Mark Gray v. North Fork Coal Corporation

Read the official release (fmshrc.gov)

Plain-English summary

Coal miner Mark Gray alleged that North Fork Coal fired him for refusing to roof bolt an excessively deep cut and for insisting that ventilation curtains be hung while he worked. The Commission had vacated an earlier dismissal and remanded the case because the Judge improperly excluded expert testimony about whether Gray's signatures on two disciplinary warnings were forged. On remand, Judge Priscilla M. Rae considered the handwriting expert's testimony but found his methods and conclusions unreliable and gave the forgery opinion little weight. She found the warnings authentic and concluded that the credible testimony and records did not establish that Gray engaged in the alleged protected activities. The Judge dismissed the discrimination complaint.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed after remand for failure to establish protected activity.
• Key point: The handwriting evidence did not prove that disciplinary warnings were forged or supply credible evidence that the miner engaged in protected activity.

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

July 2, 2015

MARK
GRAY,

Complainant

v.

NORTH
FORK COAL CORPORATION,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. KENT 2010-430-D

BARB-CD-2009-13

Mine:
Mine No. 4

Mine
ID: 15-18340

DECISION ON
REMAND

Appearances:               Tony
Oppegard, Esq., Lexington, Kentucky and Wes Addington, Esq., Appalachian
Citizens’ Law Center, Whitesburg, Kentucky, for Complainant

Stephen
M. Hodges, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia, for
Respondent

Before:                        Judge
Rae

This case is before me upon a complaint
of discrimination filed by coal miner Mark Gray (“Gray”) against North Fork
Coal Corporation (“North Fork”) under section 105(c) of the Federal Mine Safety
and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 815(c).[1]

I.                  
PROCEDURAL
HISTORY

A.    Original
Decision

On May 15, 2009, Gray was terminated
from his job as a roof bolter at North Fork’s Mine No. 4. Gray subsequently filed
a complaint against North Fork alleging discrimination under section 105(c)(3)
of the Mine Act. He alleged that he had been fired for a protected work refusal
in that he refused to roof bolt a “deep cut,” a cut of coal that exceeded the
maximum depth allowed by the roof control plan. (Complaint, Dec. 30, 2009.) He
also alleged that his foreman had “expressed annoyance/hostility when Gray
insisted that the ventilation curtains had to be hung while he was roof
bolting.” Id.   

A hearing was held on December 15-16,
2010. I issued a decision on October 20, 2011. 33 FMSHRC 2495 (Oct. 2011)
(ALJ). After considering all the evidence and testimony that had been presented
at the December 2010 hearing and at Gray’s earlier temporary reinstatement
hearing,[2]
I concluded that Gray had failed to make out a prima facie case of
discrimination because he had failed to prove he engaged in protected activity.
My earlier decision is incorporated by reference herein. 

B.     Scope of Remand

Gray appealed my decision on grounds
that he should have been permitted to present expert testimony on the issue of whether
his signatures were forged on two written disciplinary warnings that had
purportedly been issued to him on February 27, 2009 and April 29, 2009
(Exhibits Compl.-B and Compl.-A, respectively).[3]
35 FMSHRC 2349, 2355 (Aug. 2013). Several days before the hearing, Gray had
named forensic document examiners Dr. Larry S. Miller and Peter J. Belcastro,
Jr. as potential expert witnesses who would testify as to the authenticity of
Gray’s signature on the purported disciplinary warnings. (See Supplemental
Answer of Mark Gray to North Fork’s 2nd Set of Interrogs., Dec. 3, 2010; 2nd
Suppl. Answer to 2nd Set of Interrogs., Dec. 6, 2010.) North Fork had
immediately moved to preclude Gray from calling the two expert witnesses. I had
granted North Fork’s motion and excluded the witnesses on the basis of late
disclosure, (Order, Dec. 8, 2010, unpublished), but I had permitted Gray to
submit the experts’ reports in an offer of proof at the close of the hearing, (Tr.II
110-21).

On appeal, the Commission found that Gray’s
late disclosure of the expert witnesses did not violate any discovery rules
such as would have justified excluding their testimony. 35 FMSHRC 2349, 2356-58
(Aug. 2013). To the extent that the late disclosure violated the deadlines set
forth in my scheduling order, the Commission found that the witnesses
nonetheless should have been permitted to testify in light of the lack of
prejudice to North Fork, the absence of evidence of bad faith on Gray’s part,
and the importance of the witnesses’ testimony. Id. at 2360. The majority
opined that the expert testimony regarding the written warnings was important both
because the written warnings were the “principal documentary evidence
supporting North Fork’s claim of Gray’s poor performance” and because Gray’s
allegation that the documents were fraudulent touched on the integrity of the
proceedings. Id. at 2362. The majority further opined that the
evidentiary exclusion could have affected the analysis of whether protected
activity occurred.[4]
Id. at 2362-65. My order excluding the expert testimony was reversed,
the decision was vacated, and the case was remanded “for further proceedings,
including any necessary discovery.” Id. at 2366.

On remand, I am limited to considering
the issues that were appealed to the Commission and addressed in the
Commissioners’ decision. As always, the Commission’s scope of review on appeal
was statutorily limited to the questions raised by Gray in his petition for
discretionary review. 30 U.S.C. § 823(d)(2)(A)(iii); see also 29 C.F.R.
§ 2700.70(g); Saab v. Dumbarton Quarry Associates, 22 FMSHRC 491, 495
(Apr. 2000). Gray’s PDR focused squarely on whether I should have excluded
Miller’s and Belcastro’s testimony. The Commission did not entertain any new
theories or evidence and did not grant a de novo trial, but merely
remanded the case to me for consideration of the expert testimony and its
effect on my credibility determinations, along with any necessary discovery,
adhering to “the basic principle that parties in Mine Act cases must first
present their evidence and advance their legal theories before the Judge, and
not for the first time on appeal.” Black Beauty Coal Co., 37 FMSHRC 687,
693-94 (Apr. 2015); see also Oak Grove Res., LLC, 33 FMSHRC 2657, 2664
(Nov. 2011); Beech Fork Processing, Inc., 14 FMSHRC 1316, 1321 (Aug.
1992). Accordingly, the scope of this case on remand is limited to my
consideration of the testimony of Gray’s handwriting experts, any rebuttal evidence
presented by North Fork, and the effect of the expert testimony on all the other
witnesses’ credibility and on the outcome of the case.  

C.     Rehearing

When the case was returned to me, I scheduled
a hearing to take the testimony of the two expert witnesses previously
identified by Gray, Miller and Belcastro. North Fork filed a motion requesting
that I expressly limit the scope of the hearing to those two witnesses’
testimony and any necessary rebuttal testimony. (Mot. to Amend Notice of Hr’g,
Jan. 22, 2014). Gray opposed that motion and filed a separate motion seeking
leave to introduce additional evidence in the form of (1) testimony from a new
lay witness, and (2) evidence from a previously unidentified “mine safety
expert” whose anticipated testimony was not described with particularity. (Mot.
to Allow Presentation of Add’l Lay & Expert Evidence at Re-Trial, Feb. 14,
2014.)

On March 4, 2014, I issued an order
granting North Fork’s motion to limit the scope of the hearing and denying
Gray’s motion to allow additional evidence. 36 FMSHRC 797 (Mar. 2014) (ALJ). I
explained that the scope of the hearing on remand was limited to those issues raised
in the petition for discretionary review and accepted for review by the
Commission – namely, whether Gray should have been permitted to attack the
credibility of North Fork’s witnesses by presenting the testimony of Miller and
Belcastro. Id. at 799-800. Although I recognized that the Commission had
contemplated a possible change in the outcome of the case on remand, I noted
that such a change was contemplated only to the extent it resulted from Miller’s
and Belcastro’s impact on my credibility assessments. Id.

I rejected Gray’s argument that he was
entitled to a de novo trial or presentation of new evidence under Federal
Rules of Civil Procedure 59 or 60(b)(2), finding that he did not meet the stringent
requirements for either of these extraordinary forms of relief. Id. at
800-03. To obtain a new trial under Rule 59 based on affidavits, the movant
must file a motion with affidavits within 28 days of entry of judgment; here,
Gray’s motion and affidavits were filed 28 months after entry of judgment, so
his Rule 59 motion was time-barred. Id. at 800. Similarly, to obtain
relief from judgment based on newly discovered evidence under Rule 60(b)(2), the
movant must request relief within one year of entry of judgment, which has been
interpreted by the Commission as an absolute requirement; again, Gray did not
meet this time limitation. Id. at 800-01. In addition, a party seeking
to introduce new evidence under Rule 60(b) must show that the evidence was in
existence at the time of trial but could not have been obtained even by
exercising due diligence, is not merely cumulative, and would change the
result. Id. at 801. Gray did not make these showings, for the reasons
that follow.

First, the new lay testimony Gray sought
to admit could have been presented during the initial proceedings and lacked any
indicia of reliability such as would show it would change the result of the
case. Id. at 801-02. The new lay witness, Michael Creech, was a former
roof bolter at North Fork’s No. 4 Mine who would purportedly testify that he
had seen deep cuts being taken at the mine, that he had been told to bolt
faster than Gray to make him look bad, and that he had heard an unidentified
member of management say he wanted to be rid of Gray for making safety
complaints. Id. at 801. However, Creech’s vaguely worded affidavit did
not include any details such as when and where he had observed deep cuts, who
told him to bolt faster, or whom he had overheard discussing Gray; in sum, the
affidavit lacked any specific facts that would lend credibility to Creech’s
proffered testimony. Id. at 802.The information Creech would provide
would not change the outcome of the case in light of the independent
documentary evidence and credible testimony that contradicts Creech’s
affidavit. Id. Gray also failed to show that Creech’s testimony was
unavailable at trial. Although Creech’s alleged fear of reprisal from his
employer had supposedly prevented him from testifying at the initial hearing,
there was no evidence Gray had attempted to secure Creech’s presence at that
hearing and Creech had stopped working for North Fork at least five months
before my initial decision was issued, yet Gray had not filed for a new hearing
or made any attempt to identify or secure Creech as a witness. Id. at
801-02. I concluded that the affidavit from Creech did not justify
reopening the litigation and I still reach the same conclusion having reevaluated
the evidence as set forth below.

I also found that the new expert
testimony Gray sought to admit could have been obtained before the initial
hearing and would not necessarily change the result. Gray was requesting to
call Tracy Stumbo as an “expert on mine safety.” Id. at 802. Gray’s
counsel did not offer an affidavit or summary of Stumbo’s proffered testimony,
but during a conference call he suggested that Stumbo would testify “just
generally about taking deep cuts and whether or not that means you will have a
roof fall.” Id. at 803. There was no proffer that this expert had ever
set foot in the North Fork mine during the March through May 2009 period of
time or had any particular knowledge of the conditions at that time as did those
persons who worked in and inspected the mine during the relevant period. I
found that this information could have easily been addressed at the initial
hearing, and furthermore there was no showing that Stumbo’s testimony would materially
affect the outcome of the case, as the roof fall issue was only one basis upon
which I made credibility determinations at trial. Id. This is
particularly true taking into account MSHA roof specialist Doan’s testimony
that no deep cuts were permitted in District 7, the MSHA district where the
mine was located, at this time due to the roof conditions. I also took into
account the fact that all the witnesses, including Gray, testified that
conditions were such that traveling under unsupported top posed a very high
risk of danger. Accordingly, I denied Gray’s request to present the new expert testimony.
I find it would not have changed my assessment of the evidence or the outcome
of the case.  

