Secretary of Labor on behalf of Carlos Lopez v. Sherwin Alumina, LLC, and its Successors

Plain-English summary

Carlos Lopez reported safety hazards, supported greater MSHA oversight, and reported supervisors who breached his lockout tags before hot condensate sprayed him. Sherwin Alumina suspended and fired Lopez while treating the supervisors involved in the unsafe incident more leniently. Judge Jacqueline R. Bulluck found close timing, management knowledge and hostility, disparate treatment, and pretext in the company's investigation and stated reasons for discharge. She granted the discrimination complaint, ordered reinstatement and other corrective relief, and assessed a $45,000 civil penalty. Final back-pay, interest, and make-whole amounts were left for a later order.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was granted, reinstatement and corrective relief were ordered, and a $45,000 civil penalty was assessed.
• Key point: A pretextual investigation and harsher treatment of a known safety advocate supported a finding that protected activity motivated the termination.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE:
202-434-9987 / FAX: 202-434-9949

March 19, 2014

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of CARLOS
LOPEZ                                                                                                                                                                                                                                                                                          Complainant

v.

SHERWIN ALUMINA, LLC,

and its SUCCESSORS,                                                                                                                                                                                                                                    
                                   Respondent

DISCRIMINATION PROCEEDING

Docket No. CENT 2012-237-DM

Case No. SC-MD-11-23

Mine: Sherwin Alumina                                                                                                     
                                                                                                   Mine
ID: 41-00906

DECISION

Appearances:   Elizabeth
M. Kruse, Esq., Josh Bernstein, Esq., U.S. Department of Labor, Office of the
Solicitor, Dallas, Texas, on behalf of Complainant;

Christopher V. Bacon, Esq., Vinson
& Elkins, LLP, Houston, Texas, for Respondent.

Before:            Judge Bulluck

This case is before me upon a Discrimination
Complaint brought by the Secretary of Labor (“Secretary”) on behalf of Carlos
Lopez (“Lopez”) against Sherwin Alumina, LLC, and its Successors (“Sherwin”),
pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977
(“Act”), 30 U.S.C. § 815(c). The Secretary contends that Sherwin unlawfully
suspended Lopez on or about September 21, 2011, and terminated him on or about
October 19, 2011 from its Gregory, Texas Plant, because Lopez engaged in
certain activities that were protected under the Act.

On September 28, 2011, Lopez filed a
Discrimination Complaint with the Secretary’s Mine Safety and Health
Administration (“MSHA”) under section 105(c)(2) of the Act.[1]                    
MSHA special investigator Jerry Anguiano conducted an investigation and,
consequently, the Secretary determined that a violation of section 105(c) had
occurred. On December 27, 2011, the Secretary filed a Discrimination Complaint
on behalf of Lopez, alleging that Sherwin illegally terminated him for engaging
in activities protected under section 105(c) of the Act, including making
hazard complaints to MSHA, making safety complaints to Sherwin management, and
publically advocating an increased MSHA presence at the Plant. A hearing was
held in Ingleside, Texas.

For the reasons set forth below, I conclude that
the Secretary has established a prima facie case of discrimination under
the Act, and that Sherwin has failed to rebut the Secretary’s prima facie
case or defend its actions by proving that it would have terminated Lopez for
his unprotected activity alone.

I.   Stipulations                                                                                                                                  

The parties stipulated to the following:

1.   The Federal Mine
Safety and Health Review Commission has jurisdiction over this action, pursuant
to section 113 of the Mine Act, 30 U.S.C. § 823.

2.    This
action is brought by the Secretary pursuant to the authority granted by section
105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2).

3.   At
all relevant times, Sherwin Alumina, LLC, Respondent, was an operator as this
term is defined by section 3(d) of the Mine Act, 30 U.S.C. § 802(d).

4.  At
all relevant times, Respondent was also a person within the meaning of sections
3(f) and 105(c) of the Mine Act, 30 U.S.C. §§ 802(f), 815(c).

5.  Respondent
produces products that enter commerce or has operations or products that affect
commerce, all within the meaning of sections 3(b), 3(h) and 4 of the Mine Act,
30                                                                                                                                                                
        U.S.C. §§ 802(b), 802(h) and 803.

6.   At
all relevant times, Respondent employed Complainant as a maintenance mechanic
at the Sherwin Alumina, LLC, facility.

7.   At
all relevant times, Complainant was a miner within the meaning of section 3(g)
of the Mine Act, 30 U.S.C. § 802(g).

