decision dismissing Pendley’s discrimination complaint on both evidentiary (31 FMSHRC at 76-77) and legal grounds. Id. at 79-80. In so doing, the Commission stated that “the judge’s role in examining the reasons for Pendley’s discharge under the Mine Act does not require that he adopt every reason given by the operator in order to sustain the discipline under the collective bargaining agreement.” Id. at 79.
The court, while otherwise affirming the Commission majority’s analysis on Pendley’s claim of discriminatory termination, concluded that the Commission’s affirmance of the judge on that specific ground departed from Commission precedent without explanation. 601 F.3d at 426. As a result, it remanded the issue to the Commission “to reexamine its decision in light of its own precedent.” Id. The court identified Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983), and Secretary on behalf of McGill v. U.S. Steel Mining Co., 23 FMSHRC 981 (Sept. 2001), as the applicable precedents. 601 F.3d at 426.
B. Disposition
Both the Secretary and Pendley take the position that, because Highland offered three reasons why it discharged Pendley, and the judge only found evidence to support two of those reasons, the Commission’s decisions in Chacon and McGill require that the Commission reverse the judge. Both argue that McGill requires that the employer’s stated justification needs to be upheld in its entirety before a judge can find that it has established its affirmative defense; otherwise, the Commission would run afoul of its admonition in Chacon that a judge is not to substitute his or her own “business judgment” for that of the operator.
Highland submits that, because the court’s remand on the termination issue involved only
the issue of whether Highland established an affirmative defense, it cannot provide grounds for
the Commission to overturn the judge’s decision, in that the judge found that the Secretary’s case
failed at the prima facie case stage. According to Highland, Chacon and McGill are only relevant
to mixed motive cases,
and that the part of the judge’s decision holding that this is not such a
case was affirmed by the Commission and not challenged before the court. Highland further
argues that Chacon and McGill do not establish that every reason given by an operator must be
established before discipline can be sustained.
Pursuant to the Sixth Circuit’s ruling, we reject Highland’s suggestion that in this case the
Commission may view any one of the three reasons that Millburg gave for terminating Pendley’s
employment as sufficient by itself to justify Millburg’s actions. The court read the letter setting
forth the three reasons, as well as Millburg’s testimony on which Highland now relies, to
“suggest that the three reasons were not independently sufficient to motivate the termination.”
601 F.3d at 425.
The court later expressly rejected the argument Highland makes here, and
concluded that the reasons Millburg gave “have not been shown to be alternative and
independent reasons, but are, according to the decision-maker’s testimony, cumulative reasons
for termination.” Id. at 426 n.4. The court’s factual conclusion on the issue is “the law of the
case,” and thus must be accepted by the judge when the case is remanded. See Eastern Ridge
Lime Co., 21 FMSHRC 416, 421-22 (Apr. 1999) (holding in remanded case that decision of
court of appeals precluded Commission consideration of issue raised by operator).
In light of this holding and the Sixth Circuit’s discussion of our precedents in the
discrimination area, we remand this case to the judge so that he can clarify his discussion of
Pendley’s interference with the hoist test – the second of three reasons given by Highland for
disciplining Pendley.
30 FMSHRC at 495 n.43. Additional analysis of the hoist test
justification is critical in reconsidering the case consistent with Chacon and McGill.
In Chacon, the Commission concluded that the judge had improperly rejected an operator’s affirmative defense, in that the judge had applied a subjective standard of fairness and notion of what constituted an appropriate business practice. 3 FMSHRC at 2516. The Commission held that it was enough for the operator to show that it had and was motivated by legitimate business reasons for taking the action that it did. Id. at 2516-17.
In McGill, the Commission rejected the judge’s reliance on an affirmative defense that had not been relied upon by the operator. 23 FMSHRC at 989. Although the operator had argued that it would have fired the miner for certain unprotected conduct – insubordination, use of profanity, and an unfavorable work record – the judge instead found that the evidence supported an affirmative defense based solely on other unprotected conduct – the exercise of certain collective bargaining agreement rights. Id. at 987-88. The Commission rejected the judge’s rationale as having strayed beyond the proper bounds of inquiry into the operator’s affirmative defense. Id. at 988-89. Thus, McGill stands for the proposition that a judge may not substitute a different affirmative defense for the one relied upon by the operator.
The Court of Appeals’ succinct summary of these holdings is particularly instructive in this case:
Under McGill and Chacon, the Commission may not disbelieve part of an operator’s justification but nonetheless hold that in the Commission’s own view part of the asserted justification was “enough” to support the adverse action. The inquiry turns on what the operator actually believed at the time, not what the
Commission later reasons the operator could have relied upon in making is disciplinary decision.
601 F.3d at 426 (citation and footnote omitted; emphasis in original).
Thus, in light of the
judge’s opaque statement that one of the three reasons provided by Millburg for Pendley’s
termination (his interference with the hoist test) was not crucial to the validity of the termination,
the Court of Appeals finding that in fact the three reasons given were cumulative rather than
independent, 601 F.3d at 426 n.4, and the principles central to our holdings in McGill and
Chacon – that a judge must examine what an operator actually articulated as its reasons for
adverse action – we remand for the judge to determine the role that the hoist test did or did not
play in motivating the operator to discharge Pendley.