Gray subsequently filed notice that he
would call only Miller to testify at the hearing. North Fork filed a motion
seeking to exclude or limit Miller’s testimony on the basis that handwriting analysis
is not a reliable field of expertise under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579
(1993).[5]
However,
I denied that motion, reasoning that in a non-jury trial the risk of improper
influence is eliminated and the reliability of expert testimony goes more to its
probative weight than to its admissibility. (Pretrial Ruling on Resp.’s Mot. to
Exclude Expert Testimony & Objection to Exhibits, July 25, 2014,
unpublished). I also noted that the Commission had specifically directed me to
admit the expert testimony.

A hearing was held on July 29, 2014 in
Harlan, Kentucky, at which time Gray offered Miller’s expert testimony and related
documentary evidence, including Miller’s report, his curriculum vitae, and
copies of the signatures he analyzed. Belcastro was not called as a witness. North
Fork did not call any rebuttal witnesses. The following decision is based upon
my consideration of the new evidence, my thorough review of the entire record,
and my observations of the demeanor of the witnesses at the December 15-16,
2010 and July 29, 2014 hearings.     

II.               
EXPERT
TESTIMONY

A.    Summary of Expert
Testimony

Dr. Larry S. Miller is an expert in the
field of forensic document examination, which includes handwriting
identification, signature verification, and examination of paper and ink to
identify the source of impressions and markings. (ET 9.)

Miller’s qualifications are set forth in
his testimony and curriculum vitae. He holds Bachelor’s and Master’s degrees in
Criminal Justice and a Ph.D. in Public Health and Safety. He has worked as a
forensic science professor ever since he received his Master’s degree in 1977,
and he currently serves as chair of East Tennessee State University’s Criminal
Justice and Criminology department and director of its graduate program for
forensic document examination. Miller has also worked as a forensic document
examiner (FDE) for the state of Tennessee since 1981 and for a private
consulting firm since 2008. His earliest training as an FDE was received
through the Tennessee Law Enforcement Training Academy and a community college
in the 1980s. He later completed the U.S. Secret Service’s basic and advanced
courses in questioned document examination in 1987 and 2002, respectively. Although
there are no state or federal licensing programs for FDEs, Miller is certified
by the Board of Forensic Document Examiners, which is accredited by the
Forensic Specialties Accreditation Board. (ET 6-17, 52-58; Ex. Compl.-E.)

In this case, Miller was asked to
examine the purported disciplinary warnings dated February 27, 2009 (Exhibit Compl.-B,
also referred to as “Q1”) and April 29, 2009 (Exhibit Compl.-A, also referred
to as “Q2”) to determine whether Gray’s signatures on these documents were
genuine. After comparing the questioned signatures to a group of 54 exemplar
signatures known to have been executed by Gray, Miller issued a two-page report
opining to a high degree of likelihood that the questioned signatures were not
penned by Gray. (Ex. Compl.-D.) This conclusion was based on Miller’s
observation of “numerous significant disqualifying dissimilarities” between the
questioned and exemplar signatures, including “dissimilarities in line quality,
letter formations, proportional spacings, beginning and ending strokes, and
angle/slant.” Id.

Miller explained his findings in greater
detail at the hearing. First he described the theory behind handwriting analysis.
Handwriting analysis is a forensic identification procedure that relies on
pattern recognition. (ET 101-02.) The underlying principle is that “given a
sufficient quantity and quality of handwriting, no writer has ever been found
to possess the same characteristics of the writing of another person.” (ET 19.)
Unlike a fingerprint, each specimen of a person’s handwriting is not exactly the
same, but it is expected to fall within the “normal curve” representing the
natural variation of his known writing. (ET 22-23, 82.) Thus, to authenticate a
questioned signature, a handwriting examiner first examines a group of known
signatures to become familiar with the characteristics of the subject’s writing
and then examines the questioned signature to determine whether it falls within
the normal curve of the subject’s writing. (ET 22-23, 67.)

Miller relied on the 54 exemplar
signatures contained in Exhibit Compl.-F to familiarize himself with Gray’s
usual writing. The exemplars were collected by MSHA investigators during the
investigation of Gray’s discrimination complaint. Forty of them comprise two
lists of “request” exemplars that Gray produced at the request of MSHA Special
Investigator Guy Fain on July 21 and 30, 2009. (Ex. Compl.-F, pages 9-10.) There
is very little variation amongst the signatures in either of these lists. Miller
testified this uniformity is typical for a list of request exemplars because all
of them were written under the same conditions. (ET 112.) The other fourteen
exemplars display much greater variation. Six of them were taken from
Department of Labor forms dating from 2001 to 2005. (Ex. Compl.-F, pages 3-8.) The
remaining eight are from unknown sources. One is dated November 20, 2007 and
the rest are undated. (Ex. Compl.-F, pages 11-18.)

Miller testified that Gray’s known
writing (i.e., the exemplars) exhibited an above average degree of natural variation.
(ET 24-25.) Because of this wide range of natural variation, Miller’s level of
confidence in his conclusion that Gray did not pen the questioned signatures
was “a notch below certainty.” (ET 32-33, 88-89.) Nonetheless, Miller testified
he had identified several fundamental differences between the questioned and
known signatures that led him to believe they were not written by the same
person. (ET 71-72.)

Miller did not define “fundamental
difference” or explain what differences he characterized as fundamental in this
case. However, he provided a letter-by-letter analysis of the dissimilarities
he observed between the questioned signatures and the exemplars, including differences
in the formation of the M’s, R’s, and K’s. (ET 25-29.) He also described
differences in writing speed, skill level, and slant. The feathering, or fading
of the terminal stroke, in the questioned signatures indicated they were
written with a greater degree of speed than was apparent in the exemplar signatures.
(ET 29.) Miller also felt that the questioned signatures were executed with a
greater level of skill than the exemplars, which showed an immature type of
writing indicative of someone who does not write frequently. (ET 29-30.) In
addition, the right-handed slant in the questioned signatures was more
prominent than in the exemplars. (ET 30-31.)

Miller
also testified that he had sent the case for peer-review by two other forensic document
examiners, both of whom expressed stronger opinions than he did that Gray could
be eliminated as the writer of the questioned signatures. (ET 71-72.) These two
FDEs were Heidi Harralson and Chris Burkey. (ET 102-03.) Harralson and Burkey’s
opinions were not submitted into evidence.

On cross-examination, Miller conceded
that handwriting analysis does not “fall under the same quantifiable measures”
as other sciences such as DNA analysis in that there is an element of
subjectivity in quantifying the probabilities involved in handwriting that does
not exist with DNA. (ET 90-91.) Examples of this subjectivity are mentioned elsewhere
in Miller’s testimony. For instance, when asked how many exemplars a
handwriting examiner should review before forming an opinion, Miller said the
number must be “sufficient” but sufficiency is a judgment call made by the
examiner. (ET 63.) Similarly, when asked how many differences are required to
rule a signature invalid or not authentic, Miller testified that this is a
matter for the examiner’s judgment. (ET 71-72.)

Cross-examination revealed there
were factors that Miller did not consider in his analysis of the signatures. Although
he recognized that numerous extrinsic and intrinsic conditions can affect the
appearance of handwriting – including the pen, the writing surface, the general
environment where the writing takes place, the positioning of the writer, any
physical conditions affecting the writer such as illness or fatigue, caffeine
intake, alcohol or drug intake, age and the passage of time, and even stress,
anger, and the writer’s state of mind – Miller testified he was unaware of the
circumstances under which the disciplinary warnings were signed and did not
seek any information about the extrinsic and intrinsic conditions surrounding the
writings. (ET 83-88, 105-06.) He explained that he “saw no evidence where [he]
would need to” because the questioned signatures were “better signatures than
Mark Gray can possibly produce” and the documents themselves gave no indication
that any extrinsic or intrinsic factors were at play. (ET 85, 88, 105-06.) Also,
Miller did not note the color of the ink on the questioned documents or test it
to determine what type it was, although he agreed these factors could be
relevant to evaluating whether the documents were written by the same person at
the same time. (ET 40-43.)  

Miller also failed to supplement
his evaluation with a computer analysis. Computer programs exist that are
capable of identifying and matching handwriting with a 98% success rate. (ET
68-69, 98-100, 107.) Miller has access to such software and he took his
computer with him when he evaluated the questioned documents. (ET 37, 68.) However,
he felt that a computer analysis was unnecessary because he is capable of
performing the same analysis and this was a simple case involving just two
questioned signatures, so it was faster for him to simply look at the
signatures himself. (ET 107-08.)      

Miller was confronted with two
new signatures on cross examination. The new signatures can be found in Exhibit
R-21, consisting of Gray’s signatures from interrogatory responses dated August
3, 2010 (Ex. R-23) and November 29, 2010 (Ex. R-22). At first glance, Miller
testified these signatures added nothing to his analysis. (ET 75.) He testified
that the quality of the November 29 signature, which was a photocopy, was so
poor that he could not make it out well enough to discuss the letter
characteristics, and neither of the signatures had been enlarged. (ET 76-80.) When
pressed, Miller examined the signatures more closely and opined that the word
“Gray” in the November 29 signature had a tremulous appearance that indicated
the paper had been lying on a rough surface when the signature was written. He
suggested the pen may have dipped into something rough or the writer was
nervous or had too much coffee that day. (ET; Tr. 80-81.) “[I]t looks like
they’re trying to make it appear like the Gray in the [August 3] signature, but
it looks like they had a little bit of trouble in the writing,” he said. (ET
80.)   

Aside
from analyzing signatures, Miller also analyzed and took photographs of a set
of ESDA film lifts showing indentations on the two disciplinary warnings. ESDA
films are created using an electrostatic data apparatus (ESDA). An
electrostatically charged Mylar film is pressed very flat against a piece of
paper in a vacuum table such that a dark powder sprinkled over the film will
adhere to any indentations in the underlying paper, including minute
impressions that would not be visible to the naked eye. The powder is then
lifted off of the Mylar film using clear tape to preserve an image of the
indentations. (ET 31-32.)

The ESDA film lifts Miller
examined were created by government investigators, rather than by Miller
himself, but he deemed them adequate for his analysis. (ET 35-36.) North Fork has
submitted photographs of the film lifts in Exhibit R-30. The photographs show
that portions of the handwriting and signatures appearing on the April 29, 2009
warning are indented onto the February 27, 2009 warning. (Ex. R-30.) Miller
concluded that parts of the April 29 warning were written while it was on top
of the February 27 warning. (ET 21, 32-33, 47-49, 97-98.) On cross-examination,
he conceded that he could not say when either warning was written, who wrote
them, or whether they were written by the same person. (ET 49-50.) 

