Theodore Oesau v. Rogers Group, Inc.

Plain-English summary

Theodore Oesau alleged that Rogers Group fired him after he raised numerous equipment and workplace safety concerns at its Arkansas quarry. Judge David Simonton found that the complaints were protected and that management knowledge, possible hostility, and close timing supported an initial inference of discrimination. The company presented credible testimony that Oesau repeatedly directed racist harassment at the Black plant manager and sought to have him fired. The judge found that Rogers Group terminated Oesau solely for violating its harassment policy and would have made the same decision regardless of the safety activity. He dismissed the complaint, and the Commission later denied discretionary review.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1) and (3)
• Outcome: The discrimination complaint was dismissed, with no relief awarded.
• Key point: Protected safety activity and close timing did not establish retaliation when credible evidence showed that the discharge resulted from independently sufficient workplace harassment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

August 4, 2020

THEODORE OESAU,

Complainant,

v.

ROGERS GROUP, INC.,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. CENT 2019-0276-DM

Case No. SC-MD-2019-07

Mine: Greenbrier Quarry

Mine ID: 03-00855

DECISION

Appearances:              Chris
W. Burks, WH Law, PLLC, 1 Riverfront Place, Suite 745, North Little Rock, AR
72114

Margaret
S. Lopez, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., 1909 K. Street ,
N.W., Suite 1000, Washington, D.C. 20006

J. Carin Burford, Ogletree, Deakins,
Nash, Smoak, & Stewart, P.C., 420 20 th Street North, Suite 1900,
Birmingham, AL 35203

Before:                                   Judge Simonton

This case is before me upon a complaint
of discrimination filed by Theodore Oesau against Rogers Group, Inc. (“Rogers
Group” or “Respondent”), pursuant to section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 815(c)(3). [1]
Oesau contends that Rogers Group violated the Mine Act when it terminated his
employment because he engaged in activity protected under section 105(c). Rogers
Group maintains that Oesau was terminated for violating the company’s No
Harassment Policy by uttering racial slurs on numerous occasions and by trying
to get the mine’s plant manager fired because he is Black.

A hearing was held on February 18–21,
2020 in Little Rock, Arkansas. Based on my full consideration of the testimony
and exhibits presented at hearing, the stipulations of the parties, my
observations of the demeanor of the witnesses, and the parties’ post-hearing
briefs, I find that Rogers Group did not violate the Mine Act when it
terminated Oesau.

I.          
STIPULATIONS

In its February 7, 2020 prehearing
submission, Respondent Rogers Group submitted the following joint stipulations [2]
on behalf of the parties:

Respondent is and, at all times relevant to this
proceeding, was the operator of the Greenbrier Quarry, Mine ID number 03-00855.

The Greenbrier Quarry is a mine as defined in Section 3(h)
of the Mine Act, 30 U.S.C. § 802(h).

At all times relevant to this proceeding, products of the
Greenbrier Quarry entered commerce, the operations of products thereof
affecting commerce within the meaning and scope of Section 4 of the Mine
Act, 30 U.S.C. § 803.

Rogers Group is an operator, as the term “operator” is
defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d).

The Federal Mine Safety and Health Commission properly has
jurisdiction over this proceeding.

Complainant Theodore Oesau (“Complainant” or “Oesau”) was
previously employed by Rogers Group.

Oesau is a miner, as defined in the Mine Act at 30 U.S.C.
§ 802(g).

Rogers Group terminated Oesau’s employment, effective
March 14, 2019.

Oesau timely filed with MSHA a discrimination complaint
under Section 105(c) of the Federal Mine Safety and Health Act (“Mine
Act”), 30 U.S.C. § 815(c), after his employment was terminated.

MSHA conducted an investigation, pursuant to Section
105(c) and issued a determination letter to Oesau, dated May 23, 2019,
stating that “MSHA does not believe that there is sufficient evidence to
establish, by a preponderance of the evidence that a violation of Section
105(c) occurred.”

On June 14, 2019, Oesau timely filed a Complaint with the
Federal Mine Safety and Health Review Commission, under Section 105(c)(3).

After receiving an Order to Show Cause, Rogers Group filed
an Answer to the Complaint on October 30, 2019.

The presiding administrative law judge has authority to
hear this case and issue a decision regarding this case pursuant to
Section 105 of the Mine Act, 30 U.S.C. § 815.

II.          
FINDINGS OF FACT

A.     Background

Respondent Rogers Group, Inc.
operates the Greenbrier Quarry (“Greenbrier” or “mine”), a sandstone open-pit
quarry in Greenbrier, Arkansas. Jt. Stip. 1; Tr. II.12–13. The mine has approximately
9–10 employees. See Tr. I. 100, 190, 276.

Complainant Oesau worked for Rogers
Group from March 2012 until March 2019. Respondent’s Post–Hearing Br. at 4; Jt.
Stip. 8. He was employed as a light duty mechanic, and was responsible for performing
preventative maintenance on equipment. Tr. I. 200–01, 278. Oesau is not a
certified mechanic. Tr. I. 197. In addition to preventative maintenance, he
also worked as a backup equipment operator and performed upkeep, housekeeping,
and landscaping duties as needed. Tr. I. 201. Oesau worked at Greenbrier, but
also rotated to three other Rogers Group locations: El Paso, Cabot, and Conway
County. Tr. I. 129. Because he worked at numerous locations and was responsible
for a variety of tasks, Oesau’s schedule varied each day, but he generally
worked at Greenbrier a couple of days per week. Tr. I. 134, 206–07.  