On remand, the judge must explain his reasoning in more detail. He made it clear that he believed that Highland’s reliance on Pendley’s confrontations with the office staff and his altercation with Creighton was credible and unquestionably sufficient to justify terminating Pendley. However, the judge did not explain why he did not more fully analyze the remaining justification – Pendley’s interference with the hoist test – and also make a determination as to whether it was credible. One possibility is that he may have simply concluded that Highland did not need to rely on the hoist test incident. Another possibility is that the judge may have thought that the evidence regarding the hoist test justification was equivocal or that it did not appear to support Highland’s reliance on that justification. However, we cannot discern the judge’s rationale in this regard.
The critical question for the judge is what Superintendent Millburg believed when he issued the termination letter. With regard to Millburg’s state of mind when he issued the termination letter, the judge needs to reconcile his statements regarding the hoist test, 30 FMSHRC at 495 n.43, with other findings in his opinion and with other relevant parts of the record. For example, the judge’s finding that “there was no alarm indicator or tag to indicate a hoist test was underway” implies that Pendley might not have been aware of the test. See id. However, elsewhere in his decision the judge noted that Millburg, when deciding to discipline Pendley, knew that Pendley may not have been fully aware of the hoist test until Creighton acted to prevent him from reaching the control panel. See id. at 481 (“[t]o Millburg, the important thing was Pendley shoved Creighton and interfered with the test”) (citing Tr. 1007). In addition, Millburg testified that Creighton told him immediately after the incident that Creighton had not told Pendley that the hoist test was occurring until Pendley began shoving him. TRH Tr. 228. Accordingly, Millburg may have disciplined Pendley for interfering with the hoist test regardless of whether Pendley’s interference with the test was intentional or was done inadvertently.
In short, the judge needs to reconsider his findings regarding the hoist test justification in
light of all the relevant record evidence, determine whether or not the hoist test justification was
credible, and explain in sufficient detail how he reached his conclusions. The judge then needs
to consider and explain how his determination on the credibility of the hoist test justification
affects his assessment of the operator’s business justification and his overall determination of
whether Pendley was discharged in any part for his protected activities.
The judge should weigh
all the evidence of protected activity, any evidence that Highland was motivated by that protected
activity when it terminated Pendley, and any evidence that the employer was solely motivated by
Pendley’s unprotected activity to reach a conclusion regarding whether Highland has successfully
rebutted the Secretary’s prima facie case by establishing that Pendley’s termination was in no
part motivated by protected activity.
II.
Issues Involving the Post-Reinstatement Working Conditions
A. Factual and Procedural Background
Following Pendley’s discharge, the Secretary sought and obtained the miner’s temporary reinstatement pursuant to section 105(c)(2) of the Mine Act. See 29 FMSHRC at 424, 428. Pendley returned to work at the Highland mine, and he remained working there until after the judge issued his decisions on the merits of the discrimination case the Secretary brought on Pendley’s behalf. While review of those decisions was pending the first time before the Commission, the judge, at the request of the parties, modified the order of reinstatement to reflect that Pendley was to be economically reinstated going forward. Unpublished Order (Aug. 14, 2008).
Prior to the merits hearing, the Secretary filed an amended complaint alleging that Highland had further discriminated against Pendley with respect to the work Pendley was assigned and other conditions of his employment when he returned to the mine under the temporary reinstatement order. 30 FMSHRC at 461. The judge concluded that while it had been demonstrated that ‘[s]ome of [Pendley’s] tasks may have been different from those he had before his suspension and termination,” the Secretary had failed to establish that the changes rose to the level of adverse action against Pendley. Id. at 496-98. Consequently, the judge held that “[t]he Secretary’s allegations of post-reinstatement discrimination . . . are found to be totally lacking in merit. ” Id. at 499 (emphasis omitted).
Before the Commission on appeal, Pendley took issue with the judge’s conclusion as to whether three of the aspects of the post-reinstatement working conditions constituted adverse action. With regard to two of those – the allegation that Highland had “bird dogged” Pendley upon his reinstatement and had publicly posted a letter identifying Pendley’s specific job duties during his reinstatement – the Commission unanimously upheld the judge. 31 FMSHRC at 81, 82. Pendley did not appeal those rulings to the Sixth Circuit; therefore, those issues cannot be raised on remand.
The third issue involved the scope of the work Pendley was assigned during his temporary reinstatement, which the Secretary had argued differed from the work Pendley was doing prior to his discharge. A majority of the Commission upheld the judge’s ruling that Pendley’s new job duties were not adverse action and thus could not provide the basis for a discrimination claim under the Mine Act. Id. at 81; 30 FMSHRC at 497. The majority affirmed the judge’s findings that the new duties were within Pendley’s job classification and did not entail more responsibility than he could handle within an eight-hour shift. 31 FMSHRC at 81; 30 FMSHRC at 497. The majority also affirmed the judge’s conclusion that there was no evidence to support a finding that the miner’s new assignments were motivated by his protected activity. 31 FMSHRC at 81; 30 FMSHRC at 497. Then-Commissioner Jordan dissented from the majority’s upholding of the judge on these issues. 31 FMSHRC at 86-88.
In its decision, the Sixth Circuit panel majority agreed in large part with Commissioner Jordan’s dissent on this aspect of the case. 601 F.3d at 426-27. The court held that the Commission majority, in concluding that post-reinstatement discrimination was not established because Pendley’s work assignments were not outside his job classification and could be completed within an eight-hour shift, had failed to reconcile that decision with applicable Mine Act precedent. Id. The court majority specifically cited Secretary on behalf of Glover v. Consolidated Coal Co., 19 FMSHRC 1529, 1531-37 (Sept. 1997), and stated that on remand the Commission should reexamine its reliance on Pendley’s job classification in light of the case, and consider its reliance on Pendley’s ability to complete the work within his shift in light of Commission precedent and the purposes of the Mine Act. 601 F.3d at 427.