B.     Reliability of Handwriting
Analysis

In Daubert v. Merrell Dow
Pharmaceuticals, Inc., the Supreme
Court considered the admissibility of expert testimony under Federal Rule of
Evidence 702 and concluded that a trial judge must carefully screen scientific evidence
before admitting it in order to ensure that it is based on theories and
techniques that meet certain minimum standards of reliability. 509 U.S. 579
(1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
(applying Daubert to Rule 702 testimony derived from technical or other
specialized knowledge, not just scientific knowledge). The Court provided
the following non-exclusive list of factors to consider in assessing the
reliability of a theory or technique relied upon by an expert witness: (1)
whether the theory or technique is subject to empirical testing, (2) whether it
has been subjected to peer review and publication, (3) the known or potential
error rate, (4) the existence and maintenance of standards controlling its
operation, and (5) the degree of its general acceptance. Daubert, 509
U.S. at 593-94.

North Fork’s pretrial position was that
Miller’s testimony should be excluded or limited under Daubert because the
“science” of handwriting analysis is not sufficiently reliable. However, I allowed Miller
to testify, reasoning that in a non-jury trial the Daubert factors go more
to the weight of the evidence than to its admissibility. See Deal v.
Hamilton County Bd. of Educ., 392 F.3d 840, 852 (6th Cir. 2004) (“The
‘gatekeeper’ doctrine was designed to protect juries and is largely irrelevant
in the context of a bench trial.”), cert. denied, 546 U.S. 936 (2005); United States v.
Velasquez,
64 F.3d 844, 848 (3d Cir. 1995) (“[T]he same considerations that inform the
court’s legal decision to admit evidence under Rule 702 [i.e., the Daubert factors]
may also influence the factfinder’s determination as to what weight such
evidence, once admitted, should receive.”).

Now that Miller’s testimony has been
presented and North Fork has been given an opportunity to rebut it, I must
assess the weight and credibility of the testimony. Accordingly, I must now
reconsider in greater detail the reliability of the theories and techniques that
underlie handwriting analysis.

Daubert
Analysis
of Handwriting Testimony by Other Courts

Before Daubert, courts routinely
admitted expert testimony on handwriting analysis without questioning the
underlying theories and techniques. However, handwriting analysis has received
closer scrutiny and some negative treatment since Daubert. The fear is
that unless forensic document examiners (FDEs) can show that their theories and
methods produce reliable results, allowing a handwriting analyst to label
himself an “expert” could imbue his testimony with a false air of scientific
infallibility that may confuse or mislead a factfinder into attaching greater
significance to the testimony than it truly warrants. In light of this concern,
in recent years several trial courts have refused to admit handwriting
testimony entirely. United States v. Johnsted, 30 F. Supp. 3d 814 (W.D.
Wis. 2013); American Gen. Life & Accident Ins. Co. v. Ward, 530 F.
Supp. 2d 1306, 1311-15 (N.D. Ga. 2008); United States v. Lewis, 220 F.
Supp. 2d 548 (S.D.W. Va. 2002); United States v. Saelee, 162 F. Supp. 2d
1097 (D. Alaska 2001); United States v. Fujii, 152 F. Supp. 2d 939 (N.D.
Ill. 2000).[6]
Other courts have allowed testimony as to similarities and differences in handwriting
but restrained the expert from offering an opinion on the ultimate issue of
authorship of a questioned document or signature. See, e.g., United
States v. Oskowitz, 294 F. Supp. 2d 379, 383-84 (E.D.N.Y. 2003); Wolf v.
Ramsey, 253 F. Supp. 2d 1323, 1341-48 (N.D. Ga. 2003); United States v.
Hidalgo, 229 F. Supp. 2d 961 (D. Ariz. 2002); United States v.
Rutherford, 104 F. Supp. 2d 1190 (D. Neb. 2000); United States v. Hines,
55 F. Supp. 2d 62 (D. Mass. 1999).

Even in cases where expert testimony on
handwriting is admitted, courts have taken a closer look at the scientific
bases for the testimony and have often found it lacking in some respects. This
was the case in United States v. Starzecpyzel, a seminal early decision
critiquing handwriting analysis. 880 F. Supp. 1027 (S.D.N.Y. 1995). In that
case, the trial court concluded that handwriting analysis “clothes itself with
the trappings of science” yet “does not rest on carefully articulated
postulates, does not employ rigorous methodology, and has not convincingly
documented the accuracy of its determinations.” Id. at 1028. A pre-trial
evidentiary hearing had elicited testimony that the two basic principles
underlying handwriting analysis are inter-writer variation (i.e., uniqueness)
and intra-writer variation (natural variation). Id. at 1031. The
fundamental issue, the court concluded, is whether FDEs can reliably
distinguish between the two forms of variation; “How FDEs might accomplish this
was unclear to the Court before the hearing, and largely remains so after the
hearing,” the trial judge stated. Id. at 1031-32. Although he concluded
that expert testimony on handwriting would not be admissible under Daubert,
the judge ultimately allowed the testimony under a less stringent evidentiary
standard because Daubert had not yet been applied to non-scientific
expert testimony. Id. at 1043-46.

Since Starzecpyzel, other courts
that have admitted handwriting testimony have appeared to agree that
handwriting analysis has reliability issues but to skew in favor of giving the
jury the opportunity to decide for itself. See, e.g., United States
v. Crisp, 324 F.3d 261, 271 (4th Cir. 2003) (noting FDE’s primary role is
simply to draw jury’s attention to similarities and differences that they can
then inspect themselves), cert. denied, 540 U.S. 888 (2003); United
States v. Paul, 175 F.3d 906, 911 (11th Cir. 1999) (finding testimony more
probative than prejudicial based on expert’s candid acknowledgement of
limitations of the science and jury’s ability to perform its own visual
comparisons of the handwriting); United States v. Jones, 107 F.3d 1147,
1157, 1161 (6th Cir. 1997) (discussing concerns about reliability but
emphasizing parties’ ability to continue to challenge reliability of evidence
after its admission), cert. denied, 528 U.S. 1023 (1999); United
States v. Prime, 220 F. Supp. 2d 1203, 1216 (W.D. Wash. 2002) (finding
that handwriting analysis “would come up short” if subjected to stricter
scrutiny, but admitting it under flexible reading of Daubert), aff’d,
431 F.3d 1147 (9th Cir. 2005).  

In this case, the parties have not
presented much evidence specifically directed to the reliability of handwriting
analysis as a science. Gray relies solely on Miller’s testimony, report, and
curriculum vitae. North Fork submitted two published studies on handwriting
analysis with its pre-trial Daubert motion, one of which is a study on the
individuality of handwriting and the other on whether certain propositions
pertaining to handwriting analysis are generally accepted in the relevant
scientific community. (North Fork’s Mot. to Exclude Expert Testimony, July 22,
2014, Exs. A & B.) Except for these studies, North Fork has not presented
any other rebuttal evidence. Given the dearth of record evidence on the reliability
of handwriting analysis as a science, I have reviewed other courts’ treatment
of handwriting analysis with regard to each of the Daubert factors in
order to inform my assessment of Miller’s testimony.     

Empirical
Testing; Peer Review and Publication

The first Daubert factor,
empirical testing, requires an evaluation of whether the theories and
techniques underlying the proffered expert testimony can be challenged in an
objective, empirical sense and whether they have in fact been subjected to such
challenges. The second Daubert factor evaluates whether the underlying
theories and techniques have been subjected to peer review and publication. This
is essentially a measure of whether the empirical testing undertaken in the
field has proven reliable enough to withstand review. Because empirical testing
and peer review and publication are interrelated, I will consider them
together.

The theories and techniques at issue
here are described in Miller’s testimony. Miller testified he relied on the
theory that everyone’s handwriting displays unique characteristics. (ET 19.) The
logical outgrowth of this theory is that handwriting is individually
distinguishable. Applying this theory, an FDE can determine whether a
particular person penned a questioned writing or signature by comparing it to
the person’s known writing to see if it falls within the “normal curve” or
“critical region” representing the person’s unique, distinguishable handwriting
characteristics. (ET 22-23.)

The theory and technique described above
are capable of being empirically tested to validate the underlying principles
and establish an error rate. However, Miller did not cite any studies or
peer-reviewed literature to show that such empirical testing has been conducted.
The only relevant empirical data before me is a journal article submitted with
North Fork’s pre-trial Daubert motion discussing a study by Sargur N.
Srihari, et al. purporting to establish the individuality of handwriting.[7]
(North Fork’s Mot. to Exclude, Ex. A.) In this study, the researchers asked approximately
1500 people to write out three copies each of a 156-word document that featured
all the letters in the alphabet, all ten numerals, several distinctive
character combinations, and other “attributes of interest.” Id. The
writing samples were then scanned into a computer, which was able to identify
authorship of a given writing sample or partial sample with a high accuracy
rate. Id. However, the accuracy rate decreased when fewer words and
characters were considered. Id.

In this case, Miller’s task was to
determine whether two questioned signatures containing just six distinct
characters (M, a, r, k, G, and y) were forged or genuine. The Srihari study
does not provide strong empirical support for an FDE’s ability to reliably
perform this particular task. The amount of questioned writing at issue here is
very small, and the Srihari study showed that attribution of authorship becomes
less accurate as the amount of questioned writing decreases.[8]
Gray has not presented any other evidence of empirical testing. The reliability
of the technique Miller applied is unclear in that there is insufficient
evidence for me to conclude it has been subjected to adequate empirically-based
peer-reviewed testing to establish its efficacy.

In addition, it is unclear whether the
underlying theories Miller relied on have been subjected to adequate empirical
testing and peer review. Miller himself agreed on cross-examination that some
aspects of handwriting variability remain untouched by empirical investigation,
as was noted by one of his students in her graduate thesis. (ET 95-96.) This admission
is significant because understanding the variability of handwriting is crucial
to analyzing it. The Srihari study provides some support for the common-sense
proposition that handwriting is individualistic and therefore distinguishable
by examining its variations. Yet it is unclear to what extent the assumption
holds true that any given person’s handwriting will be unique and
distinguishable from everyone else’s handwriting, and these fundamental propositions
have been questioned by some courts.