Prior to March 2018, Oesau’s direct
supervisor was the former Greenbrier plant manager. [3]
Tr. I. 208; Tr. II. 111. According to Rogers Group’s western division vice president,
that former manager had poor attention to detail and poor safety results, and
left the company because he failed a drug screen. Tr. I. 111–12. Following the
former Greenbrier manager’s departure, the Cabot location’s plant manager
became Oesau’s direct supervisor. Tr. I. 206, 208.

Respondent promoted a management
trainee from its El Paso location to fill the Greenbrier plant manager position
in March 2018. Tr. I. 273; Tr. II. 109. Relevant to this case, he is a Black person
originally from Botswana. Oesau described his relationship with this plant
manager as “fine,” and said that the only issues the two of them ever had
concerned safety. Tr. I. 135–36, 188. The plant manager said that Oesau came to
him with safety concerns “infrequently.” Tr. I. 317. This case largely centers on
the relationship between Oesau and the Greenbrier plant manager.

At various times prior to his
termination, Oesau submitted a number of safety complaints to Rogers Group
management, both orally and in writing. See Tr. I. 140–41. At one point,
he began collecting safety complaints from other miners. Tr. I. 140–41. At that
time, allegations surfaced that suggested Oesau had, on multiple occasions, used
racially derogatory, offensive language to refer to the Greenbrier plant
manager. Tr. III. 99–102.

As set forth in more detail below, Rogers
Group investigated both Oesau’s safety concerns and the claim that he had
uttered racial slurs in the workplace. Respondent determined that the employees
at Greenbrier did not have any outstanding or unaddressed safety concerns and confirmed
that multiple miners had heard Oesau use offensive, racist language and that
Oesau was intent on getting the manager fired. Oesau was thereafter terminated
for violating the company’s No Harassment Policy.

At the hearing, Oesau asserted his
belief that he was in fact “terminated for filing safety issues against” the
plant manager. Tr. I. 127. He claimed that he never made any sort of race-based
comments about the plant manager or any other coworkers. Tr. I.185–87, 269.

B.     Oesau’s
Safety Complaints

At hearing, Oesau testified about a
number of safety concerns he had regarding the Greenbrier Quarry. He claimed
that the plant manager was always in a hurry to get the operation moving faster
and was content with only partially fixing things so that equipment could keep
running. See, e.g. Tr. 190.

Oesau testified about specific events,
practices, and pieces of equipment that he felt posed safety hazards at
Greenbrier. [4]
He first testified about a drop-axel water truck, which he and another mechanic
had previously tagged out of operation because it was under construction and
had a suspension issue. Tr. I. 127–29, 215. He claimed that the miner he found
operating the truck told him that the plant manager authorized the removal of
the tags from the truck. Tr. I. 127. The plant manager denied directing anyone
to remove a tag. Tr. I. 303; Tr. III. 75, 81. On cross-examination, Oesau
confirmed that an outside mechanic had examined the truck with the other
Greenbrier mechanic while Oesau was off-site. Tr. I. 215–16. The truck operator
later testified that it was the other Rogers Group mechanic who removed the tag
from the water truck, and that his impression was that the other mechanic
talked to Oesau on the phone before doing so. Tr. II. 253–54.

The second issue Oesau discussed at
hearing concerned a “980H loader” that was “popping in and out of gear.” Tr.

131. Another former Rogers Group employee who operated the loader prior to leaving
     the company testified about this issue as well. Tr. I. 43–44. He said that the
     plant manager encouraged him to run the loader despite the issue, but then clarified
     on cross-examination that the plant manager did not “make” him run it. Tr. I.
132. He also testified that the plant manager had an outside mechanic come out
     to Greenbrier to examine the shifting issue and fix it, but it would sometimes
     act up again after being fixed. Tr. I. 52. Oesau too acknowledged that the
     plant manager had a mechanic come and look at the problem, but said initially that
     as far as he knew, nothing had been done to fix the problem. Tr. I. 132. He
     later contradicted that position and confirmed that the outside mechanic would work
     on the issue, think it was solved and then it would come up again. Tr. I. 224. The
     plant manager testified that they had difficulty replicating the problem when
     outside mechanics came to troubleshoot, but that he took the machine out of
     service when the issue persisted. Tr. I. 295; Tr. III. 92–93.

Oesau also testified about his
concerns with the way in which material was dumped off the high wall and onto a
pile. Tr. 132–33. He suggested that dumping material off the side of a high
wall that has never been driven on or packed posed a hazard because of its
inability to support the weight of the equipment being driven on it. See
Tr. I. 133. He further implied that operators were dumping too close to the
high wall. See Tr. I. 133–134. Oesau was not present at the mine when
this occurred. Tr. I. 228. When asked about this issue, the Greenbrier plant
manager acknowledged that an operator had raised this practice as a concern and
stated that they went to look at the area and came up with a solution to allow
the operator to safely approach it. Tr. I. 294–95.

Another safety issue Oesau raised was
an electrocution that occurred at Greenbrier. Two months after being
electrocuted on the job, the affected miner mentioned the incident to Oesau. Tr.
I. 138. Oesau then told his supervisor, the manager at the Cabot location, who
had not previously heard about the incident. Tr. I. 138–39. The Greenbrier
plant manager asserted that though he did not communicate with the Cabot
manager about the incident, he did report it to upper management shortly after
it happened. Tr. I. 349, 353.

