Falkirk Mining Company

Plain-English summary

Harold Holtz, a coal hauler operator at Falkirk Mining Company, claimed that the company put him on six months of probation in retaliation for his safety complaints and other protected activity under section 105(c) of the Mine Act. The judge found that Holtz had engaged in protected activity, but that the company’s actions were motivated by concerns about his conduct and safety, not by retaliation. The judge also found that the complaint was brought in good faith and denied Falkirk’s request for attorney fees and costs. The complaint was dismissed.

Decision snapshot

• Cited standards: 30 U.S.C. § 815(c); 29 C.F.R. § 2700.1
• Outcome: The discrimination complaint was dismissed, and the motion for attorney fees and costs was denied.
• Key point: Protected safety activity is covered by section 105(c), but the Mine Act does not protect abusive or intimidating conduct, and the evidence did not show that Falkirk’s discipline was motivated by Holtz’s protected activity.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                     September 20, 1996

HAROLD HOLTZ, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. CENT 96-7-D
v. : DENV CD 95-13
:
FALKIRK MINING COMPANY, : Mine ID 32-00491
Respondent :

                           DECISION

Appearances: Steven L. Latham, Esq., Bismarck, North Dakota for
Complainant;
Charles S. Miller Jr., Esq., Fleck, Mather, &
Strutz, Bismarck, North Dakota for Respondent.

Before: Judge Fauver

 This is a complaint under § 105(c) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., alleging discrimination on February 23, 1995, when
Respondent notified Complainant that he was being placed on
probation for six months because of an incident with its safety
manager at a bar.

 Holtz contends that the safety manager, Archie Gilliss, gave

a false and exaggerated account of the incident as a means of
retaliating against him because of his protected activities under
§ 105(c). He further contends that this was part of a pattern of
false and exaggerated reports by Gilliss against him in
retaliation of his protected activities. As evidence of a
pattern, he cites two prior adverse actions in 1993 and 1994.
Falkirk Mining denies any discrimination or hostility toward
Holtz’ protected activities and contends that the prior adverse
actions are barred by the statute of limitations.

 Having considered the hearing evidence and the record as a

whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the following Findings of Fact
and further findings in the Discussion below:

                        FINDING OF FACT

 1. On December 17, 1990, Harold Holtz was involved in a

fatal accident at the Falkirk Mine, a surface coal mine operated

by Respondent Falkirk Mining Company in Bismarck, North Dakota.
Falkirk is a subsidiary of the North American Coal Corporation.
The mine produces coal for sale or use in or affecting interstate
commerce.

 2. The accident involved a collision between a large coal

hauler operated by Holtz and a scraper. The operator of the
scraper was killed. Holtz suffered shoulder injuries that
required surgery and rehabilitation of several months.

 3. Holtz had a substantial disagreement with management

concerning the cause of the accident and safety rules he believed
were necessary to prevent future accidents. Management did not
find Holtz at fault in the accident. The disagreement arose from
Holtz’ belief that management was covering up its responsibility
for conditions that led to the accident.

 4. MSHA issued two citations on December 19, 1990, and a

third on January 22, 1991, based on its investigation of the
accident.

 5. Holtz disagreed with MSHA’s investigation report as well

as mine management’s account of the accident. He frequently
expressed his complaints to management, especially to Archie
Gilliss, the mine safety manager. Gilliss advised him to report
his concerns to MSHA if he was not satisfied with the
investigation or had more information to assist the
investigation. Holtz had many contacts with MSHA concerning its
investigation and its preparation for a hearing on its citations.
Holtz was expected to testify at the hearing.

 6. The citations were settled on September 22, 1992, with a

90% reduction in penalties and a major reduction in the charges.
Holtz was very upset over the settlement and felt that it was a
white-washing of serious violations. On a number of occasions,
he expressed his opinion to persons at the mine and others,
including MSHA officials, that there was collusion between
Falkirk’s management and MSHA, and that mine management and MSHA
had engaged in a cover-up of serious safety violations.