For example, in Starzecpyzel, the
court discussed a study in which an FDE had examined the signatures of
individuals with the same name and found that many of the signatures looked so
alike that they were not worth photographing. 880 F. Supp. at 1036 (citing John
J. Harris, How Much Do People Write Alike?, 48 J. Crim. Law &
Criminology 637 (1958)); see also Hidalgo, 229 F. Supp. 2d at 967 (agreeing
with expert witness that hypothesis of uniqueness “has not been fairly
tested”); Lewis, 220 F. Supp. 2d at 552-53 (noting theories that
penmanship characteristics are distinguishable and that there is a base rate of
such characteristics in the population have not been tested). After
discussing a number of other studies on handwriting analysis, the Starzecpyzel
court concluded that the field lacks “critical self-examination” and
scholarship. 880 F. Supp. at 1037-38. Other courts have reached similar
conclusions. See Jones, 107 F.3d at 1157 (noting both
academicians and FDEs have recognized lack of empirical evidence in field); Hines,
55 F. Supp. 2d at 68-69 (finding that studies cited by expert “cannot be said
to have ‘established’ the validity of the field to any meaningful degree”); Saelee,
162 F. Supp. 2d at 1102-03 (finding “overall lack” of empirical testing and
meaningful peer review); Fujii, 152 F. Supp. 2d at 940-41 (noting that
studies on handwriting analysis have been criticized for methodological flaws
and lack of unbiased peer review).

In a recent case, a federal district
judge found that the two main principles on which handwriting analysis is
premised, the principles of uniqueness and intra-writer variation, have not
been adequately tested. Johnsted, 30 F. Supp. 3d at 817-18. The court explained
why the lack of adequate testing of these two principles is so troubling:

This lack of testing has serious
repercussions on a practical level: because the entire premise of interpersonal
individuality and intrapersonal variations of handwriting remains untested in
reliable, double blind studies, the task of distinguishing a minor
intrapersonal variation from a significant interpersonal difference – which is
necessary for making an identification or exclusion – cannot be said to rest on
scientifically valid principles. The lack of testing also calls into question
the reliability of analysts’ highly discretionary decisions as to whether some
aspect of a questioned writing constitutes a difference or merely a variation;
without any proof indicating that the distinction between the two is valid,
those decisions do not appear based on a reliable methodology. With its
underlying principles at best half-tested, handwriting analysis itself would
appear to rest on a shaky foundation.

Id.
at
818.

In sum, although handwriting analysis
has been subjected to some empirical testing and peer review, it appears that reliable
data is lacking. There is insufficient evidence on the record before me to
establish that the theories Miller relied on have been validated or that the
techniques he applied have been proven accurate and effective in cases
involving a very small amount of questioned writing.

Error
Rate

The task Miller was asked to perform in
this case was to determine whether the two questioned signatures were authentic
or forged. In evaluating the reliability of his conclusions, it would be useful
to know two separate error rates: the rate at which FDEs falsely identify a
forged signature as genuine and the rate at which FDEs falsely identify a
genuine signature as forged. However, Miller did not provide any error rate at
all.

Miller testified that computer
technology exists with the capability of matching handwriting samples with a
98% confidence rate, i.e., a 2% error rate. (ET 68-69, 99, 107.) However, he
did not use a computer program to analyze the signatures in this case. Thus,
the only error rate applicable here would be the rate at which FDEs make
mistakes in their work when relying on their own analytical powers rather than
a computer program.

It is not clear whether it is possible
to assign a definitive error rate to FDEs’ work because, as noted by Miller,
the probabilities involved in handwriting analysis are not as readily
quantifiable as those involved in other sciences such as DNA analysis. (ET
89-90.) Nonetheless, many courts have found the lack of an error rate in the
field of handwriting analysis to be problematic. See, e.g., Johnsted,
30 F. Supp. 3d at 820; Lewis, 220 F. Supp. 2d at 552-54; Saelee,
162 F. Supp. 2d at 1103 (“There is little known about the error rates of
forensic document examiners. The little testing that has been done raises
serious questions about the reliability of methods currently in use.”); Fujii, 152 F. Supp.
2d at 940-41; Hines, 55 F. Supp. 2d at 69; Starzecpyzel, 880 F. Supp. at
1037 (characterizing data on error rate as “sparse, inconclusive and highly
disputed” and opining that accuracy testing “must be conducted if forensic
document examination is to carry the imprimatur of ‘science’”); see also
Crisp, 324 F.3d at 280-81 (Michael, J., dissenting). But see United States v.
Mooney,
315 F.3d 54, 62 (1st Cir. 2002) (accepting without comment expert’s reliance on
unnamed study said to demonstrate 6.5% error rate). I find that the lack of an
error rate is troubling because it prevents me from ascribing any particular
level of confidence to Miller’s methodology.

Standards
Governing Operation of Technique

As discussed above, Miller testified
that the technique he applied was to first examine the exemplar signatures to
familiarize himself with Gray’s known writing and then examine the questioned
signatures to determine whether they fell within the normal curve of Gray’s
writing. (ET 22-23, 67.) Miller also discussed which features he analyzed,
which included the shape of each letter and the slant, speed, and skill level
of the writing. (ET 25-31.) His report further states that in conducting his
analysis, he employed “standardized (ASTM) questioned document examination
techniques” where applicable. (Ex. Compl.-D.)

Beyond these vague descriptions, Miller
did not explain what criteria he applied in reaching an ultimate opinion on
authorship of the questioned signatures. North Fork has pointed out that the
ASTM (American Society for Testing and Materials) standards are non-specific,
including such vague directives as “[c]onduct a side-by-side comparison of
comparable portions of the bodies of writing” and “[a]nalyze, compare, and
evaluate the individualizing characteristics and other potentially significant
features present” without defining what constitutes a similarity or difference
or which ones are significant. (North Fork’s Mot. to Exclude, paragraph 12.) The
ASTM standards also do not explain and Miller did not testify as to what
standards FDEs follow to define the parameters of the normal curve of someone’s
handwriting. Miller further did not explain what standards are employed to
distinguish the natural variation in one person’s handwriting from the
variation observed between different writers. He testified there is no standard
in the profession for how much known writing an FDE should review before reaching
a conclusion; the number of exemplars reviewed must be “sufficient,” but
sufficiency is a judgment call made by the examiner. (ET 63.) Miller also
failed to provide any standards as to the type or number of dissimilarities
that must be identified to determine a signature is inauthentic. He testified
that a single fundamental dissimilarity can be sufficient to rule a signature
inauthentic, but provided no guidance as to how FDEs determine whether a
dissimilarity is “fundamental” or decide how many differences are sufficient,
saying only that this determination depends on the examiner. (ET 71-72.) Miller
did not even provide a general idea of how many handwriting traits should be
compared before reaching a conclusion.

Miller further acknowledged that handwriting
analysis is not governed by the same quantifiable standards as some of the
other forensic sciences. Unlike fingerprints or DNA, a person’s handwriting or
signature does not look exactly the same all the time. (ET 23, 82.) Miller
testified that DNA analysis produces a “parametric type statistical inference”
that gives DNA experts a scientific basis to present a definite opinion, but
handwriting analysis does not “fall under the same quantifiable measures.” (ET 89-90.)
Because it is a type of pattern recognition, it is measured in nominal and
ordinal levels of measurement rather than interval or ratio levels of
measurement, meaning there is an element of subjectivity in quantifying the
associated probabilities that is not present with DNA analysis. (ET 90-91.)

Courts have noted, and at times
lamented, the lack of objective quantifying standards governing the operation
of handwriting analysis. See, e.g., Paul, 175 F.3d at
911 (noting that FDE himself acknowledged lack of quantifying standards); Ward, 530 F. Supp.
2d at 1314 (discussing FDE’s failure to articulate methodology and
characterizing FDE’s description of operation of handwriting analysis as “not
very enlightening”); Starzecpyzel, 880 F. Supp. at 1032-33 (finding that
FDE’s testimony failed to elucidate his methodology and identifying various
standards that were lacking). Several courts have deemed it significant that
most FDEs follow the same methodology. For example, in United States v. Crisp,
the Fourth Circuit admitted an FDE’s expert testimony in part because he had
“testified to a consistent methodology of handwriting examination and identification”
used by most FDEs. 324 F.3d at 271; see also Mooney, 315 F.3d at 62; Velasquez,
64 F.3d at 850-51. But regardless of the fact that most FDEs seem to apply
consistent methods, the real problem is that the standards governing these
methods are not objective, as was noted by the dissent in Crisp. 324
F.3d at 281 (Michael, J., dissenting). The lack of objective guidelines gives
rise to an element of subjectivity recognized by Miller that has troubled many
courts. See, e.g., Johnsted, 30 F. Supp. 3d at 819 (excluding
testimony in part because of “extremely discretionary” standards followed by
FDEs); Saelee, 162 F. Supp. 2d at 1104 (excluding testimony after
finding that “[t]he technique of comparing known writings with questioned
documents appears to be entirely subjective and entirely lacking in controlling
standards”); Rutherford, 104 F. Supp. 2d at 1193 (finding it problematic
that a handwriting match “is declared upon the subjective satisfaction of the FDE”
rather than based on empirically based peer-reviewed standards); Hines,
55 F. Supp. 2d at 69 (explaining that nature of handwriting analysis obliges
FDEs to make subjective judgments).

The concerns stemming from this element
of subjectivity are twofold. First, the FDE’s reasoning is shielded from review
and scrutiny to the extent that his conclusions are not based on articulable
criteria. In Wolf v. Ramsey, the trial court explained how this reduces the
reliability of the expert’s opinion:

Nowhere in the submissions provided by
plaintiffs is there any attempt to show by what methodology Mr. Epstein [the
FDE] reaches a conclusion of absolute certainty that a given person is, in
fact, the writer of a questioned document. …The underlying notion behind Daubert,
and all good science, is that a given premise or principle should be capable of
being tested to determine whether the principle is, in fact, sound. Thus, if
Epstein indicated, for example, that whenever a writer of known material has x
number of similarities, there is a given probability that the writer wrote the
note – and if this methodology had been tested by reliable means in the past –
then Epstein would have shown reliability in the methodology that he used to
reach a determination of the likelihood of his conclusion. As it is, however,
Epstein’s explanation for his conclusion seems to be little more than “Trust
me; I’m an expert.” Daubert case law has indicated that such an
assertion, which seems to be based more on intuition than on scientific
reasoning, is insufficient.

253
F. Supp. 2d at 1347.

The second problem with subjectivity is
that it gives rise to a potential for bias. Miller agreed that forensic
sciences like handwriting analysis are subject to bias, which has presented
problems within the field. (ET 56-57.) As an example of unethical bias, he
testified that an FDE could pick a single signature that looks nothing like the
subject’s normal writing and say “of course they don’t match.” (ET 64.) Conscious
bias is certainly a concern. But even an honest and ethical FDE with the best
of intentions can fall prey to forms of unconscious prejudice such as
confirmation bias, which is a bias of expectation and suggestion. The threat of
bias thus decreases the reliability of an FDE’s opinion even if there are no
signs of conscious bias.

After reviewing the evidence, I conclude
that Miller has not established that the technique he applied to analyze the
questioned signatures is governed by consistent objective standards. Rather,
the methodology he applied contains an element of subjectivity that is
troubling because it prevents me from fully evaluating his reasoning and gives
rise to a potential for bias.