8.   At
the time of his termination, Lopez was earning $32.55 an hour.

9.   Pursuant
to the settlement agreement on temporary reinstatement, Lopez was economically
reinstated on November 21, 2011, and has been paid as if he had been working 48
hours a week: 40 hours at his regular rate of pay of $32.55 an hour, and eight
hours at his over-time rate of $48.33. Lopez has been receiving all employee
benefits, including health benefits.

10.  Complainant
engaged in protected activity within the meaning of section 105(c)(1) of the
Mine Act, 30 U.S.C. § 815(c)(1), when he reported safety hazards and violations
to agents at the mine on or about September 12, 2011, and when he filed a
Complaint with MSHA on September 29, 2011.[2]

11.  Respondent
was aware of Complainant’s protected activity.

12.  Complainant’s
tags were properly placed and visible.                    

Tr.
48-50.

II.    Factual
Background

Sherwin
Alumina processes bauxite to produce smelter grade alumina at its Plant in
Gregory, Texas. Tr. 551-52; Ex. C-18 at 7. Carlos Lopez worked at the Plant as
a maintenance mechanic since 1974, and served on Sherwin’s TIDES committee.[3]
Tr. 206; Ex. R-30 at 36-37. In 2008, Lopez called MSHA to report a safety
hazard involving a displaced valve in the Clarification section. In 2009, he
contacted MSHA about an improperly drained tank in the Digestion section and,
in 2010, he reported overhead bridge drains in Digestion that had fallen and
landed dangerously close to miner.  Tr. 207-10. Also in 2010, Lopez warned his
supervisor, unit manager Michael Douglas, that he would call MSHA if Sherwin
did not fix certain leaking valves. Tr. 211-12, 394-95.                    

In August
2011, Sherwin held a series of informational meetings in which it delivered a
presentation to its workforce entitled the “MSHA Threat.” Tr. 370-75; Ex. R-29
at 19. In each of several sessions, eighty to ninety miners were made aware
that Sherwin was receiving a high number of citations which, if continued,
could place the company in a Potential Pattern of Violations (“PPOV”) status. Sherwin
was extremely concerned about this situation, since PPOV status is the
precursor to substantially increased fines and heightened oversight by MSHA. Tr.
370-71. During the presentation that Lopez attended, Lopez publically voiced a
view contrary to the intended message of the meeting, that “it [would] be a
good thing for MSHA to be on-site.” Tr. 221.

On
September 12, 2011, Lopez, working in the Digestion department on the B shift,
was assigned to blind the valves of the 5-8 heater to prepare it for cleaning. Tr.
223-24; Ex. R-16.[4]                     Before
he began the task, Lopez, in accordance with Sherwin’s lockout/tagout policy
(“LO/TO”), placed “Do Not Operate, Men Working” tags on the heater’s valves at
the three levels from which the heater can be accessed. Stip. 12; Tr. 73, 226;
Exs. C-5 at 1, C-14. At some point during the job, Lopez advised the team
resource coworker, Isaac Jaramillo, that he was encountering difficulty
completing the task because vapor valves on top of the heater were leaking. Tr.
224-25.Lopez continued working at ground level, standing on a platform to work
on the condensate feed valve, when his immediate supervisor, Larry Mayfield,
walked past him and traveled up the stairs to the third level of the heater. Mayfield
inserted a homemade air ejector into a vent valve, forcing air into the
tagged-out system. Tr. 226, 234, 303; Ex. R-3.The introduction of air into the
heater caused condensate to blow out of the flange, spraying Lopez on his back
and causing him to jump from the platform. Tr. 228-32.[5]
As Mayfield was coming back down to ground level, he saw Lopez get sprayed, and
told him that he would get a safety system trainer (“SST”) to address the
accident.[6] Tr. 234.Thereafter,
Mayfield and SST Eugene (“Gene”) Carter returned to where Lopez was working,
proceeded up to the third level and, again, breaching the tags, Mayfield, at
Carter’s instruction, re-enacted insertion of the air ejector. Tr. 235, 338,
410.This time, however, no condensate was released. Tr. 236, 338. Thereafter,
as a result of the incident, Lopez, Mayfield and Carter went to Carter’s
office, and Lopez was sent to the medical unit to get checked-out Tr. 237.