 7. On February 24, 1993, more than two years after the

accident, MSHA inspected the Falkirk Mine following a complaint
from an unidentified caller. During the inspection, in which no
violations were found, Holtz asked to talk to the inspectors.
Holtz met with Inspectors Larry Keller and James Beam and again
complained about the investigation of the 1990 accident and
settlement in 1992. This was not a new subject for the MSHA
inspectors. Holtz had voiced the same complaints to Keller and
other MSHA officials on a number of occasions. Holtz testified

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that he had 8-10 conversations with at least three different MSHA
officials prior to the February 1993 inspection.

 8. Keller was concerned about Holtz’ emotional reaction to

the 1990 accident and investigation and Holtz’ statement to him
that he continued to have disturbing flashbacks when ever he
drove by the scene of the accident. Keller was concerned that a
person driving a coal hauler carrying 300 tons of coal at 55
m.p.h. needed to be concentrating 100% on what he was doing in
order to operate the equipment safely.

 9. At the conclusion of the February 1993 inspection,

Keller talked to Archie Gilliss, mine safety manager, about
Holtz’ continued emotional reaction to the 1990 accident and
investigation, his flashbacks, and how his emotional state might
affect his ability to concentrate fully on operating the large
coal hauler. Keller noted that the company had an employee
assistance program and asked Gilliss if the company could provide
Holtz some assistance, meaning professional counseling. Gilliss
prepared a memorandum to his files concerning his discussion with
Keller and reported the matter to mine management. After
consultation with legal counsel, management decided to take Holtz
off the equipment and place him on paid medical leave for
psychological evaluation. The decision was a collective one and
involved Falkirk’s President, Falkirk’s Manager of Human
September 11, 1996 Resources, Holtz’ line supervisors, and
Gilliss.

 10. Holtz was very upset with Falkirk’s decision to require

him to undergo psychological evaluation. He filed a § 105(c)
discrimination complaint against Falkirk on March 22, 1993,
contending that Gilliss lied about Keller’s comments in order to
retaliate against Holtz’ protected activities.

 11. MSHA investigated Holtz’ discrimination complaint and

determined there had been no violation of § 105(c). After
receiving MSHA’s decision, around November 1, 1993, Holtz elected
not to pursue his complaint before the Review Commission.

 12. In this proceeding, which involves a later

discrimination complaint (in 1995), Holtz contends that Gilliss
demonstrated a pattern of hostility toward Holtz’ protected
activities. As part of the pattern, Holtz contends, Gilliss lied
to Falkirk’s management concerning the extent of Keller’s remarks
to Gilliss following the February 1993 inspection. Holtz
testified that he talked to Keller and that Keller had denied
stating that he considered Holtz to be a safety risk to himself
and his fellow miners or a “time bomb” ready to go off, as
Gilliss had reported to management. Keller testified that he

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expressed to Gilliss his concerns about Holtz’ inability to put
the accident behind him and the possibility that he was not able
to maintain his concentration while operating the large coal
hauler. Keller also testified that he mentioned Holtz’
flashbacks and asked Gilliss whether there was something that
Falkirk could do in terms of providing Holtz with counseling. In
large part, Keller confirmed Gilliss’ account of the
conversation, although Gilliss may have exaggerated some of
Keller’s statements.

 13. In March 1993, Holtz went on medical leave with full

pay and benefits. Dr. Tello, the physician staffing Falkirk’s
Employee Assistance Program, referred him to Dr. Peterson, a
clinical psychologist who was not connected with Falkirk. Dr.
Peterson saw Gilliss and also had him see a psychiatrist, Dr.
Thakor, who also was not connected with Falkirk. Following those
consultations, Dr. Peterson reported to Falkirk that Holtz had
unresolved psychological conflicts as a result of the 1990
accident and strongly recommended that Holtz receive counseling
from either a psychiatrist or a psychologist. Dr. Peterson noted
that there was a significant ongoing conflict between Holtz and
the mine staff. He described Holtz as being a “worrisome, tense
individual who is likely to be rigid and stubborn in
relationships.” He also reported that Holtz “is suspicious of
others and has difficulty trusting.” At the same time, however,
Dr. Peterson reported that he did not consider Holtz to be a
danger to himself or others in carrying out his job
responsibilities.

 14. Following Dr. Peterson’s report, Holtz was returned to

duty as a coal hauler operator, but was required to attend
further counseling as recommended by Dr. Peterson. The
additional counseling was performed by Dr. Hanlon, who was not
connected with Falkirk. Although this situation was somewhat
unique, Falkirk has taken similar actions with regard to other
employees. In one instance, Falkirk required a dragline operator
who was having emotional problems to obtain assistance and in
other instances had referred personnel to its EAP program when
there were unexplained problems with their job performance.