Degree
of General Acceptance of Underlying Theories/Techniques

Except for Miller’s testimony, Gray did
not produce any evidence that would establish the degree of general acceptance
of the theories and techniques underpinning handwriting analysis. Miller testified
that the approach he applied to analyze the questioned signatures is generally
accepted in the field of forensic document examination because no two people
have ever been shown to have the same handwriting characteristics. (ET 18-19.) On
the other hand, North Fork submitted a published study purporting to show that
various principles of handwriting identification are not generally accepted.[9]
(North Fork’s Mot. to Exclude, Ex. B.)

The
researchers had framed general statements of purported principles about
handwriting analysis and asked FDEs and handwriting scientists what they
understood their field’s degree of consensus to be regarding the validity of
each principle. Id. They found that FDEs and handwriting scientists
appeared not to agree on the acceptability of most of the propositions posed to
them, and the handwriting scientists viewed fewer of the propositions as
generally accepted. Id.

I do not doubt Miller’s assertion that
the FDE community accepts the general theory underlying his methodology, which
is that no two people write alike. However, the study submitted by North Fork
shows that many of the principles of handwriting analysis have not yet achieved
general acceptance and the technique is still unsettled. In addition, general
acceptance by the FDE community is of minimal significance until it can be
shown that this community has undertaken the type of critical self-review of
its science that would be necessary to empirically validate the pertinent
techniques and to establish an error rate and objective controlling standards. See
Saelee, 162 F. Supp. 2d at 1104-05 (deeming acceptance within field
insignificant because of its uncritical nature); Fujii, 152 F. Supp. 2d
at 940-41 (finding it problematic that acceptance of handwriting expertise is
largely by handwriting experts themselves); Starzecpyzel, 880 F. Supp. at
1038 (attaching little significance to acceptance within field because field is
devoid of financially disinterested parties and there was no showing of acceptance
by related scientific or academic communities); Crisp, 324 F.3d at 281
(Michael, J., dissenting) (stating that general acceptance comes only from
those who have not questioned basic underlying premises).

In analyzing Daubert’s general
acceptance factor, some courts have found it relevant that all of the Circuit
Courts to consider the issue have admitted handwriting testimony. However,
under Daubert, it is acceptance by the scientific community rather than
the court system that is relevant. Moreover, the Circuit Courts that have
permitted expert testimony on handwriting have done so under the deferential
abuse-of-discretion standard, meaning their opinions can be read not so much as an
endorsement of the science than as an unwillingness to impinge upon the trial
court’s gatekeeping function. See Johnsted, 30 F. Supp. 3d
at 821.

On
the record before me, I cannot say that the theories and techniques underlying handwriting
analysis have achieved general acceptance in the relevant scientific community.
The study submitted by North Fork suggests a lack of consensus among FDEs as to
the significance and even the validity of various principles underlying
handwriting analysis. The lack of a cohesive generally accepted theory and
technique decreases the reliability of Miller’s analysis.

C.     Analysis of Miller’s
Conclusions

Because of my concerns about the
reliability of handwriting analysis as a science, I have carefully evaluated
Miller’s conclusions and reasoning therefor to determine how much weight to
accord his opinion that the signatures were forged. Miller made many
interesting and helpful observations about the signatures which I have fully
considered. However, I find that his ultimate conclusion that the questioned
signatures were forged is of low probative value for the reasons discussed
below. These reasons include failure to adequately account for the high degree
of natural variation in Gray’s writing; potential problems with the sufficiency
of the exemplars; failure to delineate the bounds of the “normal curve” of
Gray’s writing or define what would constitute a “fundamental” divergence from
this curve; failure to convincingly explain the significance of the
dissimilarities observed between the questioned and known signatures; failure
to adequately account for certain other relevant factors, including the
circumstances surrounding the execution of the disciplinary warnings and the ink,
indentations, and other handwriting appearing on the documents; the potential
for confirmation bias; and inadequate justification for the high level of
certainty Miller expressed in his opinion.

First, the high degree of natural
variation in Gray’s known signatures, as seen in Exhibit Compl.-F, raises
significant doubts about Miller’s ability to reliably apply the signature
analysis technique he described. As noted above, Miller testified that he
analyzed the signatures by first familiarizing himself with the characteristics
of Gray’s known writing and then determining whether the questioned signatures
fell within the “normal curve” or “critical region” of Gray’s natural
variation. (ET 22-23.) The idea that a person’s handwriting will always fall
within a certain range of natural variation is essentially a principle of
individual discriminability that relies on an assumption that handwriting
characteristics are, to a certain critical degree, immutable. Broad variation
in a person’s handwriting undermines this assumption. Miller acknowledged that
the broad variation in Gray’s known signatures decreased his level of
confidence to “a notch below certainty.” (ET 32-33, 88-89.) However, he did not
otherwise discuss how the variation affected his analysis. He did not explain
how he accounted for the variation or how he determined that the differences
between the questioned and known signatures were attributable to variation
between writers rather than to the broad variation seen in Gray’s own writing. Furthermore,
“a notch below” is hardly a scientific measurement and his use of this term
speaks to the subjectivity involved in his analysis.

In addition, I am not convinced that the
exemplar signatures Miller reviewed were sufficient to familiarize him with
Gray’s normal writing to the degree that he would be able to reliably identify
or exclude Gray as the signer of other documents. As noted above, Miller
reviewed 54 exemplars to familiarize himself with Gray’s writing. (See Ex.
Compl.-F.) Forty of them appear on two lists of request exemplars that were
penned at the same time under the same conditions (ET 112), meaning that the 54
exemplars represent Gray’s penmanship under just 16 distinct sets of
circumstances. Miller did not say whether this is typically considered a
sufficient representation of a person’s handwriting. He testified that numerous
exemplars must be reviewed as opposed to just one or two because of the natural
variation in a person’s handwriting, but he did not give any indication what
number of exemplars is generally considered sufficient, saying only that this is
a matter for the handwriting examiner’s judgment. (ET 22-23, 63.) He also did
not address whether the above average degree of natural variation in Gray’s
writing would merit an above average number of exemplars. Because Miller did
not provide any standards for evaluating the sufficiency of the known writing,
he has not provided any assurance that the known writing he relied on was
adequate to allow him to accurately delineate the bounds of Gray’s normal
writing.

Furthermore, the
exemplars are not necessarily contemporaneous with the questioned signatures. Miller
testified that the closer in time an exemplar is written to the questioned
writing, the more accurate the analysis. (ET 65.) Yet seven of the exemplars
are undated, others were penned as many as seven or eight years before the
questioned signatures, and the only ones that are known to have been produced
within three years of the questioned signatures are the two lists of request
exemplars and a single signature from an unknown source dated November 20,
2007. (Exs. Compl.-A, -B, -F.) The non-contemporaneous nature of the exemplars
detracts from my confidence in the accuracy of the comparison.

Because it is
unclear where some of the exemplars came from, it is also unclear under what
circumstances they were written and whether the conditions surrounding their
execution were sufficiently similar to the questioned signatures to make the
comparison useful. Miller would not necessarily have known where the exemplars
came from because he did not collect any of them himself. Rather, the exemplars
were apparently collected by MSHA investigators. MSHA Special Investigator Guy
Fain obtained the request exemplars. Although Gray denied having a personal
relationship with Fain, he testified he has known Fain for about ten or twenty
years because they used to go to the same church and were involved in a prior
case together. (Temp. R. 88-90, 93-94.) Yet Miller testified he would normally
recommend against allowing a longtime acquaintance to take writing samples. (ET
50-52.) It is unknown what instructions Fain gave to Gray before he executed
the signatures or under what conditions they were written. As is the case with
all the exemplars, there is no information as to whether Gray was sitting down
or standing up when he wrote them, what surface he was bearing on, or whether
there was anything under the paper, and no information as to his physical state
or state of mind at the time. Miller testified that a multitude of conditions both
intrinsic and extrinsic to the writer can affect handwriting, (ET 83-87), so all
of the factors mentioned above could have affected the exemplars.

Given the
potential deficiencies in the exemplars and the uncertainties surrounding their
execution, it is not clear that they supplied Miller with sufficient
information to accurately delineate the bounds of the “normal curve” of Gray’s
widely variable handwriting. Miller also did not make any effort to delineate
those bounds in his testimony – he could have, for example, identified
distinguishing traits observed in Gray’s known writing that he would have
expected to see every time Gray executes his signature, but he did not do so.

An even more
significant problem is that Miller did not clearly explain what it was about
the questioned signatures that assured him to a high degree of certainty that they
fell outside the bounds of Gray’s normal writing. Miller testified that one “fundamental
dissimilarity” can be sufficient to rule a signature not authentic and that he
had identified several such differences in this case. (ET 71-72.) Yet he failed
to explain what makes a difference “fundamental” or even to offer any examples
of differences that generally qualify as fundamental, and he did not identify
which particular differences he had characterized as fundamental in this case.

Although Miller
did not provide an explanation for his key finding of several fundamental
differences, he did provide a letter-by-letter analysis of the questioned
signatures. He noted differences in the M’s, R’s, K’s, and the overall
appearance of the word “Gray.”

Miller testified
that the M’s in the questioned signatures were written more quickly than those
in the exemplars and had more of an embellished look, with a large loop on the
first stroke, and the two top humps were more wedge-shaped with a shorter than
usual middle stroke between them. (ET 25-26.) However, as Miller himself
suggested, the exemplars display broad enough variation to explain these
purported distinctions. As Miller noted, the M’s in the exemplars alternately
feature wedge-shaped, bowl-shaped, and printed humps, and at times the first
stroke features an embellished loop. (ET 25.) In addition, a contemporaneous known
signature of Gray’s that appears elsewhere in the record, his signature on the
June 17, 2009 statement he gave to Special Investigator Fain, features an M
that strongly resembles the questioned M’s in that its initial stroke begins
with an upward loop and its humps are small and wedge-shaped with a truncated
middle stroke. The fact that the M’s in the two questioned signatures look more
similar to each other than to any of the exemplars could be viewed as a sign
that they were written by someone else, but the similar-looking and
contemporaneous June 17, 2009 signature shows that the range of natural
variation in Gray’s M’s is broader than indicated by the exemplars and likely
broad enough to encompass the M’s in the questioned signatures. Furthermore,
the questioned signatures were purportedly penned within several months of each
other under very similar circumstances – if North Fork’s witnesses are to be
believed, both were signed in the mine superintendent’s office during a
disciplinary session. Similar circumstances and the contemporaneous nature of
the signatures could explain their similarity to each other. In sum, the M’s in
the questioned signatures do not appear so different from Gray’s known writing as
to constitute a “fundamental” difference.

Miller testified
that the lowercase R’s in the questioned signatures differed from Gray’s normal
writing style in that the top of each letter was bowl-shaped, which is common
for people who were taught cursive in the Zaner-Bloser style, whereas Gray’s
lowercase R’s were normally either wedge-shaped or flat across the top, which
is indicative of American Standard cursive. (ET 26-27.) Similarly, Gray’s known
writing usually features an American Standard cursive K, which is formed with
one continuous stroke that goes up, comes down, forms a “belly,” then “kicks
out” above the baseline. (ET 27.) By contrast, the K’s in the questioned
signatures were formed with two separate strokes, with the pen lifting to form
the belly and kick out, and in one of them the kick out was actually formed
using an unnecessary third stroke. (ET 27.)