The court further agreed with Commissioner Jordan that the holdings of the Commission majority with regard to the job description and work-shift questions called into question the majority’s conclusion that there was no evidence to support a finding that the miner’s new assignments were motivated by his protected activity. Id. at 427. Citing the Commission’s decision in Secretary on behalf of Garcia v. Colorado Lava, Inc., 24 FMSHRC 350, 354 (Apr. 2002), that the coincidence in time between protected activity and adverse action may show discriminatory intent, the court instructed the Commission that, if it does find that the changes in Pendley’s working conditions established that adverse action had been taken against him, on remand it also would need to reconsider whether discriminatory intent had been established. 601 F.3d at 427-28.
Consequently, the Commission’s briefing order on remand requested that the parties discuss the cited holding in Glover and apply it to the facts of this case. July 2, 2010 Unpublished Order at 2. The Commission also directed the parties to discuss whether Highland’s post-reinstatement treatment of Pendley constituted adverse action under the Mine Act and whether, if so, the proximity in time between Pendley’s protected activity and the adverse action establishes discriminatory intent under Colorado Lava, 24 FMSHRC at 354.
B. Disposition
With regard to the question of whether the post-reinstatement working conditions to which Pendley was subjected constituted adverse action by Highland against the miner, the Secretary takes the position that the Commission’s decision in Glover mandates reversal of the judge’s conclusion that adverse action against Pendley had not been established. Similarly, Pendley argues that, even prior to Glover, the Fourth Circuit had upheld a Commission judge’s ruling that less desirable work assignments can constitute adverse action for purposes of a retaliation claim under the Mine Act. Both the Secretary and Pendley also argue that the record contains evidence relevant under Chacon that tends to establish that Highland, in assigning the new tasks to Pendley, was motivated by the miner’s protected activity, including the most recent instance of such activity, i.e., exercising his rights under section 105(c)(2) and returning to work under an order of temporary reinstatement.
Highland takes the position that the tasks it assigned to Pendley after his reinstatement were much like the tasks he had been previously responsible for, and that, unlike in Glover, any new tasks Pendley was assigned were not dangerous. The operator further contends that even if Pendley’s new assignments could be considered adverse action against him, the record supports the conclusion that Highland was not motivated by Pendley’s protected activity in any part in assigning the new tasks to the miner.
In enacting the Mine Act, Congress made clear its intent that section 105(c) “be construed expansively to assure that miners will not be inhibited in any way in exercising any rights afforded by the legislation.” S. Rep. No. 95-181, at 36 (l977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 (1978) (“Leg. Hist.”). Moreover, in Moses v. Whitley Development Corp., 4 FMSHRC 1475 (Aug. 1982), the Commission held that section 105(c)(1) was intended to encourage miner participation in enforcement of the Mine Act by protecting them against “‘not only the common forms of discrimination, such as discharge, suspension, demotion . . . but also against the more subtle forms of interference . . . .’” Id. at 1478 (quoting S. Rep. No. 95-191, at 36, Leg. Hist. at 624).
As noted by the court in its decision, under the Mine Act the Commission has defined “adverse action” to constitute “‘an action of commission or omission by the operator subjecting the affected miner to discipline or a detriment in his employment relationship.’” 601 F.3d at 428 (quoting Sec’y on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984)). At the same time, the Commission has recognized that, while “discrimination may manifest itself in subtle or indirect forms of adverse action,” at the same time “an adverse action ‘does not mean any action which an employee does not like.’” Hecla-Day Mines Corp., 6 FMSHRC at 1848 n.2 (quoting Fucik v. United States, 655 F.2d 1089, 1096 (Ct. Cl. 1981)). Consequently, where the action alleged to be adverse against the miner is not self-evidently so – such as a discharge or suspension would be – the Commission will closely examine the surrounding circumstances to determine the nature of the action. Id. at 1848. “Determinations as to whether an adverse action was taken must be made on a case-by-case basis.” Id. at 1848 n.2.
It is within this context that the Commission decided Glover. The judge in Glover had held that the transfer of two miners from their work as “scooter barn” mechanics to positions as mine section mechanics constituted adverse action against the miners because the new positions required the miners to do “less desirable and more hazardous work.” 17 FMSHRC 957, 961-64 (June 1995) (ALJ). With regard to whether adverse action for purposes of the Mine Act had been established, it was enough for the Commission that there was substantial record evidence that the transfer to section mechanic duties meant that the miners’ job assignments had become more dangerous. 19 FMSHRC at 1534-35. Transfer to a working section meant the miners would be working on high-voltage electrical equipment and would be exposed to hazards such as dust, methane, and roof falls. Id. at 1531, 1534-35.
Importantly, in Glover the Commission noted that the transfer of the two miners to a different section of the mine “did not result in a change in job classification or salary rate.” Id. at 1531. Consequently, Glover demonstrates that the assignment of new job duties within a job classification can nevertheless still constitute adverse action under the anti-discrimination provisions of the Mine Act. It therefore was inconsistent with Glover for the Commission to narrowly focus on the job classification factor in determining whether Highland had taken adverse action against Pendley during the time he was reinstated.