 15. After returning to duty, Holtz’ relationship with mine

management continued to be poor. Holtz’ immediate supervisor,
Mr. Davison, wrote in Holtz’ employee evaluation on October 7,
1993, the following:

Harold’s basic attitude toward his job as a coal hauler is
satisfactory. It is also satisfactory toward his
supervisor. However, with respect of his attitude toward
the company as a whole and particularly toward members of

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 management, it is much below average. Much if not all is
 manifest from his involvement in the fatal accident of
 12/17/90 and a subsequent evaluation this summer. There
 have been times when Harold was emotionally upset that I
 believe Harold was not 100% committed to his primary job as
 Coal Hauler Operator. I feel Harold needs to put these
 incidents behind him emotionally and move on with his job
 and his future at Falkirk. [Ex. C-4]

 16. On August 3, 1994, Gilliss had an incident with Holtz

in the shift change area at the mine. Gilliss reported to
Falkirk’s management that Holtz asked him, “Have you talked to
your high ranking MSHA official buddy that you are in cahoots
with lately?” Gilliss stated in his report that when he asked
Holtz what he meant, Holtz referred to Inspector Keller and the
conversation between Keller and Gilliss that precipitated Holtz
being sent for psychological evaluation. Gilliss also reported
that when Holtz began talking about this subject, Holtz got red-
faced and angrier and angrier, pointed his finger at Gilliss, and
with a very hard and glaring stare, stated “I’ll see you in
court.” Tr. 197-200.

 17. Based upon Gilliss’ report, management gave a written

warning to Holtz on August 11, 1994. The written warning
concluded:

 Your comments and behavior towards Mr. Gilliss are totally
 uncalled for and is unacceptable behavior by one employee
 towards another at the Falkirk Mine, thus, any similar
 behavior in the future will result in stronger discipline,
 up to, and including termination.

 You have been previously advised of your right to pursue
 legal action or avail yourself to the appropriate state or
 federal authorities if a problem exists but when you sue
 [sic] this as a device to threaten and intimidate other
 employees; this behavior is unacceptable and subject to
 disciplinary action. [Ex. C-5]

 18. On the evening of February 21, 1995, Holtz happened to

come across Gilliss in a bar at the Comfort Inn motel in
Bismarck, North Dakota, about fifty miles from the Falkirk Mine.
During “happy hour,” Gilliss was in the bar with his brother-in-
law and several of his family members who were staying at the
motel. Holtz was in the bar with his wife and another couple.
When Gilliss came into the bar, his party happened to take a
table next to Holtz’ table. Gilliss later reported to management
that Holtz glared at him from Holtz’ table and that at one point
Holtz stood by Gilliss’ table for several minutes and stared at

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Gilliss without talking and, finally, when Gilliss acknowledged
his presence (by saying, “Hello, Harold”) Holtz simply walked
away without comment. Gilliss reported to management he felt
threatened by this conduct, particularly given the setting in
which it took place and not knowing what might happen next.

 19. Holtz testified that he simply stood a few moments at

Gilliss’ table for an opportunity to greet him, and then left.
He denied he did so in a threatening or intimidating manner.

 20. Several persons testified about the incident in the

Comfort Inn in addition to Gilliss and Holtz: Gilliss’ brother-
in-law David Laber, Holtz’ wife, and one of the individuals who
was with the Holtz party, Mr. Robertson. Although there were
some discrepancies in the accounts given by these witnesses as to
exactly where persons were situated at various points during the
evening and other like details, these discrepancies were not
unusual. Considering the testimony of these witnesses along with
the testimony of Gilliss and Holtz, I find that Holtz did pause
at the table at which Gilliss was seated and did stare at Gilliss
without speaking. Gilliss’ report to management stated that
Holtz stood near his table for “several minutes.” I find that
this was an exaggeration and that Holtz stood at the table about
30 seconds.