Miller testified
that an unnecessary stroke is sometimes referred to as patching or retouching and
is commonly seen in cases where a person is trying to make a simulated
signature resemble a model signature. (ET 27-28.) If Miller was trying to imply
that the patching seen in this case is a sign of simulation, I am not
persuaded, because the patching does not in any way make the letter look more
like an American Standard cursive K or any of the other K’s within the spectrum
of Gray’s known writing.

I accept
Miller’s conclusion that the R’s and K’s in the questioned signatures do not
look like any of the exemplars. However, given the wide range of variation in
the exemplars, I am not convinced that the appearance of the R’s and K’s is an
indication of forgery rather than simply a manifestation of the tremendous
variation in Gray’s handwriting. It is true that when Gray sat down and wrote
out a list of request signatures all at the same time, he produced columns of
uniform signatures featuring wedge-shaped R’s and American Standard cursive K’s.
(Ex. Compl.-F, pages 9-10.) But the rest of the exemplars are not at all
uniform. Compare, for example, the rounded R and neatly formed K on page 13 of
the exemplar packet with the caret-shaped R and illegible K on page 16, then
compare both against the anomalous signature on page 18 in which a lowercase
cursive A is connected to an uppercase R followed by a standalone printed K. (Exhibit
Compl.-F.) In the same vein, looking just at the five exemplars that Miller
enlarged for demonstrative purposes on page 2, the lowercase R’s and K’s show a
variety of different shapes and stroke patterns. Id. These include
variations in the shape of the R; variations in the height, slant, and shape of
the first up-and-down stroke forming the back of the K; and considerable
variations in the shape of and connection between the belly and kick out on the
K. Given the variation in the known writing, it is not at all established that
the R’s and K’s in the questioned signatures diverge from Gray’s normal curve.

Miller also testified
that the word “Gray” in the questioned signatures differs from the exemplars in
that the Y’s are proportionately larger and the A’s are not intact. (ET 28-29.)
On review, however, there are a number of exemplars in which the A is not
intact or is only partially intact, including most of the request exemplars. The
A was not intact in the very first signature in the exemplar packet and Miller posited
that the questioned signatures were modeled after something like that, thereby
implicitly recognizing the similarities between the word “Gray” in the
questioned signatures and exemplars. (ET 28.) As for the Y’s, the Y’s in the
questioned signatures are proportionately larger than some, but not all of the
Y’s in the exemplars. Once again, Gray’s broad range of natural variation could
explain the differences. In addition, one of North Fork’s witnesses who was
purportedly present at the disciplinary meeting when the second questioned
document was signed, Countiss, testified that Gray “appeared to be angry” when
he signed it and “stood up over the paper, when he wrote it and slashed at the
end and threw his pen down, and kind of stomped out the door.” (Tr. 120,
135-36.) This testimony is entirely consistent with the jagged, slashing
appearance of the word “Gray” in the questioned signature. It is also
consistent with Estevez’s testimony that Gray was standing at the desk when he
received and signed that warning. (Temp. R. 279.) According to Miller, the
appearance of handwriting can be influenced by factors including the posture
and position of the writer and the writer’s state of mind. (ET 83-87.) Thus, if
North Fork’s testimony is to be credited, Gray was signing the document under
the stressful condition of a disciplinary meeting, which could have affected
his state of mind and therefore changed the appearance of his handwriting, and
he was standing up, which also could have influenced the appearance of the
writing and made it look different from signatures executed from the more
typical seated position.[10]
In sum, even if the word “Gray” in the questioned signatures did not appear to
fall well within the range of the natural variation seen in the exemplars, the
differences identified by Miller could be explained by the plausible factual
scenario North Fork has presented.

Miller testified
that the speed and slant of the writing also influenced his opinion. He
believed the questioned signatures were written with more speed than the
exemplars based on the fading of the terminal stroke, (the final upstroke of
the letter Y), in the questioned signatures. (ET 29.) Miller also testified
that the questioned writing had a more prominent right-handed slant than the
exemplars. (ET 30.) As discussed above, however, the appearance of the
signatures could have been affected by the circumstances under which they were
written. North Fork’s witnesses suggested at least one of the signatures was
written with a quick slashing motion while the writer was standing up. Miller
specifically stated that the positioning of the writer typically changes the slant
of the writing. (ET 86-87.) Although forgery is a possible explanation for the
apparent increase in speed and slant in the questioned signatures, North Fork’s
witnesses have suggested the plausible alternative explanation that the
signatures were affected by the circumstances surrounding their execution. Additionally,
the broad variation in Gray’s known signatures is again worth noting. The
exemplars appear to have been written with various degrees of speed and several
of them display a prominent right-handed slant. (E.g., Ex. Compl.-F,
pages 13-14.) I find that the slant and speed of the writing are not
fundamental distinctions that would compel or even strongly support a
conclusion of forgery.

Miller also testified
that the skill of the questioned writing, which he referred to as “line
quality,” was better than that of the exemplars. (ET 29-30.) He opined that
Gray’s known signatures demonstrated an immature type of writing indicative of
someone without much practice. (ET 30.) Although Miller did not expressly
identify skill level as a fundamental difference, he seemed to find it
significant, testifying at one point that the questioned signatures “are
actually better signatures than Mark Gray can possibly produce.” (ET 85, 88.) Yet
Miller did not explain how or why the appearance of the questioned signatures
led him to believe they had been executed with greater skill than the
exemplars. After reviewing the exemplars, I agree that many of them look as if
they were penned by someone who does not write much. This makes sense because
Gray is functionally illiterate. (Tr. 224-25.) However, it is still unclear
what led Miller to find that the questioned signatures were executed at a
higher skill level. To the untrained eye they simply look sloppier than Gray’s
normal writing. In addition, some of the exemplar signatures strike me as more
skillfully executed than others (e.g., those found on pages 13 and 14 of the
exemplar packet), although this is speculative on my part because Miller did
not provide any criteria to consider when assessing skill level. In sum, Miller
has not clearly explained how the “line quality” or apparent skill level of the
questioned writing influenced his analysis.

In
addition to Miller’s failure to convincingly explain how the numerous minor differences
described above translate into “several … fundamental differences” (ET 71), there
were other factors that he did not consider at all or failed to adequately
account for, which further detracts from the weight of his opinion.

First, I find it highly significant that
Miller did not consider how the conditions surrounding the signing of the
questioned documents could have affected the appearance of the questioned
signatures. Miller testified that numerous extrinsic and intrinsic conditions
can affect the appearance of handwriting, including the pen, the surface the
writer is bearing on, the writer’s position, the writer’s state of mind or
emotional state, drug or caffeine intake, stress, intoxication, being cold, and
many other factors. Yet he admitted he did not know the circumstances under
which the questioned documents were signed and did not ask about them. (ET
83-87, 105-06.) He declared there was no need to consider the surrounding
circumstances because if any extrinsic or intrinsic factors were in play, he
would have been able to see some sign of them in the signatures, but in this
case the “similarities and dissimilarities did not reflect any problems with
extrinsic and intrinsic characteristics.” (ET 105-06.) In other words, “you
have to find the evidence in the paper,” but there was nothing on the paper
that spurred his curiosity. (ET 88.) This explanation makes no sense. There is
no reason to think that a person examining a questioned writing can always tell
from the writing itself whether any external influences were at play.

Miller’s
stubborn refusal to consider that any extrinsic or intrinsic conditions may
have affected the appearance of the questioned signatures clashes with his
attitude at other times during the hearing. For example, he explained the lack
of variation in the request exemplars as being fairly typical because they
would have been written under the same intrinsic and extrinsic conditions,
unlike the rest of the exemplars. (ET 112.) Miller also immediately resorted to
extrinsic and intrinsic conditions to explain the appearance of the two
signatures he was confronted with for the first time at the hearing, testifying
that the tremulous appearance of the word “Gray” in one of the signatures could
have been caused by a rough writing surface or by the writer having too much
coffee or being nervous. (ET 80-81.) When Miller’s reluctance to admit that
extrinsic or intrinsic conditions may have affected the questioned signatures
is contrasted with his willingness to resort to such conditions as an
explanation for the appearance of writing in other situations, the contrast
suggests a certain defensiveness on his part. He seemed unwilling to admit he
may have overlooked something.

Another
factor Miller failed to address was the significance (or insignificance) of
Gray’s functional illiteracy. Presumably, an individual’s particular style of
writing is partly dependent on fine muscle memory acquired through repetition. Illiteracy
could disrupt this process.  However, it is unclear whether Miller was aware that
Gray was illiterate, and he did not say whether this factor had any impact on
his analysis.

Miller also failed to analyze any
aspects of the disciplinary warnings except the questioned signatures. The
original warnings were not submitted to the record. Miller took digital
photographs of the warnings but did not note the color of the ink or submit
color copies of the photos, and at the hearing he could not recall the ink
color or whether all the ink was the same color. (ET 39-42.) He at first
testified the color of the ink was not important, but later conceded it could
be relevant to an allegation that the documents had been written by the same
person at the same time. (ET 42-43.) This is the precise allegation Gray has
raised. Miller also did not test the type of ink on the warnings, although he
had equipment he could have used for that purpose. (ET 40.) Ink type, similar
to ink color, could have been relevant to Gray’s allegation that the documents
were written at the same time or to North Fork’s allegation that they were
written at different times by different people. Miller also did not analyze all
of the handwriting appearing on the warnings. He was asked only to determine
whether Gray’s purported signatures were genuine, not to determine who actually
wrote or signed the documents, and he could not offer any opinion as to when
the documents were written or whether they were written by the same person. (ET
49, 91-92.) But an analysis of the different handwriting appearing on different
parts of the disciplinary warnings could have been relevant to evaluating the
parties’ divergent accounts of how the warnings were written.

The indentations revealed by the ESDA
films are also relevant to the parties’ accounts of how and when the warnings
were written. Miller testified that portions of the writing from the April 29,
2009 warning were indented onto the February 27, 2009 warning, as is evident
from Exhibit R-30, but he failed to explain the significance of this finding. (ET
32-33.) The form on which each of the warnings were written consists of a set
of boxes that can be checked to indicate the type of warning that is being
issued, a section labeled “Explanation” where the issuing supervisor can write
in a description of the offense, and a signature block with spaces for the
supervisor, a witness, and the offending employee to sign and date the form. The
February warning is marked as a verbal warning issued for substandard
performance and bears Gray’s undated signature and the signature of former mine
superintendent Ison dated February 27.[11]
(Ex. Compl.-B.) The April warning is marked as a final written warning for
substandard performance and bears the signatures of mine superintendent
Estevez, foreman Countiss as witness, and Gray, all dated April 29.[12]
(Ex. Compl.-A.) The dates next to Estevez’s and Gray’s signatures seem to be
written in the same handwriting. Id. The “explanation” sections of the
two warnings appear to bear different handwriting, although Miller did not
offer an opinion in this regard. The following handwriting from the April
warning is indented onto the February warning: almost all of the handwritten
“explanation” section; Estevez’s partial signature and the date next to his
name; the date next to Gray’s name in the signature block, which is not
perfectly aligned with the other indentations, indicating the paper was rotated;
and another partial misaligned blurb, which Miller identified as part of Gray’s
signature but which actually appears to resemble part of Countiss’s signature
or some other unidentified writing. (ET 47-49, 97-98, 110; Ex. R-30, page 4.) Other
unidentified indentations are present on both documents that read: “Copy
these. Label as examples of documents viewed by handwriting expert Section

,” and “Copy first two pages. Call them Section #7.” (Ex. R-30.) Presumably

these are from the litigation. Miller did not discuss them.

