Manuel A. Garza v. Hanson Aggregates, LLC

Plain-English summary

Manuel Garza worked at Hanson Aggregates' Servtex Plant for 21 years and repeatedly raised concerns about wall scaling, fall protection, and other safety practices. The plant manager had criticized Garza for safety work that slowed production, demoted him, treated him harshly, and disciplined him for damage that other managers said he did not cause. After an MSHA inspector found Garza on a crusher without fall protection and without locking out the diesel motor, Hanson terminated him for the two safety breaches. Judge James G. Gilbert found that the violations were real unprotected conduct but that the plant's lax and inconsistent safety enforcement, lighter discipline for comparable conduct, management animus, and the lack of a meaningful investigation showed the stated reason was pretextual. He granted the discrimination complaint and ordered reinstatement, back pay, benefits, fees, expungement, and posting, while retaining jurisdiction to set the monetary amounts in a final order.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 815(c)(3)
• Outcome: Garza's discrimination complaint was granted, immediate reinstatement and corrective relief were ordered, and monetary amounts were reserved.
• Key point: Proven safety violations do not establish a same-action defense when inconsistent enforcement and discriminatory animus show that termination was not the operator's normal response.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

April 16, 2014

MANUEL A. GARZA,

����������������������� �� Complainant,

����������������������� v.

HANSON AGGREGATES,
LLC,

����������������������� �� Respondent.

DISCRIMINATION PROCEEDING

Docket No. CENT 2013-307-DM

SC MD 13-08

Mine ID: 41-00059

Mine: Servtex Plant

DECISION ON
LIABILITY

Appearances:�� Mark
A. Sanchez, Esq., San Antonio, Texas, on behalf of Complainant Manuel A. Garza

William K. Doran, Esq.,
Washington, D.C., on behalf of Respondent Hanson Aggregates, LLC.

Before: Judge James G. Gilbert

This case is before me upon a complaint of discrimination brought by Manuel A. Garza (�Garza�), a miner, against
Hanson Aggregates, LLC, (�Hanson� or �the mine�), pursuant to�� section
105(c)(3) of the Federal Mine Safety and Health Act of 1977 �(Mine Act�), 30
U.S.C. � 815(c). Complainant alleges that he was unlawfully discharged by
Respondent Hanson on August 31, 2012. Garza alleges that his termination was
motivated by discriminatory animus toward his protected activities, which
consisted of reporting various safety issues regarding Hanson�s Servtex Plant.[1]
Hanson denies the allegation of unlawful discrimination and asserts that Garza
was fired for violations of safety practices that occurred several days before
the date of his termination.

A two day hearing was held
commencing on December 10, 2013, in San Antonio, Texas.

I.                  
Stipulations of Fact

1.      Respondent
Hanson Aggregates, LLC, operates the Servtex plant located in New Braunfels,
Texas.

2.      Operations
at the Servtex plant are subject to the jurisdiction of the Mine Act.

3.      The
Administrative Law Judge has jurisdiction in this matter pursuant to section
105 of the Act.

II.               
Procedural Background

On November 19, 2012, Garza filed a
discrimination complaint with the Mine Safety and Health Administration
(�MSHA�) pursuant to section 105(c)(2) of the Act. The Complaint was
investigated by MSHA, and by letter dated February 4, 2013, MSHA determined
that no discrimination had occurred. On February 27, 2013, Garza filed a
discrimination complaint on his own behalf with the Federal Mine Safety and
Health Review Commission pursuant to section 105(c)(3) of the Mine Act.[2]
On April 5, 2013, and again on April 10, 2013, and again on

May 16, 2013, Respondent was ordered to file an Answer
within thirty days. On May 22, 2013, Hanson filed an Answer denying the
allegations of discrimination.[3]
On June 17, 2013, this matter was assigned to me. A Notice of Hearing and
Site was issued on August 1, 2013, for a hearing scheduled for October
23-24, 2013, in San Antonio, Texas. As the result of a lapse in appropriations during
the period leading to the scheduled hearing, the hearing was rescheduled in a
conference call on October 17, 2013. Following the conference call, a Notice
of Rescheduled Hearing and Site set the date for hearing as December 10-11,
2013, in San Antonio, Texas. Pre-hearing reports were filed by both parties in
a timely manner. Although both parties were invited to submit post-hearing
briefs, only Respondent chose to do so. �

III.            
Factual Background and Findings

A.    Garza�s
Employment History

Garza was employed by Hanson at
its Servtex plant in New Braunfels, Texas (�Servtex�) beginning in March 1991. Tr.

383. During his 21 year career with Hanson, Garza served as a utility man,
     eventually being promoted to quarry supervisor of production in 2007. Tr.
     383-84. Garza served as a supervisor for four years before he was demoted by Plant
     Manager Kenneth Early (�Early�) on June 1, 2011. Tr. 355, 393, 443, 551; Resp.
     Exh. 12. Garza accepted the demotion in lieu of termination and continued to be
     employed with Hanson until the date of his termination. Tr. 393; Resp. Exh. 10.

B.     Garza�s
2011 Demotion

Garza served as a supervisor
from approximately 2007 until his demotion on June 1, 2011. Tr. 443. �During
this time he reported to Early directly. Tr. 383. Notwithstanding the demotion,
there was no documentation introduced to refute that throughout the time Garza
served as supervisor he performed his duties at an acceptable level.[4]
Tr. 488. In fact, Keith Bechly (�Bechly�) Hanson�s Director of Human Resources
for the South Region, testified that Garza had done a good job. Tr. 550. However,
his employment relationship with Early was strained. There were multiple
examples of difficulties Garza encountered with Early as his supervisor. One of
the more significant of these involved Garza�s attempt to rectify a recent
blasting of rock.

Sometime in the first half of 2011,
Garza was scraping the wall, which is a process by which fallen rock is removed
so as to prevent the possibility of a rock slide into the base of the plant.[5]
Tr. 485-86. On this particular day, Early was hosting a meeting of other
general managers at the facility. Tr. 385, 485. When Early encountered Garza
scraping the wall, Early was incensed because this safety procedure interfered
with production. Tr. 385. Although scraping the wall is a necessary safety
procedure, Early delivered clearly his message to Garza that any such safety
measures were second to the need to maintain production. Id.

Within a month or two of this
incident, Early sought to demote Garza from his position as supervisor. Tr. 487.
�Early consulted with Bechly. Tr. 492-93, 496. Bechly, for his part, could not
specify or recall any basis for the demotion, other than Early�s statements
about Garza�s lack of performance. Tr. 512, 515. There was no documentation offered
to support Early�s position that Garza was not performing his duties. Tr. 515. There
were no records introduced into evidence of any performance appraisals for
Garza during this four year period as supervisor. Also, although Garza had been
in the supervisor�s position for four years, Bechly did not require
documentation when Early approached him with the request to demote Garza. Tr.

524. Likewise, Bechly did not make any inquiry of Early as to whether Garza had
     engaged in protected activity prior to this time. Tr. 513. While Bechly
     testified that such demotions were rare, Bechly concurred with the demotion notwithstanding
     the lack of any documentation to support the personnel action.[6]
     �

Early told Garza that he could
return as a leadman in the base of the plant, or face termination. Tr. 487. Garza
accepted the demotion in lieu of being fired, but credibly testified that he
still did not understand why he was forced to accept the demotion after four
years as a supervisor. Tr. 485.

C.    Garza�s
Relationship with Early

Garza credibly testified to a
long history of verbal abuse from Early. Tr. 391-393. Although Early�s
reputation for verbal abuse was well known, and many in the plant were victims
of his anger, Andy Gallegos (�Gallegos�), Garza�s supervisor, credibly
testified that Garza was singled out by Early for particularly harsh treatment.
Tr. 206-07. Incidents included the use of profanity, derogatory comments
related to Garza�s perceived political affiliations, and other inappropriate
offensive language. Tr. 207. Garza described an example of Early�s ongoing
abuse.

Q. �How was Mr. Early�s demeanor,
behavior towards you in these [safety] meetings?

A. �Oh, you know, he would kind of
pick on me more, but he would also, you know, he would pinpoint me as Obama
Garza, you know. I didn�t like it. I didn�t tell him nothing because I had
respect for the man. It doesn't matter how much anybody says about you, you
know, as long as you have that respect, you know, everything is going to be
okay. But he would call me Obama Garza in front of all the supervisors in the
meeting.