Two
days after the condensate release, on September 14, Lopez, Mayfield, Carter,
their supervisor Douglas, TIDES facilitator John Gomez, safety manager Gus
Aguirre, and union president Terry Howard participated in a Root Cause Analysis
(“RCA”) meeting as part of an investigation of the incident. Tr. 51, 75-77,
144, 404. Douglas and Aguirre asked Lopez, Mayfield, and Carter to give
accounts of the incident. Tr. 406-10. While the accounts were similar, Mayfield
stated that when he first arrived on the scene, he invited Lopez to accompany
him to the third level to install the air ejector, but Lopez told him that
using the ejector was a stupid idea that would not work. Tr. 407. Lopez’s
version of events did not include Mayfield’s alleged invitation. Two days
later, Douglas, refinery manager David Buick, and administration director John
Vazquez, troubled by the discrepancy between Mayfield’s and Lopez’s versions of
the initial breach, decided that they needed to meet with Lopez again to give
him “the opportunity to put his . . . story on the table.” Tr. 563.

On
September 19, Douglas and operations coordinator Joe Contreras met with Lopez
and his union representatives Terry Howard and Tim Galvan. Tr. 153, 415, 417. Douglas
gave Lopez, Howard and Galvan unsigned copies of Lopez’s, Mayfield’s and
Carter’s written statements. Tr. 415-17; Exs. R-2, R-3, R-4. Douglas and
Contreras left the room while Lopez and his representatives reviewed the
statements. Tr. 417. When they re-entered, Douglas asked Lopez whether the
handwritten statement was, in fact, his, and Lopez replied “can’t answer that.”               
Tr. 417-18. Douglas then discussed Mayfield’s and Carter’s statements with
Lopez and his representatives, who underlined the parts of the statements which
they believed to be inaccurate. Tr. 421-23; Ex. R-5 at 2-3. Douglas then asked
Lopez to submit another written statement. Tr. 424. Howard responded that Lopez
was in no shape to give a statement, because he was stressed out from
discovering that Sherwin had locked him out of the Plant earlier that morning. Tr.

424. After a short break, Lopez signed the original statement. Ex. R-2.

The
next day, Douglas held a meeting with Buick and other managers to discuss the
results of the investigation and discipline for Mayfield, Carter and Lopez. Tr.
433-34, 437.                     Because Douglas was their supervisor, he
presented information to the managers about the incident and their disciplinary
records. Tr. 434; Ex. R-30 at 76. After Douglas’ presentation, the managers
agreed to recommend that Mayfield be suspended with a view toward termination,
that Carter be suspended only, and that Lopez be suspended pending further
investigation which, as in Mayfield’s case, was intended to result in
termination. Tr. 436, 438, 447. After the meeting, Buick summarized the
managers’ discussion in an email. Ex. R-31.

On
September 21, Sherwin issued to Lopez an Hourly Personnel Action, which
notified him that he was suspended for five days pending further discipline for
“failing to notify co-workers of the red tag status of 5-8 heater and
obstructing an ongoing safety investigation into the 5-8 heater incident.” Tr.
472; Ex. R-16. Pursuant to the managers’ recommendation that Lopez be
terminated, Vazquez reviewed the documentation, including Lopez’s personnel
file, and concurred with the recommendation; Sherwin terminated Lopez on
October 19, 2011. Tr. 564-65, 574.                                               

III.      Findings
of Fact and Conclusions of Law              

In order to establish a prima facie
case of discrimination under section 105(c) of the Act, a complainant must
prove by a preponderance of the evidence “(1) that he engaged in a protected
activity, and (2) that the adverse action was motivated in any part by the
protected activity.”[7]  Sec’y of Labor on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct.
1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981). The Commission has noted that “direct evidence of
motivation is rarely encountered; more typically, the only available evidence
is indirect.”  Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Circumstantial evidence
may include: 1) coincidence in time between the protected activity and the
adverse action; 2) knowledge of the protected activity; 3) hostility or animus
toward the protected activity; and 4) disparate treatment. The more that
hostility or animus is specifically directed toward the protected activity, the
more probative it is of discriminatory intent. Id. at 2510.