 21. As a result of Gilliss’ report to management,

management made the decision, after consultation with legal
counsel, to place Holtz on six months probation. The written
notice of probation was given on February 23, 1995. The notice
referred to the prior warning on August 11, 1994, and stated
that he was being placed on probation because he had engaged in
further objectionable conduct of an intimidating nature. Ex. C-6.

 22. Holtz filed a second § 105(c) discrimination complaint

against Falkirk, dated March 24, 1995, which is the subject of
this proceeding. The complaint was investigated by MSHA, which
concluded that there had been no violation of § 105(c).

  23. During probation, Holtz continued working but was

denied a wage increase and a yearly bonus paid to other
employees. The wage increase was given as of the date of his
completion of probation and the bonus for the prior year was then
paid.

  24. At the time of the hearing, May 1996, Holtz was

employed at the Falkirk Mine and there had been no further
incidents in his employment relationship. Management had
installed traffic safety rules and Holtz was performing his job
well.

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         DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

  Section 105(c) 1 of the Act protects miners and others from

discrimination because of the exercise of rights under the Act,
including making safety complaints to the mine operator or to
MSHA.

 A miner alleging discrimination under § 105(c) establishes a

prima facie case of discrimination by proving that he or she
engaged in protected activity and the adverse action complained
of was motivated in part by that activity. Secretary on behalf
of Pasula v. Consolidation Coal Co ., 2 FMSHRC 2786, 2797-800
(1980), rev’d on other grounds, sub nom . Consolidation Coal Co .
v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co . 3 FMSHRC 803,817-18 (1981).
The operator may rebut the prima facie case by showing either
that no protected activity occurred or that the adverse action
was in no part motivated by protected activity. If the operator
cannot rebut the prima facie case in this manner, it nevertheless
may defend affirmatively by proving that it is also was motivated
by the miner’s unprotected activity and would have taken the
adverse action for the unprotected activity alone. Pasula, 2
FMSHRC at 2799-2800; Robinette, 3 FMSHRC at 817-18; see also
Eastern Assoc. Coal Corp . v. FMSHRC, 813 F.2d 639, 642 (4th Cir.
1987).

 As the Commission and Courts have repeatedly noted, direct

evidence of discriminatory motive is rare. Usually
discrimination can be proven only by circumstantial evidence upon
which the trier of fact draws an inference regarding the
employer’s motivation. Secretary of Labor on behalf of Chacon v.

 1
     Section 105(c)(1) provides in 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] including a complaint notifying
 the operator...of an alleged danger or safety or health
 violation in a coal or other mine....

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Phelps Dodge Corporation , 3 FMSHRC 2508, 2510 (1981).

 The most common circumstances upon which such an inference

may be based are the employer’s knowledge of the protected
activity, hostility towards the protected activity (animus),
nearness in time between the protected activity and the adverse
action, disparate treatment of the complainant and similarly
situated employees, and the resort to pretextual grounds for the
adverse action against the complainant.

 Section 105(c) protects the exercise of rights under the

Act, but not misconduct. Abusive or threatening conduct toward a
supervisor or management staff in raising a safety complaint may
run the risk that the operator will take disciplinary action for
conduct that is not protected by § 105(c).

                   Protected Activities

 Holtz was engaged in numerous protected activities. He

disagreed with the company’s account of the 1990 accident and
raised complaints about safety rules needed to prevent similar
accidents. His voicing of these concerns to mine management and
the mine safety manager was protected against retaliation under §
105(c).

 His numerous contacts with MSHA concerning its investigation

and its preparation for a hearing on citations were protected
under § 105(c). His status as a prospective witness at the
hearing was protected.

 His filing of a § 105(c) complaint of discrimination in 1992

was a protected activity.

 Finally, his complaints about the 1992 settlement of the

citations and penalties were protected activities to the extent
that they raised questions of a violation of the Act or
regulations for the proper enforcement and administration of the
Act.

                Disposition of the Issues

 Holtz contends that Falkirk’s probation decision was based

on Gilliss’ account of the incident in the Comfort Inn on
February 21, 1995, and that Gilliss gave a false and exaggerated
account to retaliate against Holtz because of his protected

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activities. Holtz contends that Gilliss demonstrated a pattern
of hostility toward his protected activities as evidenced by the
probation decision and Falkirk’s two prior adverse actions of
placing Holtz on medical leave for psychological evaluation in
1993 and its written reprimand in 1994. Holtz contends that all
three actions were based on Gilliss’ accounts of the facts which
were false or exaggerated by Gilliss to retaliate against Holtz’
protected activities. The company denies any discrimination or
hostility because of Holtz’ protected activities and asserts that
the 1993 and 1994 actions are barred by a 60 day statute of
limitations.