Q. �Where did that term come from,
if you know?

A. �At one time they were talking
about the economy being so bad, you know, production was pretty slow at the
time. I said yeah, well, you know � some gentleman, Clayton Simpson said, yeah,
we�re going to be all right, Obama is going to help us out. He said, you mean
Obama Garza, and everybody just, like, got quiet, didn�t say nothing. And I
just looked at him and what can I tell him, you know? I couldn't say nothing.

Q. �Had you ever brought politics
into the workplace yourself?

A. �No, I don�t really talk
politics to nobody. That�s kind of a closed-doors issues between me and myself.

Q. �Well, do you have any idea
where he got the term Obama Garza? Why he picked on you like that?

A. �No, I don�t.

Q. �Is this something that occurred
frequently at the meetings?

A. �Yes.

Q. �Would it happen at every
meeting?

A. �Yes, almost all -- at every
meetings they had to bring some kind of �politics into it.

Q. �And would he single you out at
these meetings?

A. �Yeah, he would call me Obama
Garza.

Q. �Did he call you any other
names?

A. �Not there. On the phone, yes.

Q. �What sort of names would he
call you?

A. �He would just -- he would just
say a lot of bad words to me when something wasn�t going his way.

Q. �Would he drop F bombs?

A. �Yes. He had plenty of those for
me.

Tr. 391-92.[7]

Although much of the abuse Garza
took from Early occurred during his tenure as a supervisor, the abuse continued
after his demotion from the position.

D.    Early�s Written
Warning to Garza in July 2012

On July 19, 2012, less than six
weeks before his termination, Garza was given a written warning pertaining to a
blown tire on the loader by his supervisor Gallegos. Tr. 221; Comp. Exh 1. Garza
knew that the nightshift operator had been spinning the tires and otherwise had
abused the equipment. Tr. 427-28. Gallegos credibly testified that he saw the
damage to the tire first thing in the morning and agreed with Garza that the
damage had been done the night before. Tr. 222, 224. Nevertheless, Early
insisted that Garza be disciplined for the damage. Tr. 222. Gallegos protested
to Early and explained to him that the night shift operator had damaged the
tire. Tr. 222. Early told Gallegos to issue the written discipline to Garza
anyway. Tr. 223. Garza objected to the written warning and placed his objection
in writing on the corrective discipline form. Tr. 223; Comp. Exh. 1. For his
part, Production Manager Jacob Scherer (�Scherer�) also disagreed with Early�s
decision to take disciplinary action against Garza for the damage to the loader
tire. Tr. 29. None of this prevented Early from ordering Gallegos to issue the
written reprimand to Garza even in the face of evidence that Garza was not
responsible for the damage. �

E.     Garza�s
Protected Activity

Garza
engaged in multiple activities that would generally fall within the term
�protected activity.� Prior to his demotion in 2011, Garza was derided by Early
for taking proper safety measures such as �scraping the wall.� Tr. 484. Garza
made repeated requests for access to fall protection prior to his request to
Scherer in July 2012. Tr. 446. Garza complained about the lack of scraping the
wall to both Russell and Early. Tr. 212-13. Garza also commented to the MSHA
inspector on August 29, 2012, that he did not have company issued fall
protection. Tr. 464. Each of the above constitutes protected activity.

F.     Urbano
Garcia�s Violation of Safety Protocol

In or about May 2012, Urbano Garcia
(�Garcia�), a worker in the electrical department, was filling the oil in the
gearbox on top of the crusher and failed to wear protective fall gear.[8]
Tr. 603-05. This behavior was observed by witness Derek Henk (�Henk�). Tr. 604.
Henk scolded Garcia for his transgressions of safety policy and reported the
matter to supervisor Antonio Mosquedo (�Mosquedo�). Mosquedo gave Garcia a
verbal warning for this offense. Tr. 300-01. No other disciplinary action was
taken against Garcia. Tr. 301. In fact, Mosquedo testified that if Garcia was
caught again, he would receive a three-day suspension. Id. Mosquedo said
at no time was termination of Garcia ever considered for this transgression of
safety policy. Id. Both Gallegos and Garza testified that Garcia�s
actions on this date were consistent with how Mosquedo�s crew normally filled the
oil in the gearbox. Tr. 195, 403.[9]
�

G.    Garza�s
Termination

On August 29, 2012, MSHA
Inspector Lance Miller conducted an inspection of the Servtex Plant,
accompanied by Scherer (the �inspection party�). Tr. 66, 68. During the course
of that inspection at approximately 6:00 a.m., the inspection party arrived at
the crusher at the base of the plant where Garza was assigned that day. Tr. 114.
At the time they arrived, Garza was at the top of the crusher, placing oil in
the gearbox, and was not wearing protective fall gear. Tr. 116-17, 223. In
addition, an inspection of the equipment noted that the diesel engine that
operates the electric motors on the crusher was in operation, though the clutch
had been disengaged. Tr. 49, 124. Miller asked Garza what he was doing on the
top of the crusher and Garza informed him that he was refilling oil. Tr. 123. Miller
asked why he was not wearing any safety harness and Garza replied that he did
not have a harness. Tr. 464.

As the result of his
observations, Miller issued two citations. The first citation cited the mine
under 30 C.F.R. � 56.15005 for Garza�s failure to use protective gear and for the
lack of guardrail protection on the top of the crusher. Resp. Exh. 6. The
second cited the mine under 30 C.F.R. � 56.12016 for Garza�s failure to lockout
the diesel motor while performing maintenance. Resp. Exh. 7.

After the inspection, Scherer
met with Early and discussed the citations and Garza�s violations of safety
protocol. Tr. 480. Early and Scherer then had an additional discussion with
Bechly, and Bechly recommended that both Garza and his supervisor Gallegos be
suspended pending an investigation into the safety violations. Tr. 85-86. Garza
was informed that evening that he was suspended pending investigation. Tr. 82. In
the course of that discussion, Garza repeatedly explained that he objected to
having to refill the broken gearbox with oil on a regular basis, and that the
gearbox was never repaired by Mosquedo�s maintenance team. Tr. 85, 397, 399. Scherer
testified that Garza also stated that Gallegos told him to fill the oil before
the MSHA inspector arrived. Tr. 85. The �investigation� did not include any
further discussion with Garza. Tr. 85. Garza was informed that evening that he
was under suspension. Tr. 82.

The next day, Early and Scherer
spoke with Gallegos and inquired of his knowledge of whether Garza had been
instructed to hurry the process of filing the gearbox with oil before the MSHA
inspector arrived. Tr. 86. Gallegos denied that Garza had been so instructed
and stated only that he told Garza to finish it before the trucks arrived. Tr. 86.
Gallegos also admitted that his understanding of the lockout/tagout procedure
would permit Garza to do exactly what he had done on the day of the inspection.
Tr. 88-89.

�

After the conversation with
Gallegos, there was a conference call between Early, Bechly, Scherer, Richard
Crowe, the area production manager, and Russell Ellis, Hanson�s south Texas
safety manager. Tr. 89. The purpose of the call was to discuss the results of
the �investigation� and to make a decision about the future of Garza and
Gallegos. Tr. 90. While the parties on the call agreed that termination of
Garza was proper, ultimately, it was Early�s call to terminate both Garza and
Gallegos, overruling Scherer�s objection as to the termination of Gallegos. Tr.
55, 90.