Once
the complainant has established a prima facie case, “[t]he operator may
attempt to rebut [the] prima facie case by showing either that the
complainant did not engage in protected activity or that the adverse action was
in no part motivated by protected activity.” Sec’y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n.20 (Apr. 1981). The
operator may also affirmatively defend its actions by proving, by a
preponderance of the evidence, that it was motivated by both the miner’s
protected and unprotected activities, and would have taken the adverse action
for the unprotected activity alone. Robinette, 3 FMSHRC at 818. The
Commission has explained that an affirmative defense should not be “examined
superficially or be approved automatically once offered.”  Haro v. Magma
Copper Co., 4 FMSHRC 1935,
1938 (Nov. 1982). In reviewing affirmative 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
explained that “pretext may be found, for example, where the asserted
justification is weak, implausible, or out of line with the operator's normal
business practices.” Sec'y of Labor on behalf of Price v. Jim Walter Res.,
Inc., 12 FMSHRC 1521, 1534 (Aug. 1990).  However, the Commission has also
stated that “[its] judges should not substitute for the operator’s business
judgment [their] views of “good” business practice.” Chacon, 3 FMSHRC at
2516.

A.    
 Prima Facie Case

For the reasons set forth below, I
find that the Secretary has successfully made out a prima facie case by
showing that Lopez engaged in protected activity and was terminated, at least
in part, because of his protected activity.                    

Sherwin concedes that the following
events constitute protected activity: 1) Lopez made three hazard complaints to
MSHA between 2008 and 2010; 2) Lopez reported a leaking valve to MSHA in the
Fall of 2010; 3) Lopez publically expressed his opinion in the “MSHA Threat”
meeting that MSHA’s presence at the Plant would be a “good idea;” 4) Lopez
reported that Mayfield had breached his tags on September 12, 2011; and 5)
Lopez filed a Discrimination Complaint with MSHA on September 28, 2011. Stip.
10; Resp’t Br. at 14-15; Ex. C-7 at 2.

The Secretary relies upon circumstantial
evidence to prove that Sherwin discriminatorily terminated Lopez because of his
protected activity. As will be discussed fully, I find that the Secretary has
established a temporal nexus between Lopez’s protected activity and his
termination, that Sherwin’s management knew of Lopez’s protected activity and
demonstrated animus, and that Lopez was subjected to disparate treatment.

The Commission has found that a
discharge occurring approximately two weeks after protected activity is
sufficiently coincidental in time to support a finding of discriminatory
motive.                     Secretary of Labor on behalf of Baier v. Durango
Gravel, 21 FMSHRC 953, 959 (Sept. 1999).  This case presents an even
stronger temporal connection, since Sherwin’s managers initiated the first step
of Lopez’s termination on September 20, i.e., recommending that he be suspended
pending further investigation, a mere eight days after Lopez had reported the
breach of his tags. Tr. 358-59.  The recommendation to suspend Lopez also came
in the month following the “MSHA Threat” presentation, where his suggestion for
increased MSHA oversight fed his plant-wide reputation as a whistleblower. Tr.
59-62, 191-92, 307-08, 333, 394-96, 470. Considering that Sherwin was in a damage-control
mode to avoid PPOV status, the impetus to silence an established complainer is
evident.

Sherwin has acknowledged that it
was aware of Lopez’s protected activity. Stip. 11. The Commission has
recognized that an operator’s knowledge of protected activity “is probably the
single most important aspect of a circumstantial case.” Chacon, 3 FMSHRC
at 2510.                    

CEO Tom Russell’s and David Buick’s
reactions to Lopez’s complaints establish Sherwin’s hostility toward Lopez’s
protected activity at the senior management level. In Morgan v. Arch of
Illinois, the Commission reversed the judge for failing to consider
circumstantial evidence indicating the unlikelihood that a lower-level decision
maker was oblivious to the animus of an upper-level manager toward a miner who
had engaged in protected activity.  21 FMSHRC 1381, 1390-92 (Dec. 1999). Specifically,
the upper-level manager’s dislike of the miner was so well-known, that it
became the subject of jokes by several miners. Id. at 1390. I fully
credit Howard’s testimony that Russell viewed Lopez so negatively, that he
believed Lopez to have intentionally created safety hazards to bring MSHA to
the Plant. Tr. 148. Since Russell had expressed his disdain for Lopez to hourly
workers such as Gomez, it is highly probable that he made disparaging remarks
about Lopez to supervisors such as Douglas and Buick. Tr. 59-60. Buick’s
disdain for Lopez’s tendency to contact MSHA rather than address his safety
concerns through Sherwin’s internal procedures, as well as his public advocacy
for MSHA presence at the Plant, also indicate hostility. Tr. 63-65; Ex. R-30 at
44, 60-61, 90. Moreover, the Commission has recently reasoned that
presumptively negative characterizations of employees such as “difficult,” are
indicative of hostility toward protected activity. Turner v. National Cement,
33 FMSHRC 1059, 1069 (May 2011). Buick’s characterization of Lopez as a “crusty
old bloke,” given Lopez’s reputation as a complainer, takes on a negative
connotation. Ex. R-30 at 91.