 The two prior adverse actions are not part of Holtz’ present

complaint of discrimination, and will not be adjudicated here as
liability claims. However, they will be considered under the
issue whether management through Gilliss demonstrated a pattern
of hostility toward Holtz’ protected activities.

 1.   Medical leave for psychological evacuation

 In March 1993, Gilliss reported to management that MSHA

Inspector Keller had expressed concerns about Holtz’ emotional
state and safety as a heavy equipment operator. Based upon
Gilliss’ account of Keller’s remarks, management decided to place
Holtz on medical leave for psychological evaluation.

 Holtz testified that Keller told him that he did not tell

Gilliss that Holtz was a danger to himself or others, or a “time
bomb” waiting to go off, as Gilliss had reported to management.
Keller testified that he expressed concerns about Holtz’
inability to put the accident behind him and the possibility that
he was not able to maintain full concentration while operating
the large coal hauler. Keller also testified that he mentioned
Holtz’ flashbacks about the accident and asked Gilliss whether
there was something that Falkirk could do in terms of providing
Holtz with counseling. I find that the essence of the
inspector’s safety concerns about Holtz’ emotional state was
conveyed in Gilliss’ report to management, even though Gilliss
may have exaggerated or misstated some of Keller’s remarks.

 The evidence does not indicate that Gilliss’ report to

management was motivated in any part by Holtz’ protected
activities. Gilliss did not demonstrate hostility toward Holtz’
protected activities. Instead, he recommended that Holtz contact
MSHA if he had any further complaints or facts to assist the
investigation of the 1990 accident. Gilliss’ report about
Keller’s remarks was in March 1993, which was about six months
after the settlement of the citations and almost two years after
Holtz first started complaining to the company and to MSHA about

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the accident and the investigation. There is no close
relationship in time between Holtz’ protected activities and
Gilliss’ report of Keller’s remarks. 2 The evidence indicates
that Gilliss was motivated to alert management to Keller’s safety
concerns about Holtz because of the significance of a federal
mine inspector expressing concerns about the emotional state and
possible safety risk of a heavy equipment operator.

 2.   Written warning on August 11, 1994

 Gilliss wrote a memorandum to his files on August 3, 1994,

concerning a confrontation with Holtz in the shift change area.
Based upon Gilliss’ report to management, management issued a
written warning to Holtz on August 11, 1994.

 This incident was long after the 1990 accident and 1992

settlement of the citations with MSHA. The evidence indicates
that Gilliss’ motivation in reporting the August 3 incident to
management was his concern about abusive and intimidating
behavior by Holtz rather than Holtz’ protected activities.

 3. Letter of probation on February 23, 1995

 The controlling issue in this case is whether Gilliss’

account of the Comfort Inn incident, which induced management’s
probation decision in February 1995, was motivated in any part by
Holtz’ protected activities.

 On February 22, 1995, Gilliss prepared a memorandum of an

incident with Holtz at the Comfort Inn bar on February 21, 1995.
Ex. C-12. This memorandum was the basis of his report to
management, which led to management’s decision to place Holtz on
probation for six months. Gilliss’ report to management is an
integral part of management’s decision because it provided the
facts accepted by management as the basis for its probation
action. If Gilliss’ report is found to be tainted by
discrimination, management’s decision would be similarly tainted.

 Although Gilliss’ memorandum of the incident contains some

 2
  Holtz’ statements to Keller during the February 1993

inspection were protected activities. However, the evidence
indicates that Gilliss’ motivation in reporting Keller’s safety
concerns about Holtz was to alert the company to a federal
inspector’s concerns, not to retaliate against Holtz for
protected activities.

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exaggerations, I find that the essence of Holtz’ conduct that
disturbed him, i.e., standing at his table and staring at him
without talking, was conveyed in his report. The evidence does
not preponderate to show a nexus between Gilliss’ report to
management and any protected activities by Holtz. Instead, the
evidence indicates that the motivation of Gilliss and management
was to address conduct they perceived as intimidating and a
violation of the August 11, 1994, written warning.