The previous Commission majority also upheld the judge because there was no evidence that Pendley was unable to complete his new duties during his shift. 31 FMSHRC at 81; 30 FMSHRC at 497. The court held that this was reversible error and directed that on remand the Commission examine its reliance on such a consideration in light of Commission precedent and the purposes of the Mine Act. 601 F.3d at 427. The court noted that “[i]t is easy to imagine dangerous or arduous but quick-to-complete tasks that would constitute adverse action.” Id. In addition, in Hecla-Day the Commission was clear that, in determining whether adverse action has been taken against a miner, it will closely examine the surrounding circumstances to determine the nature of the action. 6 FMSHRC at 1848. Focusing simply on whether Pendley could perform all of the assigned tasks within his work shift would thus also run counter to the Commission’s directive in Hecla-Day. In light of the foregoing, the Commission, by relying heavily on the fact that Pendley could complete his new assignments during his shift, erred in its previous decision in this matter. A broader analysis is necessary to determine in discrimination cases whether an operator has taken an adverse action against a complaining miner. As the Sixth Circuit noted, the Commission has defined “adverse action” as “‘an action of commission or omission by the operator subjecting the affected miner to discipline or a detriment in his employment relationship.’” 601 F.3d at 438 (quoting Hecla Day, 6 FMSHRC at 1847-48).
The test articulated by the Supreme Court in Burlington Northern & Santa Fe Railway
Co. v. White, 548 U.S. at 57, should be applied in Mine Act cases to ascertain whether adverse
action occurred.
In Burlington Northern, a Title VII retaliation case,
the Supreme Court held
that the term “discriminate against” included those employer actions taken against an employee
that would have been “materially adverse to a reasonable employee.” Id. By this, the Court
meant “that the employer’s actions must be harmful to the point that they could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” Id.
The Court explained that it referred to reactions of a reasonable employee because it believed that the provision’s standard for judging harm must be objective, and emphasized that the significance of any given act of retaliation will often depend upon the particular circumstances, acknowledging that “an act that would be immaterial in some situations is material in others.” Id. at 68-69 (citations omitted).
This standard is eminently workable in section 105(c) cases. It acknowledges that a variety of actions may be taken by an operator that to a reasonable miner seeking to engage in protected activity under section 105(c)(1) would be retaliatory. It also recognizes that retaliatory action does not only affect the targeted miner, but other miners on whom it could have a chilling effect regarding the reporting of safety hazards. Alternative approaches setting a standard defining adverse action, such as requiring that new duties be more difficult or onerous, neglect to take into account the myriad of ways in which a supervisor can show displeasure by changing a miner’s tasks. Such a test would, for instance, preclude a finding of adverse action if a foreman ordered a miner to perform tasks that were clearly punitive and useless, but not particularly dangerous.
The judge should look anew at the evidence and arguments properly before him
and
apply the Burlington Northern standard to reach a conclusion regarding whether those conditions
were materially adverse to Pendley.
If the judge finds that Pendley’s post-reinstatement
working conditions constituted adverse action, he should then address the issue of the operator’s
motivation under Chacon and, as noted by the Sixth Circuit, Colorado Lava. See 601 F.3d at
428. In this regard, we note that Pendley’s bringing a discrimination complaint to MSHA and
consequently returning to work by way of temporary reinstatement was unquestionably “the
exercise . . . of [a] statutory right afforded by [the Mine] Act” within the meaning of section
105(c)(1).
III.
Conclusion
For the foregoing reasons, we remand this case to the judge for him to determine, consistent with this opinion, whether Highland discriminated against Pendley in violation of the Mine Act when it terminated Pendley from employment in March 2007 and whether it further discriminated against Pendley when he returned to work upon an order of temporary reinstatement.
____________________________________
Mary Lu Jordan, Chairman
____________________________________
Robert F. Cohen, Jr., Commissioner
____________________________________
Patrick K. Nakamura, Commissioner
Commissioners Duffy and Young, dissenting:
We respectfully disagree with our colleagues’ decision to remand this case to the judge for further consideration in light of the Sixth Circuit’s opinion. Despite the court’s instructions to consider applicable Commission precedent, we believe that the record compels only one conclusion and thus we see no need to remand this case. Accordingly, we would affirm the judge’s holding that the operator did not discriminate against Pendley. We first address the issue of Pendley’s termination which the court remanded to the Commission to address in light of applicable Commission precedent.
A. Issue on Remand Concerning Pendley’s Termination
Although the Sixth Circuit ruled that the Commission impermissibly ignored its own
precedents in analyzing Pendley’s claim of discriminatory termination, we disagree. The court
criticized the Commission for its failure to explain its perceived departure from its own
precedent. Pendley v. FMSHRC, 601 F.3d 417, 426 (6th Cir. 2010). Thus, we will now provide
the explanation the court deemed missing from the Commission’s initial decision.
We believe the specific cases cited by the court are inapplicable to the circumstances of this case. First, we believe that the court confused the prima facie case analysis, which is used in all discrimination cases, with the affirmative defense analysis, which is used in mixed motive cases, under Commission case law. In particular, it applied the affirmative defense analysis in a case where the judge did not find that the operator’s action was motivated in any part by protected activity. Second, we believe that even if the language in Chacon cited by the court applied here, there is no basis for overturning the Commission’s conclusion that no discrimination occurred. Indeed, to the extent that the judge ran afoul of the cited language in commenting on the operator’s justification for disciplining Pendley, any error is harmless.