While Russell and Buick did not
initiate the decision to terminate Lopez, it is highly likely that their
negative opinions of Lopez influenced Douglas, their subordinate. Douglas
stated that he made the initial decision to terminate Lopez and, since he
controlled the information imparted to the other managers about the
investigation, it is highly likely that he influenced their recommendation. While
Vazquez reviewed and concurred with Lopez’s recommended discipline, his paper
review was merely cursory. Thus, I find that Douglas was the management
official responsible for Lopez’s termination. Tr. 448-449, 513, 572; Ex. R-30
at 76. Additionally, despite Lopez’s recognition that Douglas is a “gentleman”
who has treated him fairly and respectfully, Lopez’s thinly veiled threat to
contact MSHA about problems at the Plant provides ample motivation for animus
on the part of Douglas, as exemplified by Douglas’ urging that Lopez give
Sherwin an opportunity to fix the problems about which he complained. Tr. 249,
394-95.                                                                                          

Sherwin’s discriminatory motivation
is also evidenced by its disparate treatment of Lopez in assessing discipline
for the three employees involved in the condensate release incident.                    
Mayfield, who was serving a one-year probationary period for performance
issues, including concerns that he worked unsafely, was fired, and clearly got
his due.Tr. 434-35. Carter, however, is an entirely different matter. Carter, a
safety supervisor tasked with training employees in safe work procedures,
demonstrated highly egregious conduct. He directed a subordinate supervisor to
repeat his breach of Lopez’s tags on the 5-8 heater, thereby placing Lopez in harm’s
way a second time. Alarmingly, Carter did not recognize that his conduct
violated Sherwin’s LO/TO policy until he was verbally reprimanded by his
supervisors. Tr. 345-48. Carter’s lack of awareness of the company’s LO/TO
policy - - a safety policy that he should have been overseeing - - was
apparently of little concern to Sherwin, as demonstrated by its amplification
of Carter’s clean disciplinary record, as well as his contriteness and
admission that his breach was the result of a “brain-fade.” Indeed, Sherwin
gave Carter a slap on the wrist by placing him on a one day suspension and four
days administrative leave. Tr. 542; Exs. R-30 at 24-26, R-31. If anything, some
of Sherwin’s managers believed that the sentence was too heavy-handed,
questioning whether Carter should receive any discipline at all, since, after
all, he was just investigating the initial breach. Tr. 438-440. On the other
hand, Lopez, the non-supervisory employee, was held responsible for his
supervisors’ lack of safety protocol, and fired.                    

While Buick testified that
Sherwin’s expectations of salaried employees, and particularly SSTs, are
greater than for hourly workers, Sherwin’s respective treatment of Carter and
Lopez would seem a reversal of expectations. Ex. R-30 at 84. The operator
virtually excused Carter’s offense while, on the other hand, blowing out of
proportion Lopez’s minor, if any, involvement.                     The only
reasonable rationale for such lopsided treatment is Lopez’s reputation as a
whistleblower, and Carter’s as a team player.

Therefore, I find that the
Secretary has established that Sherwin’s termination of Lopez was motivated by
his protected activity. I also find that Sherwin has not proven that it was in
no way motivated by Lopez’s protected activity in its decision to terminate him
and, therefore, that it has failed to rebut the Secretary’s prima facie
case.

B.     
Affirmative Defense

The
Hourly Personnel Action specifies two reasons for suspending Lopez pending
further discipline: failure to warn co-workers of the red tag status of the 5-8
heater and obstructing the investigation. Ex. R-16.  At hearing, however,
Sherwin changed horses in midstream, by abandoning the first charge and
shifting its defense exclusively to the second charge, that Lopez was not
forthcoming with information and obstructed the investigation. Resp’t Br. at
21-23; Tr. 531-32.

After
the September 20 management meeting, Buick’s email, approved by Douglas, stated
that Lopez’s failure to “take action to prevent his supervisor breaching TOLO
[LO/TO] procedures,” was his “first offense,” and the fact that he “stood by
and did not take action to stop area SST breaching tagging procedures,” was his
“second offense.”  Ex. R-31; Tr. 540-42.                     Indeed, Buick
testified at his deposition that the managers partially based their
recommendation on the fact that Lopez knowingly and willfully allowed others to
breach his tags.                     Ex. R-30 at 28.  At hearing, however,
Douglas testified that Lopez would not have been terminated and, in fact, no
offense would have been committed, if he had just admitted that he had allowed
his supervisors to breach his tag.  Tr. 531-32. Moreover, in its post-hearing
argument, Sherwin abandons the failure to warn defense and relies solely on the
obstruction charge to justify Lopez’s termination:

What
ultimately drove Douglas to recommend Lopez’s termination was his belief that
Lopez was untruthful during the investigation, not because he believed that
Lopez had knowingly allowed Mayfield to breach his tags. In fact, Douglas
agreed that he would not have recommended termination had Lopez admitted that
Mayfield’s version of events was accurate. 