On August 31, 2012, Garza was
told to report to the plant where he met with Scherer and Early. Tr. 94, 439. Early
informed Garza that he was terminated. Tr. 439. Garza did not question Early
but left the plant premises. Id. �

IV.            
Discussion

I begin by reviewing the
Commission�s framework for analyzing a section 105(c) �mixed motive� discrimination
complaint.[10]
This is no easy task. What at first glance appears to be an application of
traditional McDonnell Douglas burden shifting is in fact and in
application a much more complicated analysis that shifts burdens of persuasion from
the employee to the employer, and, in the end, to both parties. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). �Under traditional McDonnell
Douglas analysis, once a plaintiff establishes a prima facie case under
Title VII, the burden of proof shifts to the employer to rebut the prima facie
case. Id. at 802-03. The employer�s burden is a burden of production not
persuasion. Id. At all times, the burden of persuasion remains with the
employee. Id. However, under Commission precedent, upon establishment of
a prima facie case by the miner, the burden shifts to the operator to rebut the
prima facie case by a preponderance of the evidence. Sec�y of Labor
on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800
(Oct. 1980). Unlike McDonnell Douglas, the employer now has the burden
of persuasion not production.[11]

Presumably, if the operator
meets its burden and can provide sufficient evidence that it would have taken
the adverse action based on a nondiscriminatory basis, there is nothing left to
rebut. It is indisputable that a fact established by a preponderance of the
evidence cannot be overturned by evidence that the fact was a pretext;
otherwise it could not have been established in the first place. Under McDonnell
Douglas, unlike under the Mine Act, a Judge does not find that an employer
established his rebuttal by a preponderance of the evidence, but rather that it
met its burden of production, leaving open the question of whether the
proffered reason was pretextual, and keeping the burden of persuasion at all
times with the employee. In my opinion, it is the adjustment of the traditional
framework by the Commission that leads many Judges to fail to address pretext
because the Commission�s altered Title VII framework does not easily invite
such an analysis. In order to properly address the issue of pretext, the
Commission precedent must be read to require that the Judge review pretext
(burden of persuasion on employee) at the same time the Judge reviews the
company�s affirmative defense (burden of persuasion on employer). See, e.g.,
Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1374 (Dec. 2000) (concurring
opinion of Commissioner Beatty) (�complainant has a
burden to produce evidence designed to refute the operator�s affirmative
defense by showing that the affirmative defense offered by the operator is
merely pretext and not the true reason for the adverse action.�) The most
efficient way one can accomplish such a task is to clarify the section 105(c) analysis.

On rebuttal, an employer must
establish either that: (1) the miner was not engaged
in protected activity; or, (2) that the adverse action was not motivated in any
part by the protected activity. Sec�y of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 825 n.20 (Apr. 1981). Such a
successful determination on either prong precludes further review, including
review on pretext.[12]
Id. If however, the operator cannot rebut the prima facie case, then the
operator may assert an affirmative defense, which it must prove by a preponderance
of the evidence.[13]
The operator must establish both that: (1) the discharge was also motivated by
the miner�s unprotected activity, and (2) it would have taken the adverse
action in any event for the unprotected activities alone. Nat�l Cement Co. of
California, 33 FMSHRC at 1064. In the assertion of this affirmative
defense, it is best to break down the framework a little further.

To
establish its affirmative defense, the company must first carry its burden of
persuasion on the issue of whether the discharge was also motivated by the
miner�s unprotected activity. If the company is unable to prove this element,
it has failed to establish its affirmative defense and the employee is entitled
to judgment in his or her favor. If, however, the operator meets this burden,
the question now rises and falls on whether the operator can establish that it
would have taken the adverse action in any event for the unprotected activities
alone.

In
reviewing this second prong, I find that the suggestion of some Commission precedent
regarding the order of proof presents a logical inconsistency. Looking to the
operator to establish by a preponderance of the evidence that it would have
taken the action in any event, then looking to rebut a fact already established
by preponderance makes little rational sense. If the operator sufficiently
determines by a preponderance of the evidence that it would have taken the action
for the unprotected activities alone, then no pretext could possibly exist. The
pretext to be established is that the proffered reason hides actual
discriminatory animus. If the operator proves that it would have taken the
action for the unprotected activity alone, it has proved that notwithstanding
evidence of discriminatory animus the outcome remains the same. The employer acknowledges
the existence of the discriminatory animus, but says it was not the ultimate
factor in the decision. Thus, if that particular fact is established by
a preponderance of the evidence, how can that objective finding also be
pretextual?�

Rather, I
believe the burden on the operator in the final prong of the two part test
articulated by the Commission, and the ultimate burden of persuasion on the
complainant to establish pretext, are not separate or distinct burdens but
directly competing burdens. You cannot both find by a preponderance of the
evidence that an employer would have taken the same action without the
discriminatory motive, and find by a preponderance of the evidence that the
opposite is also true. A pretext by definition is a finding that the proffered
reason, here the finding that the operator would have fired the miner anyway,
is not true, i.e., a pretext for discrimination. Black�s Law Dictionary
(9th ed. 2009). This raises the question of how can a fact be established by a
preponderance of the evidence and yet be untrue. That conundrum represents the
logical inconsistency of the order of proof at this stage of a mixed motive
case.

By
viewing the burdens as competing burdens, the Judge can remain consistent with Commission
precedent to evaluate both parties� respective cases, remain true to the burdens
of persuasion on each party, but eliminate the logical inconsistency of
conducting the review of each burden as though they were entirely unrelated. Accordingly,
when reviewing the operator�s evidence that it would have taken the action in
any event, the Judge must do so with an eye toward any evidence of pretext such
an assertion raises. The Judge must evaluate the operator�s case not only reviewing
the operator�s evidence but also looking at all the evidence presented by the
employee that the proffered reason for the adverse action was pretextual. It is
here that the Judge must determine either that the operator met its
burden on the second prong, or that the employee has proved pretext by a
preponderance of the evidence. As stated, these are directly competing burdens,
which means that if one is true the other must be false.

The
Judge�s analysis then is to place the competing burdens on either end of a scale
and weigh the evidence. At this stage, the Judge considers all evidence proffered
by the employee of pretext, and weighs it against all evidence produced by the company
that they would have taken the adverse action in any event.[14] If the evidence weighs greater in
one direction than another, then the scale is tipped to the party presenting
that evidence. If the employer can establish that they would have taken the
action for the unprotected activity alone, then logically pretext was not established.
Likewise, if the employee establishes that the proffered reason is pretextual,
then logic dictates the employer has failed to meet it burden of persuasion. The
one thing cannot exist alongside the other; this is an either/or proposition. In
my reading, prior Commission precedent has not explained this analysis in these
terms, although I find that this is the intent of the Commission�s precedent,
and is consistent with existing case law. Accordingly, this is the balance of
competing interests that I adopt in deciding the matter before me under section
105(c).

A.    Complainant�s
Prima Facie Case

In order to establish a prima
facie case of discrimination, Garza must prove that he was engaged in a
protected activity and that �the adverse action complained of was motivated in
any part by that activity.� Driessen v. New Goldfields, Inc., 20 FMSHRC
324, 328 (Apr. 1988). The burden of proof to establish a prima facie case is
less than the burden of persuasion under section 105(c)(1). Nat�l Cement Co.
of California, 33 FMSHRC at 1065. It is enough that Garza bring forth
sufficient evidence in which I can infer retaliation. To assist in this
process, the Commission has identified several indicia of discriminatory
intent, including: (1) knowledge of the protected activity; (2) hostility
toward the protected activity; (3) coincidence in time between the protected
activity and the adverse action; and, (4) disparate treatment of the
complainant. Sec�y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2510 (Nov. 1981), rev�d on other grounds, 709 F.2d 86 (D.C.
Cir. 1983). Often, direct evidence of motivation is not available. Thus, to
establish motivation I must draw upon reasonable inferences from the facts of
record.

In this case, Garza�s requests for
a safety harness, his actions to encourage safety activities that were
criticized by Early including scraping the wall, and his statement to the MSHA
inspector that he was not provided with fall protection constitute protected
activity. Howard v. Cumberland River Coal Co., 32 FMSHRC 983, 988
(Aug. 2010) (anti-discrimination provision is to be interpreted expansively to
effect purpose of safety of mines). Likewise, his allegations regarding Early�s
conduct, including his repeated verbal assaults, Early�s decision to discipline
Garza for an infraction just a month prior to his termination under
questionable circumstances, a demotion a year earlier under equally
questionable circumstances, the disparate treatment of Garza for the same
offense committed by another employee, and Early�s general pattern of placing
production over safety combine to establish evidence of animus. Sec�y of Labor
on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089-90 (Oct.
2009) (evidence of animus included supervisor ��dogged� him, swore at him, and
assigned him more difficult and onerous tasks as compared to other� employees).