Oesau also testified about a haul
truck at the mine that had a broken seat. Tr. I. 139–40. He said two miners at
Greenbrier came to him with the problem, and the three of them went to the
Greenbrier plant manager to discuss it. Tr. I. 139. According to Oesau, the
plant manager said “it’ll be alright,” and one of the miners then went on
driving the truck despite the broken seat. Tr. I. 140. The plant manager testified
that the seat normally allows an operator to adjust how the seat “floats”
depending on work conditions and other factors, and the issue was that the seat
had not been adjusting properly. Tr. III. 90. He also said that he made sure
the operator was comfortable driving the truck, and that he ordered a
replacement seat. Tr. III. 90. Before the replacement seat arrived, the
operator came back to the plant manager and reported that he was no longer
comfortable operating the truck. Tr. III. 90. The plant manager said that
another miner then operated the truck until the new seat arrived since the
faulty seat still performed for that miner’s weight class. Tr. III. 90.

At the hearing, Oesau further
testified that he had concerns about flat struts in the 325 haul truck, the
same truck that had a broken seat. Tr. I. 147–48. Oesau reported that the
condition was the result of the truck being overloaded. Ex. 4, p. 1. However, the
plant manager testified that this could not be the case, since a front strut
was at issue, which would indicate speeding around a curve rather than overloading.
Tr. III. 146. Oesau called in an outside mechanic to fill up the struts, and
the plant manager did not interfere with getting that work done. Tr. I. 227–28.

Oesau complained about a parking
brake issue in the haul truck, too. Tr. I. 225; Ex. 4, p. 3. The truck’s brake
pads were replaced, but Oesau said the outside mechanic who replaced the pads
said that the rotor was warped and also needed to be replaced. Tr. I. 226–27;
Ex. 4, p. 3. According to Oesau, the plant manager did not allow the mechanic
to put in a new rotor. Tr. I. 226–27. The plant manager testified that the outside
mechanic came several times to work on the brakes. Tr. III. 85–86. Over the
course of multiple visits, the brake pads were adjusted, the the locking
mechanism was replaced, and the brake pads were replaced. Tr. III. 86. The
plant manager stated that the mechanic recommended the rotors be replaced, too,
since they were causing the brake pads to wear prematurely. Tr. III. 86. However,
because the mechanic confirmed there were no safety implications, the plant manager
decided to wait to replace the rotors. Tr. III. 86. He confirmed that the
mechanic tested the brakes after each visit to ensure that they worked
properly. Tr. III. 86–87.

Next, Oesau testified that a sensor
repair completed on a W–600 loader’s joystick was insufficient to fix its
problems and asserted that the joystick should have been fully replaced. Tr. I.
229; Ex. 4, p. 4. The plant manager testified that he had called the mechanic
in to look at the issue, but since it was a few days before they could get out
there, Oesau looked at the machine before the outside mechanic did. Tr. III.

83. Oesau had ordered a new joystick assembly, but once the outside mechanic
    came out and saw it, that mechanic did not think the entire thing had to be
    replaced. Tr. III. 83–84. For that reason, the plant manager returned the
    joystick Oesau had ordered. Tr. III. 84.

Finally, Oesau alleged that a miner
had not been properly task trained to operate a piece of equipment at the mine.
Tr. I. 230. He did not ask the miner in question or the plant manager about the
training, but said that the two people qualified to do so told Oesau that they
had not task trained the miner yet. Tr. I. 230–31. Oesau believes the Mine
Safety and Health Administration (MSHA) cited Rogers Group for this. Tr. I.

231. The plant manager testified that the miner was task trained on the
     equipment prior to Oesau’s complaint. Tr. III. 96–97. The miner’s training
     records support this assertion. Ex. R–JJ.

After witnessing what he believed
to be numerous safety issues at the mine and feeling that nothing was being
done about them, Oesau went to his direct supervisor, the manager of the Cabot
location, with his concerns. Tr. I. 140. Oesau testified that his supervisor
directed him to compile a written list of his concerns and to get written
statements from other miners at Greenbrier to document their concerns about the
issues. Tr. I. 141. Oesau did this, and assembled a list documenting the haul
truck’s flat struts, broken seat, and faulty brakes, as well as the loader’s
joy stick issue. Ex. C–4, p. 1–4. His document included a statement from one
other miner, who complained about the loader’s joystick, overloaded haul trucks,
and the plant manager’s insistence on continuing operations when lightning is
striking too close to the plant. Id ., p. 5–9.

Complainant’s counsel called four
other former Rogers Group employees to testify about safety issues. Tr. I. 41–123.
One of these employees never worked at the Greenbrier location. Tr. I. 119. All
had some friction in their relationships with the Greenbrier plant manager. While
some of these witnesses testified about safety concerns that Oesau also complained
of, it appeared that they were essentially called to imply a pattern that shows
employees who go over the plant manager’s head to report safety concerns end up
getting fired, just like Oesau. However, none of the four former employees ever
filed discrimination complaints against the company. In large part, they
testified about issues at other mine locations or facts that are otherwise
unrelated to this matter. In the interest of clarity, I have elected not to
summarize their testimony here.

C.     Oesau’s Harassing
Remarks

Respondent maintains that Oesau was
fired for racial harassment in violation of the company’s No Harassment Policy.
In particular, Respondent asserts that he was fired for using racial slurs when
referring to the Greenbrier plant manager—which clearly constitutes racial
harassment under the policy. At hearing, Rogers Group called multiple witnesses
to testify about the comments.