Although the court believed that the Commission appeared to depart from precedent in upholding the judge, the court is mistaken in remanding the case on this point. That is because the portions of the precedents the court cites are only relevant to the affirmative defense stage of a discrimination proceeding, and the judge’s decision did not reach the issue of whether Highland had established an affirmative defense. Instead, the judge decided either that the Secretary had failed to establish a prima facie case that Pendley’s termination was motivated in any part by his protected activity, or that Highland rebutted the Secretary’s case by showing that the termination was in no part motivated by Pendley’s protected activity. See 30 FMSHRC 459, 494 (May 2008) (ALJ) (judge stated that he disagreed with the Secretary’s contention that Highland’s knowledge of Pendley’s protected activities motivated the adverse action), 494-95 (detailing Pendley’s actions over the two days previous to the decision to suspend and terminate him that the judge found persuasive as to the reasons that Highland decided Pendley’s employment should be terminated).
The Secretary had argued before the Commission that the judge had erred in his analysis of Highland’s motivation, in that he had engaged in an inadequate examination of the factors that had been found in Chacon and other cases to be relevant regarding motivation. S. Br. at 19-26, 32-33. The Commission, however, rejected those arguments, holding that the judge had properly found that the direct evidence of non-discriminatory reasons for Pendley’s discharge outweighed the circumstantial evidence of discriminatory intent on which the Secretary based her case of motivation. 31 FMSHRC 61, 79-80 (Jan. 2009) (citing Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 329-31 (Apr. 1998)).
We see nothing in the court’s decision that disturbs this portion of the Commission’s
decision. The Sixth Circuit panel began its analysis by affirming the Commission’s Pasula-Robinette framework as the proper one for deciding discrimination cases. 601 F.3d at 423 (citing
Collins v. FMSHRC, 42 F.3d 1388, 1994 WL 683938 (6th Cir. 1994) (unpublished per curiam
table decision)). However, unlike the Commission, which addressed the affirmative defense
issue on an alternative basis in addition to upholding the judge on the Secretary’s failure to
establish motivation,
the court did not distinguish between the different elements of the Pasula-Robinette framework. Rather, the court addressed the issues raised on appeal by Pendley with
little regard to whether the issue was relevant solely to whether motivation had been established,
solely to the issue of whether an affirmative defense had been established, or to both issues.
Two issues raised by Pendley before the court went solely to whether the Secretary had established a prima facie case of discrimination under the Mine Act. First, Pendley argued that the Commission erred in permitting the judge to consider a 2005 warning letter to Pendley of which Millburg was not aware of at the time he made his decision. The court disagreed, and upheld the Commission’s conclusion that the judge did not consider it as evidence of Highland’s motivation, but rather merely discussed it to highlight Pendley’s culpability. 601 F.3d at 424.
The court also rejected Pendley’s suggestion that the judge erred, once he found that Pendley and Creighton had engaged in an altercation, in not considering the disparity in Highland’s treatment of Pendley and Creighton (who was not discharged for his role in the altercation) as evidence of improper motivation on the part of Highland. Id. at 425. The court concluded that the judge handled the issue correctly, given that Pendley and Creighton could not be considered to be similarly situated with respect to their behavior immediately preceding the incident. Id.
At that point, the court turned to the Commission’s review of the judge’s decision. The passage in the Commission’s decision that the court took issue with – “the judge’s role in examining the reasons for Pendley’s discharge under the Mine Act does not require that he adopt every reason given by the operator in order to sustain the discipline under the collective bargaining agreement” – was clearly part of the Commission’s prima facie case analysis. See 31 FMSHRC at 79. The court, however, reviewed that statement not in light of Commission prima facie case precedent, but under the affirmative defense case law of McGill and Chacon. 601 F.3d at 425-26.
In McGill, the judge found that the Secretary had established a prima facie case of discrimination, and the Commission upheld the judge’s conclusion. 23 FMSHRC at 986-87. However, the judge did not address the affirmative defense relied upon by the operator — that it would have fired the miner in any event for unprotected conduct (his insubordination and use of profanity in a confrontation with a supervisor, along with his past work record). Id. at 988 & n.5. Instead, he found that the evidence established that the operator fired the miner for other unprotected conduct, primarily having to do with his exercise of collective bargaining agreement rights. Id. at 988. The Commission rejected the judge’s finding of an affirmative defense on such grounds as having strayed beyond the proper bounds of inquiry into whether such a defense had been established. Id. at 988-89. Thus, McGill stands for the proposition that, in determining whether an operator has established an affirmative defense, a judge may not substitute a different affirmative defense for the one relied upon by the operator.
In Chacon, the Commission upheld the judge’s conclusion that the Secretary had established a prima facie case of discrimination. 3 FMSHRC at 2510-14. With regard to the judge’s rejection of the operator’s affirmative defense, the Commission concluded that the judge’s analysis was improper, in that he applied a subjective standard of fairness and notion of what constituted an appropriate business practice under the circumstances. Id. at 2516-17. The Commission held that it was enough for the operator to show that it had legitimate business reasons for taking the action that it did. Id. Accordingly, Chacon stands for the proposition that, in analyzing an operator’s affirmative defense, a judge may not second-guess the operator’s business judgment as to whether an employee’s action warranted a disciplinary measure.
From the court’s decision in this case, it is clear that the court was focusing on the affirmative defense portion of both McGill and Chacon. The court stated that:
[i]n analyzing an operator’s asserted justification for taking adverse action under Pasula-Robinette, the inquiry is limited to whether the reasons are plausible, whether they actually motivated the operator’s actions, and whether they would have led the operator to act even if the miner had not engaged in protected activity. [Chacon]. The Commission may not impose its own business judgment as to an operator’s actions. Id. Further, under
[McGill], the Commission may not substitute its own justification for disciplining the miner over that offered by the operator.