Garza established that Early had
knowledge of Garza�s safety complaints, including the repeated requests for a
safety harness, and the activity of �scraping the walls,� both at the time Garza
scraped the walls, and Garza�s subsequent complaints to Russell and Early of
his safety concerns because of a failure to scrape the wall. Tr. 212-14, 387. Hanson
did not rebut that knowledge during its rebuttal case.[15]
Also, Garza established that there was hostility to the protected activity of
scraping the walls. Tr. 485-87. Further, the disparate treatment of Garza as
compared to Garcia is undisputed and suggests ongoing hostility. While the
timing of the protected activity of scraping the walls may be in the more
distant past, it likely led to Garza�s demotion, and thus, was part of a
pattern of continuing animus by Early against Garza. This pattern was further
evidenced just weeks before Garza�s termination by the unjustified disciplinary
action against Garza for the blown tire on the loader.[16]

Although Scherer denied knowledge
of the discussions between Garza and Miller on the date of the citation, given
his close proximity to the site of the infraction, I find it unlikely that
Scherer did not hear Garza tell the inspector he did not have a harness. Garza�s
statement implied that the company had failed to provide him with proper safety
protection. In the termination of the citation, there was discussion that
�[t]he miner was instructed on the use of fall protection [when] there is a
danger of falling.� Resp. Exh. 6. This discussion could only have occurred with
Scherer at the time of the infraction, as the citation terminates just five
minutes after it was issued.[17]
Id. Although Scherer denied any such conversation, the only person who
would have had such a discussion at that time was Scherer. Thus, I find that Early
was likely aware of Garza�s statement to the inspector through Scherer. This
statement was protected activity that occurred just twenty-four hours before
Garza was terminated.

In summary, I find that Garza
has demonstrated: (1) that Early was aware of his protected activity; (2) that
Early exhibited hostility toward the protected activity; (3) that there exists
a sufficient nexus between the protected activity and the discriminatory action
based on the timelines cited herein; and, (4) that Garza was subjected to
disparate treatment. Accordingly, based on the foregoing, I find that Garza
established a prima facie case of discrimination in his termination from
Hanson.

B.     Respondent�s
Rebuttal of Complainant�s Prima Facie Case

The mine
operator may rebut the prima facie case by showing that: (1) the miner was not
engaged in protected activity; or, (2) that the adverse action was not
motivated in any part by the protected activity. Sec�y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 825 n.20 (Apr. 1981). Should
the company fail to rebut the prima facie case by a preponderance of the
evidence, it may assert an affirmative defense that establishes: (1) the discharge
was also motivated by the miner�s unprotected activity, and (2) it would have
taken the adverse action in any event for the unprotected activities alone. Nat�l
Cement Co. of California, 33 FMSHRC at 1064.

(1)   Miner Was Not
Engaged in Protected Activity

Hanson argues in its post
hearing brief, that none of the issues raised by Garza can be considered
protected activity. The argument is supported largely by declarative sentences
that contain no reference to Commission precedent. As I have found that the actions
indeed constitute protected activity in Garza�s prima facie case, I found
nothing in Hanson�s post-hearing brief, or in the record, that sufficiently
rebuts that finding by a preponderance of the evidence. Accordingly, Hanson has
failed to meet its burden that no protected activity occurred. �

(2)   The Adverse
Action Was Not Motivated in Any Part by the Protected Activity

Scherer denied any knowledge of
Early�s mistreatment of Garza. On direct, Scherer testified that he had little
contact with Garza prior to arriving at the mine. Tr. 17-18. However, on
rebuttal, Scherer clarified that testimony to state that he did have contact
with Garza sometime in 2011, that he observed Garza�s performance, and that he
was very critical of that performance in an unnamed report that was not offered
into evidence. Tr. 652-54. I found Scherer�s testimony was not persuasive on
that issue. Likewise, Scherer�s professions of ignorance and his evasiveness on
the questions of the circumstances of Early�s departure were difficult to
believe given the level of responsibility placed upon him when he began working
at the mine in July 2012. Tr. 16-17, 565-66. Bechly�s testimony of Scherer�s
responsibilities at the plant certainly raised the question of how Scherer
could not have known of the specific circumstances of Early�s departure when it
was Scherer who was the �company insider� sent to observe and to document
Early�s operation of the mine. Tr. 565-66. In fact, Bechly testified in
detail to Scherer�s criticisms of Early�s management of the Servtex plant that
ultimately led to the decision to terminate Early. Id. �I infer
that Scherer wanted to downplay Early�s termination, and the circumstances that
led to that departure, because they might be viewed as assisting Garza�s
discrimination case. As a result, I find that Scherer�s instinct to protect the
company served to limit his overall credibility as a witness.

Likewise, I find it
inconceivable that Bechly, as a human resource professional, never insisted
upon documentation or adherence to the progressive discipline policy, either
for the Garza demotion in 2011, or at the time of his termination. Bechly also
showed no curiosity as to whether Garza had engaged in protected activity prior
to his termination, and seemed to exhibit a surprising lack of knowledge of the
provisions of the Mine Act that offer protections to miners against retaliatory
action by the mine. Bechly testified that he relied on Early�s and Scherer�s
observations alone in making his recommendations for termination. However, to
ignore Garza�s side of the story, and rely upon the opinion of a man who would
be terminated for his poor operation of the plant only weeks later -- at least
in part as the result of his mistreatment of employees -- raises the question
of what level of analysis and thoughtful guidance Hanson human resources
provided to its managers in this instance. Nevertheless, neither Scherer�s
unlikely lack of knowledge of the circumstances of Early�s departure, nor
Bechly�s odd lack of desire to see that a reasonable investigation of the facts
of the termination was conducted, were factors in my decision.

The issue here
is neither the motivation of Scherer, who was not the plant manager at the time
of Garza�s termination, nor that of Bechly in his role as human resource
director. Rather, the factual circumstances of this termination involve the
retaliatory conduct of Early. If Early acted with animus in retaliation for
protected activity, then Scherer�s and Bechly�s belief that this incident was a
termination offense has little probative value. Nat�l Cement Co. of
California, 33 FMSHRC at 1069 (lack of knowledge of protected activity or
discriminatory animus by others does not remove the �taint� of retaliation.) The
bad faith of Early is imputed to the company and cannot be sanitized by
Scherer�s or Bechly�s lack of knowledge of Early�s motivation.[18]
��An operator may not escape responsibility by pleading ignorance due to the
division of company personnel functions.�� Id. at 1067 (citing Metric
Constructors, Inc., 6 FMSHRC at 230 n.4).

As discussed previously, the
animus toward Garza by Early was palpable. The circumstances of the demotion
that occurred about a year prior to the termination raise questions about
whether the demotion itself was retaliatory, however, that question is not
directly before me. It does, however, point to a long history of animus by
Early against Garza. There is no question that Early disliked Garza. Early�s
treatment of Garza as a subordinate was abysmal. Likewise, Early�s history of
lax oversight of safety in favor of increased production is well established. Even
company officials had to admit that Early was not a pleasant person to work
with, and that his safety record left something to be desired. Tr. 55.

Also, the decision to terminate
for failure to follow the lockout/tagout procedure raises questions. Garza�s
supervisor was under the apparently mistaken belief that lockout/tagout of the
diesel motor was not necessary if the clutch was disengaged. Tr. 88-89. Both
Garza and Gallegos testified credibly that this procedure was accepted practice
at the plant notwithstanding company policy to the contrary. Thus, the decision
to terminate Garza for offenses that were, at least during Early�s regime as
plant manager, somewhat common safety shortcuts, strikes me as an overreaction.
Nevertheless, I do not substitute my judgment for that of company management. Only
if Garza can establish that the decision to terminate was the result of his
protected activity is the management decision subject to reversal here. Driessen
v. New Goldfields, Inc., 20 FMSHRC at 328.

Garza�s undisputed testimony
that Early got very angry at earlier safety concerns raised by Garza certainly
provides evidence that Early�s animus toward Garza was long held and
continuing. The incident involving scraping the wall was clearly protected
activity by Garza that was met with furious indignation by Early for its
interference with production. Also, Garza testified credibly that he made
multiple requests for safety equipment and until Scherer placed the order for
his harness, his prior requests had been ignored. A request for safety
equipment is a protected activity. Sec�y of Labor on behalf of Bailey v. Arkansas-Carbona
Company, 3 FMSHRC 2313, 2318 (Oct. 1981) (ALJ). Thus, Early�s late
conversion to safety watchdog, after the arrival of Scherer on the scene,
strikes me as more self-serving than a rational, dispassionate review of Garza�s
conduct on August 29, 2012. I believe Early was more likely driven in part by a
desire to keep his job, which was clearly in jeopardy after Scherer arrived at
the mine. Early no doubt understood that his pressure on production at the
expense of safety was not well received by the company. His mistreatment of his
employees was also apparently well understood by Hanson management during this
period. Tr. 206-07. Indeed, Early�s eventual termination several weeks after
Garza�s dismissal certainly confirms that Early�s operation of the mine was less
than textbook.