1. Miner
   A

One miner (“Miner A”), who himself
is Black, credibly testified that he heard Oesau make racially offensive
statements on multiple occasions. The first time was in May 2018, when Miner A
had only been at Greenbrier for a few weeks. Tr. II. 264. After a morning safety
meeting, Miner A recalls Oesau say, in reference to the plant manager, “That
black ass nigger monkey. I ain’t doing nothing he tell me to do. He don’t know
nothing he talking about.” [5]
Tr. II. 263–64. About two hours later, Oesau came up to him and apologized, and
Miner A told Oesau to apologize to the plant manager, not him. Tr. II. 265.

A few weeks later, Miner A took a
truck to Oesau to be fixed. Tr. II. 256, 266–68. Miner A testified that he told
Oesau “[the plant manager] told me to bring the truck up here for you to fix
the door,” and that Oesau replied, “I’m not going to fix on that nigger’s
truck.” Tr. II. 257, 267. Feeling bad, Miner A left and fixed the door himself.
Tr. II. 257–58.

The third time, Miner A again
brought a truck to Oesau, this time for an antifreeze leak. Tr. II. 268. Oesau
first said he was busy, and Miner A “waited, and waited, and waited.” Tr. II.

268. When Miner A then said that the plant manager had him come up there to fix
     the issue, Oesau said, “I’m not fixing anything for that nigger,” and Miner A drove
     off. Tr. II. 268.

Miner A did not report the
harassment at first because he did not want Oesau to lose his job. Tr. II. 268.
However, by the third instance, he realized that Oesau really meant what he
said, and felt that Oesau was “too comfortable” using that offensive language—Miner
A “just couldn’t take it” anymore. Tr. II. 263, 268, 272.

When Oesau attempted to collect a
written statement from him about the plant manager allegedly putting miners in
danger, Miner A told Oesau that he did not want to be involved. Tr. II. 258–59.
Because he felt as if Oesau and two other miners were blindsiding the plant
manager by trying to get him fired for things that were not true, Miner A went to
the plant manager to tell him about Oesau’s attempts to get miners to write up safety
complaints. Tr. II. 260–61. At that time, he also told the plant manager about
the racial slurs Oesau had used when referring to him. Tr. II. 261.

2. Miner
   B

A second miner (“Miner B”) testified he heard
Oesau use racial slurs several times. The first instance was before a morning
safety meeting, when Oesau used the “n” word to refer to the plant manager. Tr.
II. 318. Then, in the shop on another morning, Oesau used the slur again. Tr.
II. 319. Miner B told Oesau that that was not “the best thing to be saying”
since they had the plant manager and Miner A, who are both Black, working at
the mine, and added that it was disrespectful to say in front of anybody. Tr.
II. 319. Miner B also testified that Oesau had said “monkey” on three or four
separate occasions, and that he figured Oesau was referring to the plant manager
each time he said it. Tr. II. 320–21.

Miner B did not report the comments right away
because he thought that Oesau might stop using that language. Tr. II. 319. However,
after the second time he heard Oesau use the “n” word in the shop, Miner B
called the plant manager after work to tell him about the racial slurs as well
as Oesau’s attempts to collect safety violations against the plant manager. Tr.
II. 326–28. Regarding the safety violations, Miner B said that another miner had
approached him on behalf of Oesau and told him that Oesau wanted to “get a list
of safety violations to try to go against [the plant manager], to try to get
him fired.” Tr. II. 328. Miner B told the other miner that he was not going to
do that, and testified that he felt it was wrong because the plant manager had never
done anything to put any of the miners at risk. Tr. II. 328–29. Miner B said
the plant manager was “surprised that somebody was trying to go after him” and
told Miner B that he would take care of it. Tr. II. 329–30.

3. Greenbrier
   Plant Manager

The plant manager testified that four miners told
him Oesau was going around collecting safety complaints in an attempt to get
him fired. Tr. I. 323–24. In addition to Miners A and B reporting to him about the
slurs and collection of safety complaints, the plant manager said a third miner
also called him about the safety complaints. Tr. I. 324. The plant manager then
called a fourth miner to see if he knew anything about it. Tr. I. 324. After
hearing from the miners, the plant manager sent an email to his supervisors in
upper management with an attached document detailing the issues. Tr. I. 328. In
pertinent part, the attachment reads as follows:

Information given below is as given to
me by those who took the liberty to inform me in the spirit of confidence and
would like to maintain anonymity:

On Thursday, March 21 st 2019 [6] ,
Ted Oesau came to Greenbrier quarry to perform some PMs on our equipment.
During the course of the day he approached some of my employees individually to
notify them that [the Cabot manager] had instructed him to compile all events
in which I asked/forced them (my employees) to work unsafely or put them in
uncomfortable/hazardous situations. It was mentioned that Ted assured those he
spoke to that he was going to take the information directly to [the division
vice president] to purge me. When Ted approached some individuals they refused
to be a part of his agenda, however, [“Miner C”] continued to persuade
everybody to join him and Ted on this mission. Everyone on the crew except for
[“Miner D”] declined [Miner C]’s attempt. [Miner D] allegedly agreed to join
forces with Ted Oesau and [Miner C].

Friday morning, first employee
approached me to warn me to the situation that was brewing. Throughout the day
on Friday and Saturday the rest of my team called me to warn me of this. . . .

Two of my employees remarked that Ted
had used hateful words against me in the past, calling me a “black monkey” and
a “nigger”. These words were said in front of other employees in my absence.

Ex. R–X, p. 3.