601 F.3d at 425. In remanding the case to the Commission, the court stated:
The Commission’s decision is inconsistent with its own case law. Under McGill and Chacon, the Commission may not disbelieve part of an operator’s justification but nonetheless hold that in the Commission’s own view part of the asserted justification was “enough” to support the adverse action. The inquiry turns on what the operator actually believed at the time, not what the Commission later reasons the operator could have relied upon in making its disciplinary decision.
Id. at 426 (footnote and citation omitted) (emphases in original).
It is significant that the court’s citations to the Commission cases are from the affirmative
defense stages of those cases, not the prima facie case stages. Moreover, in their briefs on
remand both the Secretary and Pendley describe, from the outset, the issue remanded by the court
as going to the validity of Highland’s affirmative defense. S. Remand Br. at 1-2; P. Remand Br.
at 1. The Secretary in her response brief also does not directly address Highland’s point (H.
Remand Br. at 1-3) that the court’s remand involves an issue that does not provide a basis to
overturn the judge’s ruling that the Secretary failed to establish a prima facie case of
discrimination.
The reasons an operator gives for taking an adverse action against a miner are generally relevant to both the prima facie case analysis and, if it is reached, the operator’s affirmative defense. See, e.g., Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1071-72 (prima facie case analysis), 1073-77 (affirmative defense analysis) (May 2011). However, that does not mean that Commission precedent with respect to one analysis is equally relevant to the other analysis. The Commission has been clear that the validity of an operator’s affirmative defense is reached only if a prima facie case has been established. See Sec’y on behalf of Glover v. Consolidated Coal Co., 19 FMSHRC 1529, 1537 (Sept. 1997); Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 526 (Apr. 1991). It should be noted, however, that the Commission and its judges have often addressed affirmative defense issues even after finding that the operator’s motivation was not established to be discriminatory, in the event that the finding of a lack of motivation is overturned on review.
The distinction between the precedents applicable to the different stages arises because of
the fundamental differences in the two stages of analysis. At the prima facie case stage, the
operator’s reasons for disciplining the miner are examined, as part of the overall analysis of its
motivation, for evidence of disparate treatment of the miner by the operator relative to other
similarly situated miners, or other evidence that the action the operator took was pretextual in
nature. See generally Chacon, 3 FMSHRC at 2510, 2512-13. The operator’s reason or reasons
for the action are not subject to rigorous scrutiny, because at the prima facie case stage the
burden of persuasion remains with the Secretary (or, in the absence of the Secretary, the miner).
In contrast, at the affirmative defense stage, the operator’s reasons are subject to greater scrutiny
because the judge must have necessarily already concluded that the adverse action was
motivated, at least in part, by the miner’s protected activity.
In the instant case, the judge examined the operator’s reasons for discharging Pendley, and found that they constituted sufficient evidence of a lack of discriminatory motivation for purposes of the prima facie case stage of the proceeding. He found evidence supporting all three reasons Millburg gave: (1) the miner’s confrontations with office staff (30 FMSHRC at 494-95); (2) the physical incident between Pendley and Creighton immediately following the second of those confrontations (id. at 495); and (3) and that the incident occurred at a mine hoist during a safety check of the equipment there (id. at 495 n.43).
The judge also reached conclusions regarding the extent to which Highland could rely on the reasons as a basis for disciplining Pendley. The judge found: (1) that the confrontations with the office staff actually occurred, were quite serious in that Pendley put the office employees in fear for their safety, and thus were critical to Millburg’s decision to terminate Pendley’s employment (id. at 494-95); and (2) that the incident with Creighton, while it may not have risen to the level of the term “assault” used by Millburg was at least an altercation for which Pendley should bear the brunt of responsibility. Id. at 495. However, the judge concluded that Pendley’s interference with the hoist test was not “crucial to the validity of the disciplinary action.” Id. at 495 n.43. He also credited Pendley’s testimony that there was no alarm indicator or tag to indicate that a hoist test was underway. Id.
Relying on the Commission’s rulings in McGill and Chacon on the limits of an examination of an affirmative defense, the court took issue with the judge’s statement that the first two reasons were enough, in his view, to justify Highland’s discharge of Pendley. 601 F.3d at 425-26. However, the judge did not make that statement as part of an affirmative defense analysis; he made it during his prima facie case analysis in examining Highland’s motivation. The judge never reached the issue of the operator’s affirmative defense and, accordingly, he never conducted an affirmative defense analysis.
The judge may have been ill-advised to speculate on whether Highland would have discharged Pendley regardless of the hoist test interference accusations, because it was unnecessary to his conclusion on motivation. However, nothing in either McGill or Chacon suggests that the judge’s findings that may have been improper in an affirmative defense analysis would have been likewise improper in a prima facie case analysis. Moreover, and importantly, the court did not hold, and the Secretary does not argue, that such a conclusion is mandated by the terms of the Mine Act’s anti-discrimination provisions.
When this case was previously before the Commission, the Secretary argued that Pendley did not knowingly interfere with the hoist test and that Millburg’s inclusion of this reason in his letter demonstrated that Highland’s discharge of Pendley was a pretextual explanation. See S. Br. at 25-26. According to the Secretary, it was thus error for the judge to nevertheless conclude that Pendley’s unprotected conduct was the sole reason for his discharge by Highland. Id. at 30.