Gray contends that the indented writing
from the April warning proves that (1) Estevez and Countiss lied about the
circumstances surrounding the issuance of the April warning, and (2) the two
warnings were not prepared on the dates they purport, but presumably after Gray
was fired. (Posthearing Br. of Mark Gray, 24, 28.) However, the indented
writing proves neither of these allegations.

With regard to the first allegation,
Countiss’ and Estevez’s testimony was as follows. Countiss testified that he was
called to Estevez’s office for the disciplinary meeting; Estevez was sitting
behind the desk and Countiss was beside it; Estevez spent about 15 to 20
minutes explaining the contents of the April disciplinary warning to Gray
before handing it to him; Gray angrily signed it with a slashing motion and
stomped out of the room; then Countiss signed it at the end of the meeting. (Tr.
109-14, 118-20, 135-36.) Estevez testified he believed he had filled out the
boxes and explanation section at the top of the warning the day before calling
Gray and Countiss into the office for the disciplinary meeting; afterward, he
had handed the warning to Gray, who was standing in front of the desk, and
asked him to read it and make sure everything they had discussed was written
down; Gray had signed it and handed it either to Estevez or to Countiss, who
was standing next to the desk; Countiss signed it and handed it back to
Estevez; then Estevez signed it and dropped it into Gray’s file in the drawer. (Temp.
R. 278-90; Tr. 37-46, 50.) Estevez did not recall whether there was anything
under the April warning when he filled it out, but he specifically denied that
the February warning was under it. (Temp. R. 284; Tr. 44-46, 50-51.) Although
the personnel files are in his office, he did not recall looking at Gray’s file
before writing the April warning or becoming aware of the February warning
until later. (Temp. R. 286-90; Tr. 46-50.)

After reviewing the testimony, I find
that Countiss and Estevez have given largely consistent and credible accounts
of the purported disciplinary meeting. The only discrepancy is Estevez’s
testimony that the February warning was not underneath the April warning, which
is disproven by the indentations. But I do not find this discrepancy fatal to
Estevez’s credibility. He indicated throughout his testimony that he did not
recall the disciplinary meeting with perfect clarity and was basing his account
in part on his knowledge of the way he usually conducted such meetings, and I
find that his testimony was not inconsistent with what a supervisor would be
expected to remember or forget about a routine disciplinary matter. He could
have had Gray’s personnel file or a piece of the file on his desk underneath
the April warning and simply not remembered that fact when he was called to
testify months later. The February warning could have been under another piece
of paper in the file, which would explain how the indentations were transferred
to the February warning without his knowledge of that warning being on his desk.
If I assume that Estevez was simply mistaken about the February warning not
being on his desk at the time the April warning was executed, the indentations
are entirely consistent with a scenario wherein Estevez filled out the top part
of the April warning while it was sitting on top of the February warning,
resulting in the transfer of the indentations from the “explanation” section;
Estevez then passed it to Gray, who signed it without dating it, and Countiss,
who signed and dated it; then Estevez signed and dated it, if he had not
already done so, and wrote in the date next to Gray’s name, transferring those
indentations onto the February warning. The indentations do not decisively
establish that this scenario occurred, but it seems at least as plausible as
Gray’s allegation of forgery, which would require me to assume that the
warnings and the witnesses’ testimony were all part of an elaborate, rapidly
orchestrated conspiracy to frame Gray for poor performance.  

As for Gray’s allegation that the documents
were not prepared on the dates they purport, the indented writing clearly does
not prove this. It also fails to prove that the documents were prepared at the same
time or that they were prepared after Gray was fired. In fact, the indentations
do not reveal any information about the dates the warnings were written except
to confirm that the April warning was probably written after the February
warning, as it was lying on top of the earlier-dated document. (ET 49.) This
does not advance Gray’s forgery claim.

Another factor I have considered in
assessing the weight of Miller’s testimony is the objectivity of his analysis. North
Fork argues that Miller was exposed to information which could cause bias in
that he was hired by Gray’s attorney and assumed Gray disputed the authenticity
of the questioned signatures. (North Fork’s Br., 10-11.) Miller’s testimony
confirms that he assumed his client was claiming the signatures were forged. (ET
34.) This knowledge exposed Miller to the risk of confirmation bias. Although
it is impossible to tell whether or to what extent confirmation bias may have influenced
his opinion, there were subtle signs that Miller may not have viewed the
evidence in an appropriately objective light. One telling factor was his
reluctance to consider the potential effects of the extrinsic and intrinsic
conditions surrounding the execution of the questioned documents, discussed
above. When North Fork’s counsel confronted Miller with two previously unviewed
signatures at the hearing, Miller’s reaction raised further doubts about his
objectivity. Miller appeared very reluctant to examine the signatures on the
stand. He referred to the author of one of the signatures as “they” and seemed
to assume it was forged, although it was not. (ET 75-81.) North Fork characterizes
Miller’s reaction to the new signatures as a “confusing monologue” that failed
to generate confidence in his ability to analyze signatures. (North Fork’s Br.,
12.) I agree. I also find that his reaction evinced defensiveness and a lack of
scientific objectivity, in that his demeanor suggested he was trying very hard
not to say anything that would damage his client’s position or undercut his own
previously stated opinion. Defensiveness does not reflect favorably on Miller
as an objective expert witness or as a scientist.

I also note that Miller did not keep any
notes about his lab work other than the brief report he submitted to the court.
(ET 73.) Thus, his conclusions were subject to post-hoc rationalization. This
does not necessarily mean that he reached a conclusion first and conducted the
analysis later, which obviously would be improper. However, it would have been
reassuring if at the time he issued his opinion he had provided something
beyond the terse summary of his analysis that appears in his report.

Miller’s
conclusion that the signatures were forged was not definitive. He said his
confidence level was to a “high degree of probability” or “a notch below
certainty.” (ET 32-33, 88-89.) He did not adequately explain how he reached
this high degree of confidence. He did not identify any error rate for the
methodology he applied. He noted that the wide range of natural variation in Gray’s
writing affected his confidence level, but he did not clearly explain how he
accounted for the variation or exactly how it affected his degree of confidence.
Miller also testified that as a statistician, he is opposed to ever saying he is
100% certain of any conclusion. (ET 89.) Presumably he meant to say that he
tends to err on the side of caution, but this seems to be an arbitrary way of
quantifying a confidence level and is inappropriate as a scientific opinion.   

Miller testified his opinion was
corroborated by two other FDEs, both of whom expressed a stronger opinion than
Miller that Gray could be excluded as the writer of the questioned signatures. (ET
71-72, 102-03.) However, their purported corroboration of Miller’s opinion is of
limited probative value here, since their opinions are not before me, they were
not subject to confrontation by North Fork, and I lack the information
necessary to evaluate their credibility. Although hearsay is admissible I place
very limited weight on it under these circumstances. The only other opinion
before me is Peter J. Belcastro’s report, which was submitted with Gray’s offer
of proof at the 2010 hearing. Belcastro found that inconsistencies between the
known and questioned signatures indicated Gray “may not have prepared” the
questioned signatures, but “[d]ue to the presence of unexplained
characteristics, the nature of the questioned and known signatures, and
characteristics of possible simulation, tracing, or distortion, a definite
determination could not be reached.” (Offer of Proof #2.) This opinion does not
corroborate Miller’s conclusion or his level of confidence.

A computer analysis could well have lent
credibility to Miller’s conclusions. Miller testified that computer programs like
Cedar Fox, the software he uses, contain a database of thousands of handwriting
specimens. (ET 68.) The examiner can enter a questioned signature into the
database along with other similar signatures, and the computer will come up
with three or four potential matches that the examiner then eyeballs to come up
with a final match. (ET 68-69, 99-100.) The success rate or confidence interval
is about 98%. (ET 69, 99.) However, Miller said that he did not need to conduct
a computer analysis here because this was a simple case. (ET 107.) He further
testified, “I know what the computer is looking for because … I’ve had training
under Sargur Srihari, who designed the program,” and thus it was more time-effective
“to just do it the old fashioned way without the computer.” (ET 107-08.) This
may be true, but the value of a computer analysis is that the computer program
has a known error rate and must apply the same algorithm in each case to reach
its conclusion. This provides a measure of quality control and an assurance of
consistency that are lacking from human judgment calls.

For all the reasons discussed above, I
find that Miller’s testimony does not establish to a high degree of probability
that the questioned signatures were forged.

D.    Conclusions

In weighing expert
testimony, the Commission has stated that a judge may consider factors such as
the expert’s credentials, the scientific bases for the expert’s opinion, and
how objective and convincingly stated his testimony is. In
re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1843 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone
Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); Cyprus Tonopah Mining
Corp., 15 FMSHRC 367, 372-73 (March 1993); ASARCO, Inc., 14 FMSHRC
941, 949 (June 1992).

Miller’s credentials are sound.
His training and experience, particularly his completion of the U.S. Secret
Service’s training courses for forensic document examination and his decades of
experience working as an FDE for the state of Tennessee, make him
well-qualified to testify as an FDE in this case. However, I accord low
probative weight to Miller’s opinion for the following reasons.

First, the probative value
of Miller’s opinion is diminished to the extent its scientific bases have not
been proven reliable. As detailed above, the evidence before me does not
establish that the theories and techniques underlying handwriting analysis have
been validated through rigorous empirical testing and peer review and
publication. Although there is some support on the record for the common-sense
principle that handwriting is individualistic, the evidence does not give me a
clear sense of whether any FDE could reliably perform the task that Miller
faced, namely, determining whether two signatures containing a total of just
six distinct characters fall within Gray’s very broad range of natural
variation. The error rate for this task is unknown. Miller did not articulate the
objective standards he followed in performing this task. It appears that
handwriting analysis in general lacks generally accepted governing standards. This
permits a troubling degree of subjectivity to enter into handwriting experts’
opinions, giving rise to a potential for bias and somewhat obscuring the
reasoning behind such opinions. In short, handwriting analysis is not the type
of technique that produces scientifically reliable results.