Resp’t Br. at
21-22. Sherwin’s abandonment of the failure to warn charge is easily explained,
given that the charge unreasonably saddles Lopez with the burden of bearing
responsibility for his supervisors’ unsafe and reckless conduct. Such logic
turns the hierarchical structure upside down, such that the student takes on
the role of the teacher. I find that the failure to warn charge is simply
unworthy of credence and, based on Sherwin’s shift from that claim, it appears
that the operator has drawn the same conclusion.  Consequently, my analysis now
focuses on the second charge, that Lopez obstructed the investigation.                    

Sherwin
claims that it was very troubled by Lopez’s lack of cooperation in the ensuing
investigation. Resp’t Br. at 21. It bases its conclusion primarily on the
discrepancies between Mayfield’s and Carter’s accounts on the one hand, and
Lopez’s account on the other, as well as Lopez’s “can’t answer that” response
to Douglas when presented with a handwritten statement for his verification;
Sherwin fully credits the supervisors’ accounts that Lopez knew what Mayfield
was planning to do. Resp’t Br. at 21-23; Tr. 443; Exs. R-3, R-4, R-5.                   
 According to Sherwin, it was forced to make a credibility determination as to
whether Lopez was lying. Resp’t Br. at 22. In support of its argument, it cites
Sec’y of Labor on behalf of Owens v. Drummond Co., Inc., a case in which
the judge found that the operator affirmatively defended its firing of miners
who had engaged in protected activity, because it reasonably believed that they
were stealing company property and/or selling drugs. 25 FMSHRC 594, 608-10
(Oct. 2003) (ALJ Weisberger). Similarly, Sherwin reasons, since Douglas’ belief
that Lopez was untruthful was reasonable, it was justified in terminating him. The
reasonableness of Douglas’ belief is highly suspect, however, given that the
evidence of the alleged pre-breach verbal exchange between Mayfield and Lopez
essentially boils down to Mayfield’s word against Lopez’s. It would seem that
it never occurred to Douglas that Mayfield and Carter had reason to modify
their accounts of the incident in order to mitigate the egregiousness of their
respective breaches; this is especially true of Mayfield, who was already on
probation.                                         

In Turner,
the Commission set forth three ways in which a complainant may challenge the
credibility of an operator’s affirmative defense. A complainant may establish
that the operator’s proffered reasons have no basis in fact, i.e., they are
factually false. 33 FMSHRC at 1073. A complainant may show that the proffered
reasons did not actually motivate the discharge, i.e., a complainant admits the
factual basis underlying the employer’s proffered reasons and that such conduct
could motivate dismissal, but attacks the credibility of the proffered reasons
indirectly by showing circumstances which tend to prove that an illegal
motivation was more likely than the legitimate business reasons proffered by
the employer.  Id. Finally, a complainant may show that the employer’s
proffered reasons were insufficient to motivate termination, i.e., other
employees were not terminated even though they engaged in conduct substantially
similar to the conduct which formed the basis of the complainant’s termination.
Id. The evidence clearly demonstrates that the defense Sherwin elected
to advance, that Lopez was untruthful and uncooperative, did not actually
motivate his discharge and, under the second Turner approach, is
unworthy of credence.