Further, the issuance of the
write-up against Garza for the blown tire incident, when it was apparent that
Garza had nothing to do with the abuse of the equipment, is evidence that Early
was after Garza as recently as just a few weeks before the termination. The circumstances
of Garza�s demotion, following complaints and concerns regarding safety issues,
and Early�s history of verbally abusive treatment of Garza, leads to the
reasonable conclusion that Early�s motivation on August 29, 2012, was at least
in part in retaliation for Garza�s previous protected activity. Early had Garza
in his sights for at least the prior two years, and likely perceived Garza as
an ongoing irritant in his efforts to maximize production. If Early had
objections regarding Garza�s performance as an employee, Hanson offered no
evidence to support those criticisms in the way of performance appraisals,
human resource documents, or other reports. The only corrective action form
submitted by the company tended to prove further animus toward Garza by Early,
rather than support any concern with Garza�s performance on the job.

In addition, Garza also told the
inspector on August 29, 2012, that the reason he was on the crusher without a
safety harness was that he did not have one. That statement to the inspector
was also protected activity, and would tend to discredit Early, who was already
on shaky ground for his lax safety practices at the mine. Thus, to bolster his
safety credentials in the presence of Hanson upper management, Early advocated
for the termination of both Garza and Gallegos in an apparent effort to portray
himself as a safety conscious manager. In fact, even Scherer counseled against
the termination of Gallegos, placing Early in the fortuitous position of
appearing to Hanson management to hold his employees to higher safety standards
than might Scherer, when the record reflects that safety was never a priority
for Early prior to August 29, 2012. Thus, I find that Early�s discriminatory animus
toward Garza was at least in part the result of Garza�s protected activity
described herein and Hanson has failed to meet its burden to rebut Garza�s
prima facie case.

C.    Respondent�s
Affirmative Defense

If an
operator is unable to rebut a prima facie case of discrimination, it may
nevertheless prove an affirmative defense by showing that: (1) the discharge
was also motivated by the miner�s unprotected activity; and, (2) it would have
taken the adverse action in any event for the unprotected activities alone.
This affirmative defense, termed the Pasula-Robinette test, must be
established by the employer by a preponderance of the evidence. Robinette, 3
FMSHRC 803, 817-818; Pasula, 2 FMSHRC 2786. Having
determined that the adverse action was motived at least in part by
discriminatory animus, the company bears the burden of persuasion that the
discharge was also motivated by unprotected activity.

The
Commission has explained that an affirmative defense should not be examined
superficially or approved automatically once proffered. Nat�l Cement Co. of
California, 33 FMSHRC at 1072 (citing Haro v. Magma Copper Co., 4
FMSHRC 1935, 1938 (Nov. 1982)). Rather, in reviewing an affirmative defense, the
judge must determine whether it is credible and, if so, whether it would have
motivated the particular operator, as claimed. Id., citing Bradley,
4 FMSHRC at 993. Pretext may be found where the asserted justification is weak,
implausible, or out of line with the operator�s normal business practices such
that it was seized upon to cloak discriminatory motive. Chacon, 3 FMSHRC
at 2516; see also Nat�l Cement Co. of California, 33 FMSHRC at
1072, citing Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc.,
12 FMSHRC 1521, 1534 (Aug. 1990) (citing Haro, 4 FMSHRC at 1937-38). As
discussed above, the parties share equal and competing burdens at this stage. While
the company must prove its affirmative defense by a preponderance of the
evidence, the miner must establish pretext in the assertion of the proffered
justification by the same burden. Where two parties carry equal and competing burdens,
it is up to the Judge to determine by a preponderance of the evidence which
party has met its burden.

(1)   Was the Adverse Action Also Motivated by Unprotected
Activity

Garza�s
breach of safety protocols was the �trigger event� for his termination. The
operator cited no other basis for the action, and the fact that Garza violated
the safety protocols on the date in question is not in dispute. Thus,
notwithstanding the findings of animus against Garza by Early, and the
establishment of a prima facie case, I find Hanson has brought forth sufficient
evidence to establish that the adverse action was also motivated by unprotected
activity.[19]

(2)     
Would Respondent Take the Action
for the Unprotected Activity Alone

In
this analysis, I must look to the evidence proffered by the company to support
its argument that it would have taken the adverse action against Garza for the
unprotected activities alone. The burden rests with Hanson to prove this prong
by a preponderance of the evidence. At the same time, I do not view Hanson�s
evidence in a vacuum. Rather, I must weigh the evidence Hanson presents against
any evidence put forth by Garza that the proffered reason for his discharge, in
this case violation of safety protocols, is a pretext. First I review the
evidence submitted by Hanson.

(a)        
Testimony of Scherer

Scherer testified that he was
involved in the decision to terminate Garza. Tr. 52-53. In that testimony
Scherer admitted that he has observed employees working in positions similar to
Garza without fall protection. Tr. 52. Scherer admitted that not all employees
will be terminated for such an offense. Id. He indicated that when he
witnessed an employee violating such a safety protocol, he would counsel the
employee immediately, and then determine later whether disciplinary action was
necessary. Tr. 53. Thus, the lack of fall gear alone does not appear to be a
termination offense.

Scherer was particularly
critical of Early�s management of the facility, citing the lax safety culture
that was present, and the lack of enforcement of safety rules under Early�s
tenure. Tr. 54-55. Included among the areas where Early was lax in safety
management was following the lockout/tagout procedure. Tr. 55-56. He also testified
to an employee who violated the lockout/tagout procedure. Tr. 56. That employee
apparently received a three day suspension but was not terminated. Tr. 188-89. Thus,
I find that failure to follow the lockout/tagout procedure is not a termination
offense at Servtex.

Scherer justified the harsh
treatment of Garza based upon the fact that Garza was a former supervisor. He
testified that supervisors are held to a higher standard. Tr. 98, 130. Scherer
explicitly denied that Garza�s termination had anything to do with protected
activity. Tr. 88. Nevertheless, Scherer admits that it was Early who terminated
Garza. Tr. 55.[20]

For his part Scherer could not
identify any other Servtex employees, or employees of Hanson who were
terminated for similar offenses. He stated that if the offense had been one or
the other, the likely discipline would have been a three day suspension. Tr.
188-89. However, Scherer felt the combination of the two offenses warranted
discharge. While he denied the presence of the inspector or the citations
resulted in the harsher discipline, he stated that he would have disciplined
Garza exactly the same way had it been his decision alone. Tr. 170

(b)        
Testimony of Bechly

Hanson�s other evidence that it
would have taken the same adverse action in any event was presented through the
testimony of Bechly. In his position, Bechly could be expected to know of any
number of situations in which similar behavior resulted in termination. However,
his testimony did not shed much light on that effort.

Bechly testified to supervisors
at other facilities who were terminated. In that discussion, he mentions two
(non-supervisory) employees who were terminated �for failure to lockout/tagout
after having been counseled and talked to substantially about that[.]� Tr. 521.
He also testified to a �lead person, who created an unsafe situation in his
work environment� who was fired. Tr. 521-22. Bechly offered no documentation to
support these prior terminations, although, as human resources director one
could assume that such documentation was readily available to him. As such,
this hearsay evidence from Bechly is all the company produced to establish
similar adverse actions at other facilities.[21]

Bechly testified that both
Scherer and Early were asked if there were any other instances of others
behaving in the same manner and he was told no. Tr. 524. This contradicts
Scherer�s own experience of both employees lacking fall gear and employees
failing to follow the lockout/tagout procedures. Bechly further denied being
aware of any allegations that other supervisors at Servtex may have allowed
employees to engage in similar violations, but indicated that information may
have had an impact on his decision in Garza�s case. Tr. 522-23. �If it happened
and we had not acted in the same manner, we would be asking questions why are
we doing this different here.� Id.