The plant manager also recalled a
conversation he had with Oesau’s supervisor, the Cabot manager, [7]
after Oesau was fired: “he told me that he personally has heard Ted call me a
nigger, previously, and he coached Ted to never use that language ever again during
his employment with Rogers Group.” Tr. I. 334.  

D.     Rogers
Group Investigations

Both before and after the
Greenbrier plant manager sent the email about Oesau’s apparent attempt to get
him fired, Rogers Group upper management conducted investigations into Oesau’s various
safety complaints. The western division vice president testified at hearing
about these investigations. After initially becoming aware of issues between
Oesau and the Greenbrier plant manager in December 2018, he held a meeting in
his office in January 2019. [8]
Tr. II. 36, 114. In that meeting, the division vice president, the Arkansas production
manager, the Greenbrier plant manager, and Oesau met to discuss safety concerns
as well as communication issues between Oesau and the plant manager. Tr. II. 36–37.
At hearing, the division vice president could not remember which safety issues
in particular were discussed at the January meeting. Tr. II. 38.

A second meeting was held in the
division vice president’s office in February 2019. Tr. II. 39. At that meeting,
Oesau claimed that tags were being taken off of a water truck and it was being
operated when it was tagged out. Tr. II. 119–20. After that meeting and after
receiving Oesau’s list of complaints from the Cabot manager, the division vice
president went to Greenbrier to look into the safety issues. Tr. II. 122–25. He
talked through the complaints with the plant manager and went through and
investigated each complaint himself. Tr. II. 125–26.

The division vice president believed
that the issues between Oesau and the plant manager had something to do with
the transition from the old Greenbrier plant manager to the new one—they had
different management styles. Tr. II. 114–15. He testified that, to him, it
seemed that the main problem between them was communication, and that both
Oesau and the plant manager seemed willing to work together going forward after
each meeting in his office. Tr. II. 115–18.

Following the Greenbrier plant
manager’s February 25, 2019 email about Oesau’s offensive statements and
attempts to collect safety complaints about the plant manager, the division
vice president directed the Arkansas area manager [9]
and general manager of central Arkansas operations to begin an investigation. Tr.
II. 131; Ex.13, p. 1. The area manager did not testify, but he did author a
memo which recounts the investigation and the events leading up to it. Ex. R–Y.
It explains that, on March 11, 2019, he and the general manager:

Both traveled to Greenbrier to
interview all hourly employees on site. Each employee was brought into an
individual interview to determine if they had been required to work in an
unsafe manner, to ask how they felt the safety culture was, determine if the
crew had received appropriate training, and to determine if they had been part
of or witnessed anyone participating in derogatory conversation regarding
supervision or coworkers. After having detailed conversations with all personnel
on site it was discovered that 3 employees had witnessed Mr. Oesau calling [the
plant manager] racially slanderous names. It was also found that only [“Miner
E”] felt that there could be a safety issue at Greenbrier, but during
conversation it was also discovered that he had never been asked to or forced
to work in an unsafe manner.

Id ., p. 3. The general manager’s testimony at hearing
was consistent with this. He recounted that he and the area manager went to
Greenbrier unannounced and interviewed employees one at a time. Tr. II. 175–76.
They asked the miners whether they had any safety concerns and if they “had
heard any obscene, or vulgar, or derogatory, or racial type slurs in and around
the operations.” Tr. II. 176. The interviewers did not name Oesau in their
questioning, but the notes they typed up later states that two of the three
miners who had heard racially charged language “offered up, without coercion,
Mr. Oesau’s name.” Tr. II. 176, Ex. R–Z, p. 2.

Two of the witnesses at hearing
were miners that had been questioned in the March 11, 2019 interviews. Miner A
recalled being asked if he had heard anything inappropriate said around the
mine. Tr. II. 271. Without naming Oesau, Miner A told the investigators about
the three instances in which he had heard racially offensive language at
Greenbrier. Tr. II. 271, 291. Miner B testified that when he met with the
investigators, they asked him about the safety culture around the plant, and he
told them that they had no problems with safety. Tr. II. 331. When asked
generally about racial harassment, Miner B told the investigators that Oesau
had been making racial comments. Tr. II. 331.

The investigators did not interview
the plant manager as part of their investigation into Oesau’s offensive
remarks. Tr. I. 328–29. The two interviewers took handwritten notes and later typed
them into a document at the request of Rogers Group’s Health and Safety director.
Tr. II. 176–78.

E.     Oesau’s
Termination

The division vice president reviewed
the results of the investigation with the area manager, and they agreed that
Oesau should be terminated. Tr. II. 137–38. Neither the Greenbrier plant
manager nor the Cabot plant manager was involved in the decision to terminate
Oesau. Tr. II. 137–38, 139–40; Tr. III. 110. Oesau was called into the division
vice president’s office and informed of his termination on March 19, 2019. Tr.
I. 150; Jt. Stip. 8. Oesau estimated that his termination occurred
approximately three weeks after turning in his list of safety issues to his
supervisor. Tr. I. 150.

Oesau filed a 105(c) discrimination
complaint with MSHA on March 26, 2019. Ex. C–1, p. 1. On May 23, 2019, MSHA
notified Oesau that the agency had investigated his complaint and determined
that there was insufficient evidence to support his allegations. Id . p. 6–7.
Oesau then initiated this case on June 14, 2019. Jt. Stip. 11. Testimony and
documentary evidence was presented at a hearing held in Little Rock, Arkansas
on February 18–21, 2020, and the parties thereafter submitted briefs and
replies to the court.