 In summary, after proving his protected activities, Holtz

had the burden to prove that there was some nexus between his
protected activities and the challenged adverse action.

 The evidence does not show a nexus between any of the three

adverse actions (in March 1993, August 1994, and February 1995)
and Holtz’ protected activities. First, the evidence does not
show that Respondent had hostility toward Holtz’ protected
activities. Gilliss and management on several occasions told
Holtz that if he had continuing concerns about the 1990 accident
or the investigation he should contact MSHA. The accident
occurred in December of 1990 and the settlement of the citations
was approved in September 1992. During this time Holtz had a
number of contacts with both MSHA and Falkirk management and
Gilliss concerning his complaints about the investigation and his
perceptions that Falkirk had misrepresented the facts and
covered up serious violations and was “in cahoots” with MSHA and
its attorneys. Yet during this period Holtz was not disciplined
by Falkirk and was given good evaluations for his job
performance. Secondly, the evidence indicates that each of the
three adverse actions had a close relationship in time with
conduct that was not protected by § 105(c). The decision to
place Holtz on medical leave for psychological evaluation in
March 1993 directly followed the concerns raised by MSHA
Inspector Keller about Holtz’ emotional state and possible safety
risk as a heavy equipment operator. The written warning on
August 11, 1994, was triggered by an August 3 incident that the
operator perceived as employee misconduct, not an activity
protected by § 105(c). Finally, the probation decision on
February 23, 1995 was based on conduct on February 21 that the
operator perceived as a violation of the August 1994 written
warning and not an activity protected by § 105(c).

 For the above reasons, I find that the evidence does not

establish a violation of § 105(c). Even if the evidence were
found to prove that the probation decision was motivated in some
part by Holtz’ protected activities, I find that the operator
affirmatively proved that it considered Holtz’ unprotected
conduct and would have put him on probation for that conduct
alone.

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 Respondent’s Motion to Recover Attorney Fees and Costs

 Respondent contends that Holtz’ discrimination complaint is

without merit and was filed as a tactic to forestall or chill
legitimate personnel actions and to re-litigate claims barred by
the statute of limitations. It requests a finding that Holtz has
abused the discrimination complaint process and moves for
recovery of attorney fees and costs under the Commission’s Rules
of Practice, 29 C.F.R. § 2700.1, and Fed. R. Civ. P.11.

 I find that the complaint rests upon substantive

contentions, and was not frivolously brought. Holtz had good
faith, substantial concerns about what he perceived to be
management’s failure to acknowledge its own role in contributing
to the fatal accident, its delays in adopting and following
traffic safety rules, and its participation in a “white-washing”
settlement of MSHA’s charges and civil penalties. Holtz also
felt frustrated by management’s failure to spend time with him
after the accident to get his input on the facts and safety
issues he perceived about the accident and concerns he felt about
the loss of a co-worker’s life. He felt isolated by management
after a traumatic accident that he believed could have been
prevented through the observance of proper traffic safety rules.
On good faith grounds, although not meeting his burden of proof,
Holtz believed Gilliss and management retaliated against him
because of his protected activities. Factual issues as to the
two prior adverse actions were relevant in considering whether
Gilliss, a key management agent, demonstrated a pattern of
hostility toward Holtz’ protected activities. In sum, I find
that Holtz has not abused the discrimination complaint process.

                    CONCLUSIONS OF LAW

 1.   Respondent’s Falkirk Mine is subject to the Act.

 2. Complainant, Harold Holtz, has failed to prove a

violation of § 105(c) of the Act.

 3. In bringing this action, Complainant has not abused the

discrimination complaint process.

                           ORDER

 WHEREFORE IT IS ORDERED that:

 1.   The complaint is DISMISSED.

 2. Respondent’s motion to recover attorney fees and costs

is DENIED.

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                          William Fauver
                          Administrative Law Judge

Distribution:

Steven L. Latham, Esq., P.O. Box 2056, Bismarck, ND 58502-2056
(Certified Mail)

Charles S. Miller, Jr., Esq., Fleck, Mather & Strutz, P.O.
Box 2798, Bismarck, ND 58502 (Certified Mail)

nt

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