D.    Complainant�s
Evidence of Pretext

In Nat�l
Cement Co. of California, the Commission analyzed
the issue of pretext in the context of other federal discrimination statutes,
and concluded that a complainant may establish that an operator�s explanation
is not credible by demonstrating either: (1) that the proffered reason has no
basis in fact; (2) that the proffered reason actually did not motivate the
adverse action; or (3) that the proffered reason was insufficient to motivate
the adverse action. Nat�l Cement Co. of California, 33 FMSHRC, at 1073, citing Madden v. Chattanooga
City Wide Service Dep't., 549 F.3d 666, 675 (6th Cir. 2008) (citing Manzer v. Diamond Shamrock
Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)),
overruled on other grounds, Geiger v. Tower Automotive,
579 F.3d 614 (6th Cir. 2009) (emphasis in original));
McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir.
1993). The first type of showing consists of evidence
that the proffered basis for the complainant�s discharge never happened, i.e.,
that it was factually false or did not exist. Id. The third type of
showing generally consists of evidence that other miners were not fired even
though they engaged in substantially similar conduct that allegedly motivated
the discharge of complainant. Both types of rebuttal are direct attacks on the
credibility of the operator�s proffered motivation for firing the miner. Id.
Unlike the first and third discussed above, the second showing �is
of an entirely different ilk.� Manzer v. Diamond Shamrock Chemicals Co.,
29 F.3d 1078, 1084 (6th Cir. 1994).

There, the plaintiff admits the factual
basis underlying the employer�s proffered explanation and further admits that
such conduct could motivate dismissal. The plaintiff's attack on the
credibility of the proffered explanation is, instead, an indirect one. In such cases,
the plaintiff attempts to indict the credibility of his employer�s explanation
by showing circumstances which tend to prove that an illegal motivation was more
likely than that offered by the defendant. In other words, the plaintiff argues
that the sheer weight of the circumstantial evidence of discrimination makes it
�more likely than not� that the employer�s explanation is a pretext, or
coverup.

Id.

One of the more obvious
challenges for Respondent in this case is that the decision to terminate Garza
is not consistent with the suggested punishment under the progressive
discipline policy for these transgressions. Under the progressive discipline
policy, the most likely penalty for Garza�s infractions would be a three-day
suspension, or perhaps even two three day suspensions, one for each
transgression. Resp. Exh. 8. Although Garza�s behavior resulted in two
citations to the company, given the lesser treatment for the same offense
involving other miners, and the fact that Early observed Garza on the crusher
without a harness on prior occasions, the punishment in this instance does not
seem to fit the crime. Thus, when an individual is singled out for harsher
treatment than similarly situated employees, we look to the circumstances that
might lead to the decision to do so. Nat�l Cement Co. of California, 33
FMSHRC at 1073.

Hanson
argues that because Garza�s infractions were of two major safety violations,
termination was appropriate under the circumstances notwithstanding the
progressive discipline policy. The argument is not entirely without merit. Certainly
the progressive discipline policy allows for the company to ignore its own
guidelines whenever it deems it appropriate.[22]
In this case, the decision to deviate from the company policy raises some concerns
regarding the company�s motivations. A company�s failure to follow its own
policies can be evidence of pretext. See Rudin v. Lincoln Land Cmty. Coll.,
420 F.3d 712, 727 (7th Cir. 2005) (failure to follow company�s own procedures
may be evidence of pretext). Yet, I do not believe that this deviation from the
progressive discipline policy itself was sufficient evidence of pretext. I
credit Bechly�s testimony on the application of the progressive discipline
policy in this case. Thus, I do not rely upon Hanson�s uneven application of
the progressive discipline policy to establish pretext.[23]

However, I do find it difficult
to reconcile the disparate treatment that occurred with respect to Garcia for
the same violation that led, in part, to Garza�s termination. Chacon, 3
FMSHRC at 2512 (pretext may be established by disparate treatment).[24]
One obvious difference between Garza�s transgression and Garcia�s transgression
was the presence of the MSHA inspector. Another is Early�s well documented
longtime animus toward Garza. It strikes me as incredulous to suggest that the
offense for which Hanson strongly argues is part of the reason it had little
choice but to terminate Garza was worthy of little more than a verbal warning
to Garcia. If nothing else, it is clear evidence that enforcement of safety
violations at the plant under Early�s regime was haphazard and random. If the
particular safety violation of which Hanson contends is so egregious that
termination must ensue, then one can assume that message must have been clearly
sent to all Servtex supervisors to ensure standard and proper enforcement. Yet,
in his testimony Mosquedo seemed nonchalant about the lack of safety equipment
when Garcia was the violator. Thus, if strict companywide enforcement was the
policy, as Scherer would have us believe, it seems to have escaped Mosquedo
entirely.

More likely, the inference I
draw from this evidence is that the lax enforcement of safety violations as
testified to by both Gallegos and Garza was standard procedure under Early�s
undistinguished tenure. Scherer confirms that Early created a culture where lax
enforcement of safety was the norm. Tr. 55. This evidence leads me to the
conclusion that Mosquedo did not harshly discipline Garcia for this particular
transgression because it was much more commonplace than the company cares to
admit in this proceeding.[25]
While the parties all acknowledge that working on the crusher without safety
equipment is wrong, and violates company safety policy as well as MSHA
regulations, the message Early sent to his supervisors was that such violations
should not be enforced if they interfere with production. Thus, I find that on
the date that Garza was on the crusher, in clear violation of safety protocol,
he was following the standard level of mine safety in the Servtex plant, and
complying with the unwritten policy of the Servtex plant to value production
over safety.[26]

I note that safety protocols and
regulations are not present for the convenience of management to enforce as
they see fit, or to use as a tool to discipline disfavored employees, or as
some expedient defense to deflect attention from a pattern of poor safety
compliance at a particular facility. Early created an environment of bullying
employees who he perceived criticized his lax safety enforcement, and his
policy of placing production over safety at the risk of his employees was well
documented. His sudden conversion to zero tolerance for safety infractions on
August 29, 2012, is difficult to accept as credible. The disparate treatment of
Garza in this case is evidence of pretext.���

��

As a basis to defend the
disparate treatment of Garza, Hanson repeatedly noted that Garza was a former supervisor,
and taught training classes, and thus should be held to a higher standard. Tr. 98,
130-31; Resp. Post-hearing Brief at 1. This argument conveniently ignores the
fact that the company had demoted Garza from supervisory position a year
earlier, under somewhat questionable circumstances.[27]
Holding Garza to the higher standard of supervisor a year after demoting him to
a lesser position simply does not pass the smell test. Garza was not a
supervisor, and thus, cannot be argued to be held to any higher standard of
safety at the plant than any other employee, including Garcia. The company made
the decision to treat Garza as less than a supervisor when they demoted him. It
cannot be a post-hoc justification that his prior service as supervisor now warrants
a higher standard. I completely reject this attempt by the company to bootstrap
a higher standard on the same employee they demoted so cavalierly a year
earlier.[28]

The company also went to great
lengths to prove that suitable protective gear was readily available to Garza. Tr.
134, 160, 240, 606. The gear was maintained in the offices in the upper part of
the mine, while Garza operated at the base of the mine. Hanson argues that
Garza simply needed to drop by any of the offices to pick up his safety gear at
the beginning of the shift. I found this line of testimony to be of little
value. There is no factual dispute that Garza violated company policy by
standing on top of the crusher without protective fall gear. Based on this
testimony, I could also infer that if the company were so concerned about the
use of fall protection, they should have kept the fall protection close to the
crusher for easy access, which they admit they did not. However, whether the
fall gear was sitting on the ground in front of Garza, or was back in an office
at the top of the mine, is of little consequence here, as the fact of the
violation is not in dispute. The issue is whether the company�s proffered
reason for termination was a pretext.

E.     Weighing
Complainant�s Burden versus Respondent�s Burden

In the absence of Early�s
testimony, Hanson was unable to refute the allegations of Early�s misconduct,
or his very clear animus toward Garza in any meaningful way. Thus, Hanson could
not rebut Garza�s prima facie case establishing animus. Hanson was further
unable to bring forth evidence to deny that Garza had engaged in protected
activity, and thus was also unable to refute that portion of Garza�s prima
facie case. Thus, having failed to rebut the prima facie case, Hanson must
establish its affirmative defense to relieve liability for Early�s
discriminatory conduct.

In
doing so, Hanson must establish that it would have taken the action based
solely upon the unprotected activity. I find that Bechly�s testimony of other
miners who were terminated for similar offenses was hearsay and did not rise to
the level of reliability necessary to meet the company�s burden. He offered no
documents of these terminations to determine whether the circumstances were, in
fact, similar. The absence of that documentation left Bechly�s testimony, and
to some extent Scherer�s testimony, as the only evidence proffered by Hanson
that it would have taken the adverse action in any event.[29]

Hanson�s
affirmative defense was further undermined by the failure of Servtex
management to take any disciplinary action against Garcia when he engaged in
the same misconduct for his failure to wear protective gear while adding oil to
the gearbox on the top of the crusher. As that single offense barely merited a
verbal warning in Garcia�s case, Hanson was left to prove either that Garza�s
failure to do the proper lockout/tagout procedure was a termination offense in
and of itself (when its own progressive discipline policy as well as prior
actions call for a three day suspension), or that the unique combination of the
two safety offenses justified termination.