III.          
DISPOSITION

Oesau’s termination is the subject
of this case. He claims that he was fired because he raised concerns about
various safety issues. Rogers Group argues that his safety complaints are not protected
activity because Oesau had no reasonable, good faith belief that his safety
allegations were true. Respondent maintains that it did not terminate Oesau
because he engaged in protected activity, but rather because he violated the
company’s No Harassment Policy by using offensive, racist language on multiple
occasions in front of other employees at work and because he attempted to lure
other employees into a racially-motivated campaign to get the Greenbrier plant manager
fired.

Section 105(c)(1) of the Mine Act
provides that a miner shall not be discharged or otherwise discriminated
against because they have made a complaint regarding an alleged safety or
health violation. 30 U.S.C. § 815(c)(1). Under the traditional Pasula-Robinette
framework, the Commission has held that a miner alleging discrimination
establishes a prima facie case of prohibited discrimination by presenting
evidence sufficient to support a conclusion that (1) the complainant engaged in
protected activity, and (2) the adverse action complained of was motivated in
any part by the protected activity. Jayson Turner v. Nat'l Cement Co. ,
33 FMSHRC 1059, 1064 (May 2011);  Driessen v. Nev. Goldfields, Inc. ,
20 FMSHRC 324, 328 (Apr. 1998);  Sec'y of Labor on behalf of Pasula v.
Consolidation Coal Co., 2  FMSHRC 2786, 2799 (Oct. 1980),  rev'd
on other grounds sub nom. Consolidation Coal Co. v. Marshall , 663 F.2d
1211 (3d Cir. 1981);  Sec'y of Labor on behalf of Robinette v. United
Castle Coal Co. , 3 FMSHRC 805, 817–18 (Apr. 1981).

If a miner establishes a prima facie
case, the operator may rebut that case “by showing either that no protected
activity occurred or that the adverse action was in no part motivated by the
protected activity.” Turner , 33 FMSHRC at 1064. If the operator cannot
rebut the prima facie case, it may nevertheless defend affirmatively by proving
by a preponderance of the evidence that, although part of its motivation was
unlawful, the adverse action was also motivated by the miner’s unprotected
activity and it would have taken the adverse action against the miner
for the unprotected activity alone. Id .; Pasula , 2 FMSHRC at 2799–2800.

A.     Prima
Facie Case

It bears repeating that to make out
a prima facie case of discrimination, a complainant need only present “evidence
sufficient to support a conclusion that the individual engaged in
protected activity and that the adverse action complained of was motivated in
any part by that activity.” Driessen , 20 FMSHRC at 328 (emphasis added).
“This burden is lower than the ultimate burden of persuasion, which the
complainant must sustain as to the overall question of whether section
105(c)(1) has been violated.” Turner , 33 FMSHRC at 1065. For the reasons
that follow, I find that Oesau has met this initial, low burden and established
a prima facie case of discrimination.

1. Protected
   Activity

Complainants bear the burden of
establishing protected activity. Pasula , 2 FMSHRC at 2797–2800;  Sec’y
of Labor on behalf of Riordan v. Knox Creek Coal Corp. , 38 FMSHRC 1914,
1920–21 (2016). A miner has engaged in protected activity if they (1) have “filed
or made a complaint under or related to this Act, including a complaint . . . of
an alleged danger or safety or health violation;” (2) are “the subject of
medical evaluations and potential transfer under a standard published pursuant
to section 101;” (3) have “instituted or caused to be instituted any proceeding
under or related to this Act or has testified or is about to testify in any
such proceeding;” or (4) have “exercised on behalf of himself or others . . . any
statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1).

It is undisputed that Oesau raised
numerous safety concerns while employed at Rogers Group. Though Respondent does
not dispute the existence of Oesau’s safety complaints, it has attempted to
show that Oesau’s complaints were made in bad faith and are thus unprotected by
the Mine Act. See Respondent’s Post-Hearing Brief (Resp. Br.) at 40–62. Rogers
Group argues that Oesau “ignored open and obvious information readily available
to him showing that there was no hazard.” Resp. Br. at 41. Respondent has also
endeavored to undermine Oesau’s safety concerns by highlighting that he is not
a certified mechanic. Id .

Unquestionably, raising safety
concerns at work constitutes “protected activity” within the ambit of section
105(c). See, e.g. , Riordan , 38 FMSHRC at 1922 (“ Raising safety concerns is paradigmatic ‘protected
activity’ within the meaning of section 105(c)(2).”). For the purpose of
this decision, it is immaterial whether the safety hazards Oesau feared
actually existed. Oesau had no duty to avail himself of information that could
have dispelled his concerns prior to submitting his complaints, and thus his
failure to do so does not amount to bad faith. Oesau has provided sufficient
evidence to show that he had legitimate concerns about various practices and
equipment at Greenbrier and that he communicated these concerns to his
superiors. Ex. C–4, p. 1–4; see Tr. I. 140–41, 145–49. Accordingly, I find
that Oesau engaged in protected activity and has satisfied the first element of
the prima facie case.

2. Adverse
   Action Motivated by Protected Activity

The Commission has defined “adverse
action” as “an action of commission or omission by the operator subjecting the
affected miner to discipline or a detriment in his employment relationship. Sec’y
on behalf of Pendley v. Highland Mining Co. , 34 FMSHRC 1919, 1930 (Aug.
2012). The question of whether an employer’s action qualifies as “adverse” is
thus decided on a case by case basis. Sec’y of Labor ex. rel. Jenkins v.
Hecla-Day Mines Corp. , 6 FMSHRC 1842, 1848 n.2 (Aug. 1984).