In upholding the judge’s prima facie case analysis, the Commission rejected the notion
that there was sufficient evidence of pretext to disturb the judge’s conclusion regarding
motivation. It was at that point that the Commission went on to make the statement that the court
found to be possibly contrary to Commission precedent. See 31 FMSHRC at 78-79. During the
prima facie case stage, it is not necessary that the operator be found to have been entirely correct
regarding the employee’s actions, as the burden is not on the operator. Accordingly, we believe
that the Commission was on solid ground in making the statement in question, in the context of
the prima facie case.
Even if we assume that the language in Chacon applied at the prima facie case stage, we do not believe that the language would provide a basis for reversing the Commission’s decision in this case. The judge in his footnote discussion opined that Pendley’s interference with the hoist test was not “crucial” to the operator’s justification for terminating Pendley’s employment. 30 FMSHRC at 495 n.43. The Secretary argues that this resulted in the judge “reformulating” the grounds on which Highland defends its decision to terminate Pendley, which she maintains is contrary to Chacon. S. Remand Br. at 5. To reach that question, however, it is first necessary to decide whether the judge was correct in discounting one of the reasons Highland gave for disciplining Pendley. Our reading of Chacon is that the judge erred in doing so.
The relevant language of Chacon provides that, if an operator’s justification survives pretext analysis, i.e., it “is not plainly incredible or implausible,” a judge should not question an operator’s business justification for an adverse action because the judge has a different view regarding whether the operator’s judgment was “just” or “wise” or comports with the judge’s “sense of fairness.” 3 FMSHRC at 2516-17. Instead, the question is “whether the reason was enough to have legitimately moved that operator to have disciplined the miner.” Id. at 2517 (citation omitted).
In light of this language from Chacon, the judge should not have included in his opinion the footnote discussion discounting the importance of Pendley’s interference with the hoist test. That footnote discussion directly and impermissibly questioned Highland’s business judgment as to whether Pendley’s actions in connection with the hoist test warranted discipline.
Moreover, as the Sixth Circuit itself stated, “[t]he inquiry turns on what the operator actually believed at the time, not what the Commission [or a Commission judge] later reasons the operator could have relied upon in making its disciplinary decision.” 601 F.3d at 426 (citing Pasula, 2 FMSHRC at 2800) (emphasis in original). The judge found that Millburg, when deciding to discipline Pendley, knew that Pendley may not have been fully aware of the hoist test until Creighton acted to prevent him from reaching the control panel. See 30 FMSHRC at 481 (“[t]o Millburg, the important thing was Pendley shoved Creighton and interfered with the test”) (citing Tr. 1007); TRH Tr. 228 (Millburg stating that Creighton told him immediately after the incident that he had not told Pendley that the hoist test was occurring until Pendley was shoving him). In other words, the record indicates that Millburg believed that Pendley had either intentionally or negligently interfered with the hoist test. Under Chacon, the judge was not entitled to second-guess Highland’s judgment as to whether Pendley’s actions at the hoist test site warranted discipline.
It is significant that neither the judge nor the Commission has found that the hoist test
justification was “plainly incredible or implausible” or otherwise proffered in bad faith.
Instead,
the judge opined that the hoist test interference point was not “crucial” and implied that Pendley
may not have been aware of the test. The key statement in the footnote is the following: “It was
enough, in my view, that Pendley was involved in the oral altercation with the office employees
and the physical altercation with Creighton.” 30 FMSHRC at 495 n.43. In other words, the
judge believed that the other two incidents so strongly supported the operator that it was not even
necessary to fully analyze the remaining justification. However, as discussed above, the judge’s
approach inadvertently ran afoul of Chacon because the result was that the judge rejected part of
the operator’s business justification without any factual or legal basis for doing so.
Our colleagues, in instructing the judge on remand “to determine the role that the hoist test did or did not play in motivating the operator to discharge Pendley,” would have him focus on “what Superintendent Millburg believed when he issued the termination letter.” Slip op. at 8. Even if the judge were to address the evidence regarding Millburg’s state of mind, at the very least, the evidence clearly supports the conclusion that Millburg knew that Pendley interfered with the hoist test. 30 FMSHRC at 481; TRH Tr. 228. Although the judge’s statement that testimony shows that “there was no alarm indicator or tag to indicate a hoist test was underway” (30 FMSHRC at 495 n.43) implies that Pendley may not have been aware of the test, whether Pendley knew a test was underway, i.e., whether he intentionally or inadvertently interfered with the test, is irrelevant to Millburg’s state of mind. Moreover, the judge did not address Millburg’s testimony that Creighton, by staying near the control panel, was thus serving as the equivalent of a tag, which is a practice the company had engaged in before. TRH Tr. 180, 207-08. Hence, regardless of Pendley’s state of mind, the evidence supports the conclusion that at the time that Millburg issued the termination letter, Millburg knew that Pendley had created a safety hazard by interfering with the hoist test. As the Commission stated in Chacon and McGill, it is not the role of the judge or the Commission to second-guess whether this proffered reason for discharging Pendley is adequate or justified.
In short, the judge’s footnote discussion questioning Highland’s business judgment was
either error or, at the very least, dicta. To the extent that it was error, it should be regarded as
harmless error because it did not affect the judge’s ultimate conclusion that the Secretary had
failed to establish a prima facie case. Accordingly, we believe there is no basis for changing the
Commission majority’s holding that Pendley failed to meet his burden of establishing unlawful
discrimination.