Garza was a first time offender,
according to company records, for both offenses. Prior history at the plant
establishes that being on top of the crusher without fall gear was not
considered a serious offense at Servtex, notwithstanding company policy to the
contrary. If it were, Mosquedo would have strongly disciplined Garcia for the
offense, which occurred just a month or two before Garza�s termination. In the
face of that evidence, Hanson would have to prove that the lack of protective
gear combined with the failure to follow the lockout/tagout procedure demands
termination. Yet, given the lax safety environment at Servtex during Early�s
tenure, and the testimony from Garza�s supervisor that even he believed Garza
had followed proper protocol with respect to the lockout/tagout procedure,
Hanson simply cannot meet its burden that such behavior would have resulted in
termination of this employee absent the taint of Early�s discriminatory animus.

Simply put, Hanson failed to
demonstrate by a preponderance of the evidence that the combination of both
offenses was a termination offense. Scherer�s testimony inferred that if in the
position of Plant Manager at the time of Garza�s offense, he might have
instituted a more strict record of compliance with safety standards than did
Early. However, Scherer was not the plant manager at the time of the
termination, thus, his testimony of what he considered a termination offense or
how he would have handled a similar situation is not definitive. Hanson offered
no evidence of any individual at the Servtex plant fired for similar violative
behavior in the recent past. I find the evidence presented by Bechly of similar
terminations was not persuasive and was not supported by any documentary
evidence (though such documentary evidence was presumably available to Hanson).
I further note that none of the anecdotes offered of terminations for similar
behavior occurred at the Servtex plant. In the absence of supporting
documentary evidence of past termination actions for similar offenses that
might tend to support Hanson�s affirmative defense, I find Hanson has failed to
establish its burden by a preponderance of the evidence.[30]

A complainant may demonstrate
pretext where the asserted justification is weak,
implausible, or out of line with the operator�s normal business practices such
that it was seized upon to cloak discriminatory motive. Nat�l Cement
Co. of California, 33 FMSHRC at 1072; Chacon, 3 FMSHRC at 2516. Accordingly, after carefully
weighing all of the evidence presented by both parties, I find that Garza has
established by a preponderance of the evidence that the proffered reason for the
termination was pretextual. In applying the National Cement tests as
guidance, I find that that the proffered reason was
insufficient to motivate the adverse action. I find persuasive the
evidence that Garcia was treated differently than Garza for a similar
infraction, as well as the company�s inability to provide sufficient
documentation to prove similar adverse actions. I also find that the evidence
of discriminatory animus and the culture of indifference to safety violations weigh
in favor of pretext. Given lax enforcement of safety violations at the Servtex
plant, I find that the termination of Garza was not in line with the operator�s
normal business practices. Thus, the weight of evidence in this case lies in
favor of a finding that the termination was pretextual.

In the end, it is clear that with
Early at the helm, the lax safety environment at Servtex permitted individuals
to violate safety protocols, often without punishment. In fact, it could be
inferred from the record that such violations were encouraged when necessary so
as not to inhibit production. The preponderance of the evidence establishes
that this lax safety environment prevailed at Servtex throughout the period in
question here. Although the company did take corrective action after the fact
to improve the safety environment when it terminated Early, that
post-termination corrective action did nothing to alleviate the situation that
existed on the day that Early terminated Garza.

On August 29, 2012, Servtex was
a plant in trouble. Early had proven himself to be an incompetent manager, and ongoing
lax enforcement of safety violations invited MSHA�s citations on that day. For
that, Hanson had no one to blame but itself. The termination of Garza purporting
to be for his breach of safety protocols served as a convenient scapegoat for
Early�s mismanagement of the facility. It was not, however, representative of normal
business operations at Servtex, nor did it remove the taint of Early�s
discriminatory animus. Accordingly, Hanson has failed to meet its burden on its
affirmative defense and Garza is entitled to judgment in his favor.

���

V.               
Conclusion

Garza�s termination was
motivated, at least in part, by Early�s discriminatory animus toward Garza
based upon earlier, documented protected activity, and was evidenced by a well-established
pattern of animosity toward Garza by Early beginning at least with the demotion
in 2011, and concluding with his termination. Although aware of Early�s
shortcomings, Hanson management chose to ignore what was occurring at the plant
on a daily basis, and made a decision in a vacuum to terminate Garza without
the benefit of an investigation into the circumstances that led to Garza�s departure
from safety protocol. It did so at its peril under the Mine Act. See Merit
Contructors, Inc., 6 FMSHRC at 230 (precipitous discipline without proper
investigation is done at the mine�s own legal risk). Accordingly, I find that Garza
has established a prima facie case under section 105(c), and that Hanson failed
to rebut that prima facie case, either by establishing that the protected
activity did not occur, or by establishing that the company would have taken
the adverse action in any event for the unprotected
activities alone. In so finding, I also find that Garza established
pretext by a preponderance of the evidence. �

ORDER

����������� Manuel Garza�s discrimination complaint under
section 105(c)(3) is GRANTED.

����������� It is ORDERED that Garza be reinstated
immediately to his former position as leadman at Hanson�s Servtex facility with
an equal or greater rate of pay.

It is further ORDERED
that Hanson shall pay Garza backpay, interest, and full benefits from the date
of termination, and reinstate such seniority as he is entitled as though no
action had been taken against him.

It is further ORDERED
that Hanson shall also pay to Garza his reasonable attorney�s fees, costs, and
expenses associated with this complaint.

����������� It is further ORDERED that Hanson shall
EXPUNGE from its personnel records any reference to Garza�s termination
on August 31, 2012, the circumstances surrounding his termination, and this
discrimination action.

����������� It is further ORDERED that Hanson
shall post a copy of this Decision on Liability and Final Order at
all of its mining facilities, placed in conspicuous, unobstructed places where
notices to employees are customarily posted, for a period of 60 days, together
with a posting by Hanson at such properties that it will not violate the Mine
Act.

PENDING A FINAL
ORDER

The judge retains jurisdiction
of this proceeding pending the issuance of a final order granting relief. The
parties are ORDERED to work together to determine the amount of back
pay, interest, and attorney�s fees to which Garza is entitled, and to jointly
submit to this Court not later than thirty days from receipt of this Decision,
a stipulation as to the proposed award of damages, together with specifics on
the calculation of the damages. Such stipulation will not preclude Respondent's
rights to seek review of this Decision. I will retain jurisdiction on this case
until receipt of that joint report and issuance of a Final Order and this
Decision shall not become final until issuance of my Final Order.

If the parties are unable to come
to agreement within thirty days, they shall notify me in writing, and I will
schedule a further proceeding limited to the issue of damages at a time in the
near future.

Following issuance of the Final
Order, this case will be referred to MSHA for assessment of a civil penalty. 29
C.F.R. � 2700.44(b).

������������������� /s/
James G. Gilbert�

James G. Gilbert

Administrative
Law Judge

Distribution (Certified Mail)

Mark A. Sanchez, Esq., Gale, Wilson, and Sanchez,
P.L.L.C. 115 East Travis, Floor 19, San Antonio, Texas 78205

William K. Doran, Esq., Ogletree, Deakins, Nash, Smoak
& Stewart, P.C., 1909 K Street NW, Suite 1000, Washington, D.C.20006

[1]
Section 105(c)(1) provides in pertinent part:

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner � because such
miner � has filed or made a complaint under or related to this Act[.]

[2]
Section 105(c)(3) of the Act states in pertinent part:

Within 90 days of the receipt of a complaint filed under
paragraph (2), the Secretary shall notify, in writing, the miner, applicant for
employment, or representative of miners of his determination whether a
violation has occurred. If the Secretary, upon investigation, determines that
the provisions of this subsection have not been violated, the complainant shall
have the right � to file an action in his own behalf before the Commission,
charging discrimination or interference in violation of paragraph (1). The
Commission shall afford an opportunity for a hearing � and thereafter shall
issue an order, based upon findings of fact, dismissing or sustaining the
complainant's charges and, if the charges are sustained, granting such relief
as it deems appropriate, including, but not limited to, an order requiring the
rehiring or reinstatement of the miner to his former position with back pay and
interest or such remedy as may be appropriate.