Oesau alleged in his initial MSHA
complaint and briefly mentioned at hearing that he was denied a raise in early
February 2019. Ex. C–1, Tr. I. 268. This allegation was scarcely discussed at hearing
and Oesau has failed to proffer any evidence that establishes he was ever
denied a raise. There is no dispute, however, that Respondent discharged Oesau on
March 14, 2019. Jt. Stip. 8. This indisputably constitutes adverse action, as “[d]ischarge
is perhaps the clearest form of adverse action prohibited by the plain language
of the Mine Act.” Driessen , 20 FMSHRC at 329. Having established both
protected activity and an adverse action, Oesau must demonstrate that there is
evidence sufficient to support an inference of a causal nexus: that his
protected activity motivated Rogers Group to terminate his employment.

A miner need not provide direct
evidence of an operator’s discriminatory motive, but may provide
“circumstantial evidence . . . and reasonable inferences drawn therefrom may be
used to sustain a prima facie case.” Turner , 33 FMSHRC at 1066–67
(quoting Bradley v. Belva Coal Co. , 4 FMSHRC 982, 992 (June 1982)). In
evaluating whether a causal connection exists between the protected activity
and the adverse action, the Commission looks to four factors: “(1) the mine
operator's knowledge of the protected activity; (2) the mine operator's
hostility or ‘animus’ toward the protected activity; (3) the timing of the
adverse action in relation to the protected activity; and (4) the mine
operator's disparate treatment of the miner.”  Cumberland River Coal Co. ,
712 F.3d at 318;  see also Sec'y of Labor on behalf of Chacon v. Phelps
Dodge Corp. , 3 FMSHRC 2508, 2510–12 (Nov. 1981),  rev'd on other
grounds , 709 F.2d 86 (D.C. Cir. 1983). I will examine these
factors in turn.

Knowledge of Protected Activity

Rogers Group does not dispute that
Oesau submitted safety complaints. Multiple miners, including Oesau, testified
about the way in which Oesau complained to his supervisor about various issues
he had with situations and equipment at the mine. As discussed above, I do not agree
with Respondent that Oesau’s allegations were all in bad faith and thus not
protected activity. I find that Respondent had knowledge of Oesau’s protected
activity.

Animus or Hostility Toward the Protected Activity

Oesau argues that an email sent by
the Rogers Group Arkansas area manager to the division vice president definitively
establishes Respondent’s animus toward his complaints. Complainant’s Post-Hearing
Brief at 15–16. With regard to Oesau’s alleged racially charged derogatory
comments the email states that,

[b]y itself this conduct could be
forgivable, with a last chance, if there was acknowledgement from Ted and
remorse regarding the conduct. The problem with the conduct is that it is
aggravated by Ted’s concerted attempt to organize the labor force. Again, if
this concerted activity was isolated and the only issue there could be
consideration given. Given the circumstance that both acts indeed occurred, the
likelihood of being able to salvage Ted’s job is slim to none.

Ex. C–13, p. 2. After considering all of the evidence and
testimony, I do not agree with Oesau’s assertion. However, for the purpose of
establishing a prima facie case, I will accept that this email is at least
sufficient to support an inference that there was some animus towards Oesau’s
collection of safety complaints from other miners, which is related to his
protected activity.

Timing

Oesau was terminated within a
matter of weeks after he submitted a list of safety complaints to his
supervisor. See Tr. I. 150. The Commission does not apply “hard and fast
criteria in determining coincidence in time between protected activity and
subsequent adverse action when assessing an illegal motive.” Hicks v. Cobra
Mining, Inc. , 13 FMSHRC 523, 531 (Apr. 1991). Given the objectively short
amount of time between the protected activity and the adverse action, I find
that a coincidence in time exists in this case.

Disparate Treatment

Oesau has not provided any evidence
of disparate treatment. “Typical forms of disparate treatment are encountered
where employees guilty of the same, or more serious, offenses than the alleged
discriminatee escape the disciplinary fate which befalls the latter.” Chacon, 3
FMSHRC at 2512. While the company has not experienced any other allegations of
racial harassment, it had previously dealt with a sexual harassment allegation.
Tr. I. 141–42. In that instance, as in this one, Rogers Group conducted an
investigation, confirmed the allegations were true, and terminated the employee
for violating the No Harassment Policy. Tr. I. 142.

Because Oesau’s experience was
consistent with that of the other employee who violated the policy, I find that
he was not subject to disparate treatment.

Conclusion

Bearing in mind that the prima
facie burden is minimal, I find, in light of the above factors, that Oesau has
put forth evidence that “ could support an inference” that the adverse
action was motivated, at least in part, by his protected activity. Turner ,
33 FMSHRC at 1066 (citation omitted). As discussed below, however, I find that
Rogers Group has successfully rebutted Oesau’s prima facie case.

B.     Rebuttal

The operator may rebut the miner's
prima facie case by showing either that no protected activity occurred or that
the adverse action was in no part motivated by the protected activity. Turner ,
33 FMSHRC at 1064. As discussed above, Rogers Group argues that no protected
activity occurred because Oesau made his safety complaints in bad faith. Because
I disagree, and find that protected activity has occurred, I turn to
Respondent’s additional argument that Oesau’s termination was in no part
motivated by his protected activity.