B. Post-Reinstatement Changes in Pendley’s Job Duties
The court instructed the Commission to reexamine our reliance on Pendley’s job classification in light of our decision in Glover, 19 FMSHRC at 1537, and consider our reliance on Pendley’s ability to complete the work within his shift in light of Commission precedent and the purposes of the Mine Act. 601 F.3d at 426-27. The Secretary’s adverse action claim boils down to the following: “Pendley’s duties were changed and he was given more work than an employee would be able to accomplish in his normal hours and more than other employees received.” S. Post-Hr’g Br. at 52 (citing Pendley at Tr. 184-85; Alvey at Tr. 521; Baxter at Tr. 434). According to the Secretary, this was sufficient to establish adverse action, because in Glover the Commission held that “assignments [that] entailed ‘less desirable’ and ‘more arduous or difficult’ work” constituted adverse action. S. Remand Br. at 12.
As an initial matter, we do not necessarily agree with the Secretary that the Commission held in Glover that the assignment of more difficult or less desirable tasks constitutes adverse action. We read the Commission’s decision in Glover, as opposed to the judge’s decision, to be focused almost exclusively on the danger posed by the new work assignments. While the Commission held that substantial evidence supported the judge’s finding that the miners’ new duties also involved less “desirable work,” in that they were expected to perform heavy lifting (19 FMSHRC at 1534), the Commission, in upholding the conclusion that adverse action was established, relied only on the findings of the dangers and hazards posed by the work. See id. at 1534-35.
We believe that it is simply not enough that the new assignments be ones that are “less
desirable,” as suggested by the Secretary and Pendley. See S. Remand Br. at 7, 9; P. Remand Br.
at 5. In Glover, the Commission affirmed its earlier statement in Secretary on behalf of Price v.
Jim Walter Resources, Inc., 12 FMSHRC 1521, 1533 (Aug. 1990), that adverse action “is not
simply any operator action that a miner does not like.” 19 FMSHRC at 1535. In our opinion,
using terms like “desirable” in comparing work assignments for purposes of determining whether
adverse action occurred comes too close to the admonition in Jim Walter.
Instead, we find instructive the example the court gave regarding the reassignment of a miner to spend his day cleaning lavatories. The court characterized such work as a “more onerous and distasteful task,” and suggested that just because the work was not dangerous did not mean the reassignment to it could not qualify as adverse action under the section 105(c). 601 F.3d at 427 n.5. This is consistent with court precedent under Title VII. See Longstreet v. Ill. Dep’t of Corrections, 276 F.3d 379, 383-84 (7th Cir. 2002) (requiring that for a reassignment to constitute adverse action, evidence must be sufficient to establish that new duties were “more onerous”).
The question of whether the evidence regarding Pendley’s new assignments meets the standard for adverse action remains. As noted, before the judge the Secretary argued little more than that Pendley was given more than he could accomplish in his eight-hour shift. The judge was not persuaded that such was the case (30 FMSHRC at 497 & n.46), and his conclusion on the issue (as opposed to the relevancy of the issue) was not appealed to the Commission by Pendley, whose counsel handled the post-reinstatement issues.
Pendley’s counsel did argue to the Commission that the record evidence regarding the substance, and not just the quantity, of the tasks Pendley was assigned upon reinstatement established adverse action. Pendley’s testimony regarding Highland’s requirement that he move three full pallets of glue by hand, rather than permitting him to use a forklift, was cited as evidence of the more arduous and difficult work Pendley was assigned when he returned to the mine. P. Br. at 4-5 (quoting Tr. 1081-82 (testimony of Pendley)); see also Tr. 521-22 (testimony of co-worker Bernard Alvey). However, both the Commission and the court rejected the glue incident argument, on the ground that it had not been presented to the judge and thus had not been preserved for appeal. 601 F.3d at 428; 31 FMSHRC at 81-82 n.24.
Once arguments on the evidence that have been rejected by the Commission and the court are removed, the Secretary is left only with the testimony of Pendley on his having to wash the “nurse car” that was used to deliver oil. See S. Remand Br. at 11-12 (quoting Tr. 185-87). Highland’s brief details the evidence that it believes shows that Pendley’s new nurse car duties were justified under the circumstances and did not rise to the level of adverse action against the miner. H. Remand Br. at 11-12. Consequently, given our opinion that in order to constitute adverse action a new assignment must be more difficult or onerous, and not just less desirable, we conclude that the evidence compels the conclusion that the operator did not take adverse action against Pendley when it assigned him the new duties. See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (stating that where evidence supports only one conclusion, remand on that issue unnecessary). In Longstreet, where the plaintiff’s evidence that a new job assignment was more onerous consisted solely of her testimony, and there was evidence that she nevertheless was able to perform the new assignment, the court held that the evidence was too “thin” to establish that the new assignment constituted adverse action. 276 F.3d at 383-84.
Because we do not think that Pendley’s new job duties constituted adverse action, it is not
necessary to address the question of motivation.
Accordingly, we see no need to remand this case to the judge for further proceedings and affirm the judge’s decision that Highland did not discriminate against Pendley.
____________________________________
Michael F. Duffy, Commissioner
____________________________________
Michael G. Young, Commissioner
Distribution:
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., Room 2220
Arlington, VA 22209-2296
Melanie J. Kilpatrick, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington, KY 40513
www.rwktlaw.com
Wes Addington
Appalachian Citizens Law Center, Inc.
317 Main St.
Whitesburg, KY 41858
www.appalachianlawcenter.org
Matthew Babbington, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2247
Administrative Law Judge David F. Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N. W., Suite 9500
Washington, D.C. 20001-2021