Any
adverse conclusion that Sherwin drew respecting Lopez’s behavior is based on a
sham investigation that amounted to a witch hunt designed to fire Lopez. Starting
with the RCA Meeting on September 14, Sherwin demonstrated to Lopez that it was
skewing the facts against him, despite management’s claim of wanting to give
him opportunities to tell his side of the story. Tr. 78, 411, 563. In fact,
Sherwin had already decided to fire Lopez before meeting with him again on
September 19. Sherwin had locked Lopez out of the Plant prior to that meeting.                    
Moreover, I credit Howard’s testimony that he observed Douglas and Contreras in
possession of the Hourly Personnel Action in that meeting, which leads to a
reasonable conclusion that the document officially terminating Lopez had been
written up prior to the conclusion of the investigation.  Tr. 153, 156, 158-59,
424; Ex. R-16. That document, itself, is telling. Douglas mischaracterized
Lopez’s suspension as “pending further discipline” rather than “pending
further investigation” and, again, he made the same mistake at hearing,
then corrected his terminology.  Ex. R-16, Tr. 447-48. Barring Lopez’s access
to the Plant on the morning of September 19, in conjunction with credible
evidence that the written disciplinary action existed, at least, as of that
date, is compelling evidence that Sherwin had already settled on its course of
action and Lopez’s fate had been pre-determined. In light of Sherwin’s obvious
attempt to transfer the lion’s share of the blame from the offenders, Mayfield
and Carter, to Lopez, the victim of the condensate release, Lopez’s reticence
during the so-called investigation is not only explainable, but reasonable; any
cooperation on his part would have amounted to ammunition for his undoing.

Beginning
with the September 20 management meeting, Sherwin was unconcerned with
objectively assessing discipline, and was solely focused on crafting rationales
for salvaging Carter, while terminating Lopez. Despite Carter’s role as a
safety supervisor and his obvious LO/TO breach, the managers were slow to
recognize that he had done anything wrong at all, and made much ado about his
clean record and service to Douglas’ as his “right-hand safety man.” Tr. 438,
Ex. R-30 at 24. Moreover, Sherwin’s management as a whole was largely
dismissive of Carter’s lack of awareness of safety protocol and endangerment of
Lopez. Regarding Lopez, however, the company glossed over his good work record
and, appreciating the flimsiness of requiring him to supervise his supervisors,
put all its weight behind characterizing him as a liar in its sham
investigation. Given that Lopez was essentially being railroaded, I find that
his behavior was prudent rather than uncooperative.                                                                     

Douglas
elected to bypass Sherwin’s progressive discipline policy to fast-track Lopez’s
firing, ostensibly based on the severity of Lopez’s misconduct. However, not
only was Lopez’s responsibility for the condensate release, an event that could
have seriously injured him, negligible, but it would have been very difficult
to fire him utilizing progressive discipline, given his admittedly clean
disciplinary record. Tr. 521-23.                                                                     

Despite
Sherwin’s attempt to abandon its “failure to warn” charge during the course of
this proceeding, it was, nevertheless, officially documented as one of the two
reasons for Lopez’s termination. I find, similarly, that it fails, but under
the third Turner approach. Carter not only failed to warn Mayfield
against breaching Lopez’s tags but, in fact, directed him to do so; for this
infraction, Carter was afforded the utmost leniency.                                                                     

If
Douglas really believed either or both of the charges, that Lopez had a duty to
warn his supervisors and that he was being untruthful and uncooperative, it was
unreasonable to forego progressive discipline and terminate him based upon
those beliefs.  Lopez’s infractions, under any reasonable standard, could not
have been more egregious than the actual breaches, themselves.                    

Therefore,
based on my finding that the reasons Sherwin gives for terminating Lopez, that
he failed to warn his supervisors against breaching his tags and that he lied
during the ensuing investigation, are unworthy of credence, Sherwin has failed
to establish an affirmative defense for firing Lopez. The sheer weight of the
circumstantial evidence makes it far more likely than not that Sherwin’s
reasons for terminating Lopez were pretextual.

In
conclusion, I find that the Secretary has established a prima facie case
of discrimination under section 105(c) of the Act. I also find that Sherwin has
failed to either rebut the Secretary’s prima facie case or affirmatively
defend its termination of Lopez. Therefore, based on a thorough review of the
record, I conclude that the Secretary has proven, by a preponderance of the evidence,
that Sherwin discriminatorily terminated Lopez, and that Lopez is entitled to
relief.

IV.      Penalty

While
the Secretary has proposed a civil penalty of $30,000.00 for this violation,
the judge must independently assess the appropriate penalty based on the
statutory penalty criteria.                     Sellersburg Co., 5
FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).  Sherwin
is a large operator and, absent any contention by the operator to the contrary,
I find that the proposed penalty will not affect its ability to continue in
business. Sherwin’s relevant history of violations contains no charges under
section 105(c) of the Act and, therefore is not an aggravating factor in
assessing an appropriate penalty. The willful decision to terminate Lopez, a
well-known safety advocate who had a history of reporting safety concerns to
management and contacting MSHA, was blatant and influenced by the highest
levels of Sherwin’s management. Therefore, the violation was very serious,
since it not only deprived an otherwise good worker of employment, but also
served as a chilling effect on other miners who would consider raising safety
concerns within the company or with MSHA. Therefore, based on the seriousness
and willfulness of Sherwin’s unlawful treatment of Lopez, I find that a penalty
of $45,000.00 is appropriate.                    