Respondent asserts that “the
evidence firmly establishes that Oesau used racist language at work, including
highly offensive words and phrases that any person would recognize as bigoted, potentially
threatening, and unacceptable in any context.” Resp. Br. at 65. I agree. The
language Oesau used is a flagrant violation of Rogers Group’s No Harassment
Policy, which explicitly lists “racial comments, slurs, [and] off-color jokes” as
examples of harassment. Ex. R–B, p. 1. The policy also states that, following
an investigation, “[i]f harassment is found, disciplinary action, up to and
including termination, will be taken against the harassing employee.” Id .,
p. 3.

Through the testimony of multiple
witnesses, Rogers Group established that Oesau made race-based, offensive
comments at Greenbrier when referring to the Black plant manager. The evidence
also shows that Oesau endeavored to get the plant manager fired by attempting
to collect safety complaints about the plant manager. Oesau’s counsel points to
the area manager’s email referencing “Ted’s concerted activity to organizer the
labor force” as “smoking gun” evidence of discrimination under the Mine Act. Tr.
I. 19; Ex. 13, p. 2. However, I find that the email, especially when analyzed
in light of the extensive testimony on this issue, actually just shows that
Rogers Group management was concerned about both Oesau’s racist comments and
his racist motivation likely behind the attempt to get the plant manager fired.

The evidence is clear: Rogers Group
fired Complainant for racial harassment. Respondent’s decision to terminate
Oesau was not motivated by his protected activity, but rather by his violation
of the No Harassment Policy and Rogers Group’s interest in enforcing that
policy and ensuring that employees have a workplace free of harassment. I find
that Rogers group has successfully rebutted Oesau’s prima facie case.

C.     Affirmative
Defense

If an employer cannot rebut the
prima facie case, “it nevertheless may defend affirmatively by proving that is
also was motivated by the miner’s unprotected activity and would have taken the
adverse action for the unprotected activity alone.” Turner , 33 FMSHRC at
1064. In asserting this defense, “[i]t is not sufficient for the employer to
show that the miner deserved to have been fired for engaging in the unprotected
activity . . . . The employer must show that [it] did in fact consider the
employee deserving of discipline for engaging in the unprotected activity alone
and that [it]  would  have disciplined him in any event.” Pasula,  2
FMSHRC at 2800.

Ample evidence shows that Rogers
Group was motivated to discipline Oesau for the harassing remarks he made at
work. The company’s harassment policy, its internal emails admitted into
evidence, its past discharge of a harassing employee, and testimony of its
management officials make this clear. In fact, when asked by the court about
why the company elected to “go straight to termination, as opposed to some
other discipline,” Rogers Group’s director of human resources confirmed that it
was “the egregious nature of the comments that were made” that merited going
straight to termination. Tr. III. 209.

As discussed above, I find that
Rogers Group terminated Oesau based on unprotected activities alone. However, even
assuming that Oesau’s protected activity partially motivated Rogers Group’s
decision to terminate him, Respondent still did not violate section 105(c) of
the Mine Act because it has proven that it would have terminated Oesau for his
harassing conduct alone. Rogers Group has thus proven its affirmative defense.

IV.          
ORDER

Accordingly, it is ORDERED that
the complaint of discrimination brought by Theodore Oesau is hereby DISMISSED .

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (Email [10] )

Chris W. Burks, WH Law, PLLC, [email protected]

Margaret S. Lopez, Ogletree, Deakins, Nash, Smoak, &
Stewart, P.C., [email protected]

J. Carin Burford, Ogletree, Deakins, Nash, Smoak, & Stewart,
P.C., [email protected]

[1] In this decision, the joint stipulations, transcript,
the Complainant’s exhibits, and Respondent’s exhibits are abbreviated as “Jt.
Stip.,” “Tr.,” “Ex. C–#,” and “Ex. R–#,” respectively. References to the
transcript include numerals I, II, or III to denote the volume of the
transcript referenced, since each day’s transcript is independently paginated.

[2] A fourteenth stipulation concerning the parties’
agreement regarding admissibility of exhibits has been excluded due to a
dispute regarding the admissibility of Exhibits C–11 and C–13, which arose at
hearing.

[3] Other than Complainant Theodore Oesau, the names of individuals
who testified at the hearing or were named in testimony, briefs, or exhibits
are not disclosed in this decision pursuant to an approved Protective Order
issued on January 30, 2020. Tr. II. 8.

[4] These safety issues are recounted here in the order
in which they arose in Oesau’s testimony. The exact dates of specific events
are not all well–established by witness testimony. Such dates are not necessary
to determining the outcome of this case.

[5] Reluctantly, I recount the racial slurs articulated at
the hearing in order to provide an accurate, uncensored account of the
testimony.

[6] This date is incorrect. The document should say
February 21, 2019. The email this attachment accompanied is dated February 25,
2019, and the Thursday preceding the date of the email was February 21, 2019. The
plant manager also acknowledged the typo at hearing. See Tr. III. 109.

[7] Unfortunately, Oesau’s direct supervisor was not
called to testify at the hearing.

[8] According to a timeline submitted by Complainant,
this meeting occurred in either late November or early December, not in January.
Ex. C–6, p. 2. Though the date of the meeting is not established, this
discrepancy does not impact the outcome of this case.

[9] This individual was also referred to at hearing as
the production manager for Arkansas. Tr. II. 172.

[10]
For the foreseeable future, Federal Mine Safety and Health Review Commission
(FMSHRC) notices, decisions, and orders will be sent only through electronic
mail. Because FMSHRC will not be monitoring incoming physical mail or faxes,
parties are encouraged to submit all filings through the agency’s electronic
filing system. If you are not able to file through our electronic filing
system, please send an email copy and we will file it for you.