[3] There is no information in the record to explain the
multiple orders extending time for an Answer, all of which were issued
prior to my assignment to the case.

[4]
On rebuttal, Production Manager Jacob Scherer testified to a �best practices�
team that he participated in that was critical of Garza�s operation of the base
of the plant during the time he was supervisor. Tr. 652-54. Although he
testified that those findings were presented to Early prior to Garza�s
demotion, no record or copy of any written report to support the testimony was
offered by Hanson, either at the hearing, or as a request to supplement the
record post-hearing. Tr. 654.

[5] In fact, such an incident occurred sometime prior to Garza�s
termination when a rock slide came down and landed a few feet away from Garza,
and Garza brought that safety infraction to the attention of Early at the time.
Tr. 486. The record does not reflect when that rock slide occurred.

[6] Bechly testified that they discussed the possibility
of placing Garza on a performance plan for 120 days, but that idea was rejected
by Early, ostensibly to keep Garza employed at Servtex. Tr. 550.

[7] I take notice that in this area of the State of Texas
it is apparently considered insulting to be compared to the President of the
United States.

[8] The gearbox on the top of the crusher leaked oil and
need to be refilled two or three times per week. Tr. 399. Garza reported this
oil leak to Mosquedo on multiple occasions; however Mosquedo did not consider
repair of the gearbox to be a priority. Tr. 400. The decision not to repair the
gearbox required Garza to refill the oil. Tr. 400. Each time the oil had to be
refilled, the crusher was out of operation for production purposes. Id. The
parties dispute whether the maintenance of the faulty gearbox was the
responsibility of Mosquedo�s maintenance unit, or the responsibility of the
operator of the crusher. Tr. 123. For the purposes of this matter it is
unnecessary to resolve that factual dispute.�

[9] In fact, Garza credibly testified that in July 2012, Early
saw him on the crusher without a safety harness, and with the engine in idle
(the same offenses that led to his termination), and that Early�s concern was
not that Garza lacked safety equipment, but that Garza�s actions slowed
production. Tr. 411-12.

[10] A �mixed motive� case exists �where it is found that
both the miner�s protected activity and his unprotected activity motivated the
adverse action[.]� Sec'y of Labor on behalf of Pendley v. Highland Mining
Co., 34 FMSHRC 1919, 1923, n.3 (Aug. 2012).

[11]
Judges sometimes face remand for failing to conduct a proper or thorough
analysis of the operator�s proffered reason as pretextual. Turner v. Nat�l
Cement Co. of California, 33 FMSHRC 1059, 1076-77 (May 2011); Metz v.
Carmeuse Lime, Inc., 34 FMSHRC 1820 (2012) (dissent argues that ALJ failed
to adequately consider pretext). Under McDonnell Douglas, that pretext
analysis is conducted when the employer meets its burden of production with a
nondiscriminatory reason for the adverse action. Here, however, the operator�s
burden is not production but persuasion. Thus, the operator must prove its case
by a preponderance of the evidence. There lies the challenge for pretext analysis.
See discussion infra pages 9-10 and accompanying notes.

[12] Again, to state the obvious, successful rebuttal
proves that pretext did not exist, thus analysis of pretext is unnecessary. Pretextual
analysis is only relevant when considered during the employer�s affirmative
defense.

[13] When an operator fails to rebut the prima facie case,
the operator now faces a �mixed motive� case because the operator is contending
that notwithstanding the discriminatory motivation it failed to rebut, there
was an equally compelling nondiscriminatory motive represented by the
unprotected activity, and that activity alone was sufficient to justify the
adverse action. See supra note 10.

[14] An employee�s prima facie case need not establish its
elements by a preponderance of the evidence. Thus, it is necessary to review
the employee�s evidence in total, to determine whether the employee has met its
burden of persuasion on pretext.

[15] In its post-hearing brief, Hanson argues that Early�s
knowledge of the safety complaints cannot be imputed to the company. However,
that argument is not consistent with Commission precedent. Nat�l Cement Co. of California, 33 FMSHRC 1059; Metric Constructors, Inc.,
6 FMSHRC 226 (Feb. 1984). Further, Hanson�s reliance on Metric and Nat�l
Cement to support this argument is entirely misplaced. Neither case
supports Hanson�s attempt to cleanse Early�s discriminatory motivations in a
single conference call, and the weight of testimony from Hanson�s own witnesses
place the responsibility of termination ultimately on Early.

[16] Although Gallegos did not identify the time period in
which Garza made the complaints to Early and Russell regarding the need to
scrape the wall, I infer that these complaints were made after Garza was
demoted and assigned to the base of the plant when such a danger would be of
particular concern to Garza.

[17] Scherer also denied telling the inspector that part
of the termination would be the use of the Genie boom in future situations. Scherer
testified that it was likely Mosquedo who so informed the inspector, but only
Scherer was present with the inspector at 6:50 a.m. on the date of the
infraction. Thus, it had to have been Scherer who explained to the inspector
how the company intended to deal with preventing future infractions.

[18] However, the company can still prove its case that it
would have taken the adverse action in any event. This is a different analysis
than the analysis under the prima facie case that the adverse action was
motivated, at least in part, by the discriminatory animus. On rebuttal, the
company must refute the prima facie finding of animus. In its affirmative
defense, it must prove that while animus was present, it would have taken the
action in any event.

[19] Accordingly, this is a
�mixed motive� case. Sec'y of Labor, Mine Safety & Health Admin.
on Behalf of Lawrence L. Pendley, 34 FMSHRC 1919, 1923, n.3 (Aug. 2012). See
supra notes 10, 13.

[20] Respondent�s post-hearing brief argues that the
termination was a group activity, and not one man�s decision. However, the
testimony cited above establishes that Early was the decision maker, and the
others on the call simply agreed with the decision. While the others may not
have had knowledge of the protected activity, or Early�s discriminatory motive,
that lack of knowledge does not excuse Hanson its liability for an unlawful
termination. Nat�l Cement Co. of California, 33 FMSHRC at 1069 (lack of
knowledge of protected activity or discriminatory animus by others does not
remove the �taint� of retaliation).

[21] In addition to the lack of documentation, the company
did not produce the plant managers involved in these decisions, thus, I had no
ability to hear testimony from the direct participants in these matters to
determine whether they were relevant to the issues raised in this case.� �

[22] Of course, a progressive discipline policy that permits
the company to ignore the progressive discipline policy is not much of a
progressive discipline policy at all.

[23] I also find that given Garza�s admission of the facts
that establish that he failed to follow company policy regarding safety on the date
of his termination, Garza clearly cannot establish that the proffered reason
has no basis in fact.

[24] This attack on the employer�s proffered reason
addresses the third prong referenced in Nat�l Cement Co. of California.

�

[25] In fact, Gallegos credibly testified that it was
normal procedure for individuals to access the top of the crusher without fall
protection. Tr. 214.�

[26] Garza credibly testified that in July 2012, Early saw
him on the crusher without a safety harness, and with the engine in idle, and
that Early�s concern was not that Garza lacked safety equipment, but that
Garza�s actions slowed production. Tr. 411-12. This incident is further
evidence of Early�s desire to place production over safety, and reinforces the
notion that Early�s safety concerns on August 29, 2012, were pretextual. See
supra note 9.

[27] On rebuttal, Scherer testified as to a report not
offered into evidence that was critical of Garza�s performance as supervisor. I
did not find the testimony helpful as it was not accompanied by any record of
these alleged criticisms of Garza�s performance. If these records were the
basis for Garza�s demotion, I find it unusual they were not part of the record
for Bechly�s review, or part of the personnel file for Garza. As such, that
testimony was given little weight. See supra note 4.

[28] I likewise reject the argument that Garza�s service
on the safety committee somehow transforms his transgression into a termination
offense. Service on the safety committee in a facility that placed so little
emphasis on safety cannot be perceived as anything other than a disingenuous post-hoc
justification for termination.

[29] The progressive discipline policy was not helpful to
Hanson in this case. It did not specify or require termination when a miner is
faced with two or more allegations of safety violations. Thus, reliance on that
policy to satisfy the burden was not persuasive.

[30] As the parties maintain competing burdens, this
finding logically means that pretext is established. However, an analysis of
Garza�s evidence of pretext is required to satisfy the Commission�s
requirements for the record, and to demonstrate how competing burdens demand
competing analysis.