ORDER

Based on my
conclusion that Sherwin Alumina, LLC, and its Successors discriminated against
Carlos Lopez when he was suspended on September 21, 2011, and terminated on
October 19, 2011, the Discrimination Complaint is GRANTED. Sherwin Alumina,
LLC, and its Successors are ORDERED TO REINSTATE Carlos Lopez to
the same position he held prior to his discharge or to a similar position at
the same rate of pay and with the same or equivalent duties assigned to him. Additionally,
within ten days of the date of this Decision, counsels for the Secretary and
Sherwin Alumina, LLC, and its Successors are ORDERED TO CONFER to
determine the appropriate back pay and interest to be awarded to Carlos Lopez
for any days lost due to his suspension and termination, The parties shall also
confer and agree regarding any other appropriate relief required to make Carlos
Lopez whole for the period that he was illegally suspended and terminated. Within
15 days of the date of this Decision, counsels shall report to me jointly in
writing the results of their discussions, which shall result in a Final
Decision and Order awarding the agreed-upon relief. If counsels are unable to
agree, they shall advise me jointly in writing within 15 days of the date of
this Decision, which shall result in issuance of an Order regarding submission
of additional evidence on the issue of relief.

Further, and
effective immediately, Sherwin Alumina, LLC, and its Successors are ORDERED
TO CEASE AND DESIST from interfering with the section 105(c) rights of
Carlos Lopez while he remains in their employ, expunge from Carlos Lopez’s
employment records all references to the circumstances giving rise to his
unlawful discharge, and provide a neutral employment reference for Carlos
Lopez, if requested.

Further, within
30 days of the date of this Decision, Sherwin Alumina, LLC, and its Successors
are ORDERED TO PAY a civil penalty of $45,000.00 for the
violation of section 105(c) of the Act.[8]                    

Carlos Lopez’s TEMPORARY
REINSTATEMENT SHALL REMAIN IN EFFECT until a FINAL DECISION ON RELIEF
is issued.

/s/
Jacqueline R. Bulluck                                                                           

Jacqueline
R. Bulluck

Administrative
Law Judge    

Distribution: (Certified Mail)

Elizabeth M. Kruse, Esq., U.S. Department
of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 501, Dallas, TX
75201

Josh Bernstein, Esq., U.S. Department of
Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 501, Dallas, TX
75201

Christopher V. Bacon, Esq., Vinson &
Elkins, LLP, First City Tower, Suite 2500, 1001 Fannin Street, Houston, TX
77002

Carlos Lopez, 6821 South Heaven, Corpus
Christi, TX 78412

/ss

_ 30 U.S.C. § 815(c)(2) states, in
relevant part:

Any miner or
applicant for employment or representative of miners who believes that he has
been discharged, interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60 days after such violation
occurs, file a complaint with the Secretary alleging such discrimination.                    
Upon receipt of such complaint, the Secretary shall forward a copy of the complaint
to the respondent and shall cause such investigation to be made as he deems
appropriate.

[2]
Lopez filed his Complaint on September 28, and MSHA notified Sherwin on
September 29.                     Ex. C-7 at 1-2.

[3]
TIDES is the acronym for Total Involvement Drives Employee Safety.                    
Tr. 51.

[4]
Blinding a valve refers to opening up the space between the valve and the pipe
flange, and inserting a plate between them to prevent leakage.                    
Tr. 223-24, 228-29.

[5]
Condensate is hot water.                     Tr. 229.

[6]
SSTs conduct internal safety investigations, communicate with employees, and
assist MSHA with site investigations.                     Tr. 336.

[7]                    
30 U.S.C. § 815(c)(1) states, in relevant part:

No person shall discharge or in
any manner discriminate . . . against . . . any miner . . . because such miner
. . . has filed or made a complaint under or related to this chapter, including
a complaint notifying the operator or the operator’s agent . . . of an alleged
danger or safety or health violation in a coal or other mine . . . or because
such miner . . . has instituted or caused to be instituted any proceeding under
or related to this chapter . . . or because of the exercise by such miner . . .
on behalf of himself or others of any statutory right afforded by this chapter.

[8] Payment
should be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.                     Please
include Docket number and case number.