Given my lack of confidence
in the reliability of Miller’s conclusions, the most helpful part of his
testimony was not his ultimate opinion but the information he provided about how
he reached that opinion, particularly his description of the differences he
observed between the questioned signatures and the exemplars. But Miller did
not convincingly explain how these differences, which included differences in
letter formations and in traits such as slant, speed, and skill level, led to
the conclusion that the questioned signatures were forged. He did not explain
how he defined the normal curve of Gray’s writing. It is not clear that the
exemplars were sufficient to allow him to do so, especially considering the
high degree of natural variation in Gray’s writing. Miller did not adequately
explain how he accounted for this problematic level of natural variation. He also
did not identify the fundamental differences that he cited as signs of forgery
or explain how he distinguished them from Gray’s natural variation. He failed
to consider potentially significant factors such as the effect of intrinsic and
extrinsic conditions on the appearance of the handwriting. He did not explain
the significance of his conclusions with regard to the indentations revealed by
the ESDA films or how they support his finding of forgery. In addition, Miller
was exposed to information that could cause bias and displayed subtle signs at
the hearing that he did not view the evidence completely objectively. Finally,
Miller also failed to adequately justify the high level of certainty he
expressed in his opinion.

For all the reasons
discussed above, I find that Miller’s testimony does not establish that the
February 27 and April 29 disciplinary warnings were forged. I find that these
warnings are authentic and were issued to Gray on the dates alleged.

E.     Effect on Prima
Facie Case

A complainant alleging discrimination
under section 105(c) of the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a
conclusion that (1) he engaged in activity that is protected under the Mine
Act, (2) he suffered an adverse employment action, and (3) the adverse action
complained of was motivated in any part by the protected activity. Gray v.
North Fork Coal Corp., 35 FMSHRC 2349, 2355 (Aug. 2013), citing
Turner v. Nat’l Cement Co. of California, 33 FMSHRC 1059, 1064-67 (May
2011); Sec’y 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 on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). To
rebut a complainant’s prima facie case of discrimination, the mine operator may
show either that no protected activity occurred or that the adverse action
taken against the complainant was in no part motivated by his protected
activity. Gray, 35 FMSHRC at 2355, citing Robinette, 3 FMSHRC at
818 n.20.

Gray takes the position that Miller’s
testimony impeaches the testimony of North Fork’s witnesses, and requests that
I now find that North Fork has violated the Mine Act. In making this argument
Gray relies largely on the points set forth in the Commission’s decision,
wherein the majority speculated that Miller’s testimony could lead me to
overturn most if not all of my prior credibility determinations and thereby
reach a different outcome.

I do not find that the disciplinary
warnings or Miller’s testimony play the central role Gray envisions in
establishing his prima facie case although I have rejected Miller’s
testimony and found the written documents authentic. Aside from the expert handwriting
evidence, the entirety of the evidence Gray has presented in support of his prima
facie case is as follows: his own testimony; Exhibits Compl.-A and -B,
which are the two disciplinary warnings; the testimony of Anthony Estevez and
Stephen Countiss, who were called as adverse witnesses to discuss their
signatures on the April disciplinary warning and the circumstances surrounding
its issuance; Exhibit Compl.-C, which is a written statement given by Russell Ison
to MSHA investigators to the effect that he issued the February warning to Gray
for poor work performance; and the testimony of MSHA Inspector Kevin Doan, who
said he did not recall making a comment about how slowly Gray was working the
day he was fired. Of this evidence, the only direct evidence Gray has presented
to support the first requisite element of his prima facie case, the
element of protected activity, is his own testimony.

Gray notes that direct evidence of
discriminatory motive is rarely available and theorizes that Miller’s testimony
regarding the alleged forgery is the essential cog proving that a violation of section
105(c) of the Mine Act occurred. (Posthr’g Br. for Mark Gray, 28-29.) It is
true that direct evidence of discriminatory motive is rarely available, but the
same cannot be said of direct evidence of protected activity. Assuming arguendo,
Gray’s theory – the theory that forgery corroborates his entire prima facie case
– it would require me to reason that (1) because the documents were forged, mine
management must have been trying to cover up a hostile or retaliatory motive to
fire Gray; (2) the hostility must have been provoked by protected activity
under the Mine Act; and (3) therefore, Gray has established that the protected
activities he alleges did in fact occur. This inferential line of reasoning is
attenuated at best and fails to persuade.

The Commission opined in its majority
decision having left open the possibility that the documents were forgeries
found my evaluation of the witnesses’ credibility was lacking and that the
testimony of the expert witness may materially affect that evaluation. I will,
therefore, set forth below a summary of each of the witnesses’ pertinent
testimony and address with greater specificity how I determined the credibility
of each witness. My analysis of the credibility of the witnesses with regard to
the written counseling warnings is set forth above and will not be repeated; it
will be contained to the remained of the testimony provided by each witness. My
analysis goes beyond a finding that each of the witnesses for North Fork
corroborated one another although that is one factor always properly considered
in such an analysis. My determination of credibility is based upon an
exhaustive review of the record, my observations in hearing of each of the
witnesses’ comportment, and their possible biases and motivation to provide the
testimony they gave. I have also compared the testimony to the documentary
evidence (the witnesses’ written statements) and considered the time at which
the documents were prepared and under what circumstances.

Because the establishment of a prima
facie case is inextricably interwoven with the assessment of Gray’s
credibility as well as that of North Fork’s witnesses’ claims of substandard
performance, I will discuss their testimony regarding the alleged incidents of
protected activity and Gray’s performance without differentiating between the prima
facie case and evidence of an affirmative defense. I find this necessary
because there is no evidence of the protected activity alleged save for Gray’s
assertions, which makes his credibility essential. In order to find he has
established a prima facie case, there must be sufficient evidence
to support a conclusion that he engaged in protected activity which, at least
in part, resulted in the adverse action alleged. See Turner v. Nat’l Cement
Co., 33 FMSHRC at 1064-67. I interpret the meaning of “sufficient evidence”
to mean sufficient credible evidence.

III.            
SUMMARY
OF TESTIMONY

Mark Gray

Gray testified at hearing that he has
been a roof bolter for 17 years with mining experience totaling 29 years and
has worked for 30 different mines during that period of time. (Tr. 166.)

Gray had worked the day shift on the 001
section since the summer of 2008 after being transferred from the night shift
on the same section where he had worked since the winter of 2007. (Tr. 171-73.)
The roof bolting machine he operated was a two-person bolter; he was on the
operator’s side which made it primarily his responsibility to hang the
ventilation curtains as the bolter advanced. (Tr. 178.) The ventilation plan in
effect at the time allowed for 40 foot cuts on a four foot bolting pattern. (Tr.
180.) He and his roof bolting partner, Chris Sheeks, would each install a bolt
in the middle of the roof and then swing the boom of the bolter out installing
bolts on either side of the middle bolts and then tram the bolter four feet
forward and repeat the process in subsequent rows. (Tr. 181.)

In the March 2009 time frame, Anthony
Estevez was the mine superintendent and Steven Countiss was the mine foreman. (Tr.
176.) Thomas Cornett was the 001 section day shift foreman. Gray he could not
recall how long he had been working for Cornett. (Temp. R. 24.)[13]

On June 15, 2009, Gray filed a
discrimination complaint stating, “I feel I was terminated because I refused to
roof bolt an entire cut through of about 60 feet plus in depth. I also made
safety complaints.” (Temp. R. Ex. R-1.) He told MSHA investigator Guy Fain that
his complaint was based upon two alleged deep cuts of 60 feet that he was told
to bolt; the first one he did, the second one he refused. (Temp. R. Ex. R-2.) He
also later alleged a complaint about hanging ventilation curtains. (Temp. R.
Ex. G-1.)

The First Deep Cut

Gray testified that he was told by his
foreman, Tom Cornett, to bolt a cut that he estimated to be about 56 to 60 feet
deep. (Tr. 182.) Although he never provided a date on which he bolted this deep
cut, he stated that it was three days before a second alleged deep cut was made,
which occurred one week before he was fired. (Tr. 188, 191, 203.) Gray was
fired on May 15 which would indicate this first deep cut occurred on or about
May 5. Cornett told him and Sheeks that the cut needed to be made for
ventilation purposes and he told them to bolt it. (Tr. 184.) Gray stated that
he was “job scared” and bolted the cut although he believed the roof was
dangerous. (Tr. 183, 188.) He stated that it took 14 rows of bolts to complete
the cut which would mean the cut was 56 feet deep on a four foot bolting pattern.
(Tr. 182.) He testified that he told Cornett after bolting the deep cut that he
was not going to do it anymore. (Tr. 183.) He described Cornett’s reaction as
walking off in a huff without saying anything. (Tr. 183.) Thereafter, he said,
Cornett just ignored him. (Tr. 183-84.) He changed his testimony and stated
later that he said nothing about bolting this first deep cut to anyone – not
Sheeks, not Estevez, not Countiss and not Cornett. (Tr. 213-14.)

The Second Deep Cut

Gray testified that a few days after the
first deep cut was made, a second one was mined on the 002 section. (Tr. 185.) He
thereafter stated it was on the 001 section.[14]
(Tr. 186.) The cut, he said, was 50 to 60 feet deep which he could tell just
from looking at it. (Tr. 187.) He testified that it was in the #4 cross cut
which had been punched all the way through. (Tr. 187.) He told Cornett to his
face that he was not going to bolt it because the top had too much swing in it.
(Tr. 188, 214.) Sheeks was with him and heard him refuse to bolt this cut. (Tr.
209.) Cornett then told him and Sheeks to bolt in another area beside this
crosscut. (Tr. 185, 216.) Gray further said that Sheeks, like Cornett, would no
longer speak to him after this incident. (Tr. 184-85.) Although there was only
one other bolting crew on the day shift with Gray, he testified that he had no
idea who would have bolted this alleged second deep cut if he and Sheeks did
not. (Tr. 217.) When asked who the other two roof bolters on his crew were, he
initially answered by saying he could not even recall their names; he could
only do so after their names were suggested by counsel for Respondent. (Tr.
216.)

Gray testified at the temporary
reinstatement hearing that he did not see who made either of the deep cuts. He
stated the miner man’s name who would have made the cut was Steve. (Temp. R. 80,
91-92.)

When asked if Gray was aware of deep cuts
being taken in Kentucky in his 30 years of mining experience in Kentucky, he
said it was not unusual. (Tr. 189.) Upon further probing by the Respondent’s
counsel, Gray could not “recollect” how many mines he had worked in that took
deep cuts. He never reported any of these violations to MSHA. (Tr. 202.) He
stated he had bolted a deep cut but he did not have “a number that comes to
mind” when asked how many times this occurred. (Tr. 202.)

Hanging Curtains

Gray testified at hearing that the issue
of hanging curtains, which he alleges was part the general “other safety
issues” he put in his original discrimination complaint, occurred on the same
day as the second deep cut that he refused to bolt which was one week before he
was fired. (Tr. 203.) Gray said he was not required to advance the curtain
after each row of bolts was installed. He would do so every 2½ rows, or 10
feet. (Tr. 209-10.) He moved the curtain as required, he said, and was never
criticized for failing to do so. Tr. 210.) Gray said that he had stopped to
hang curtains and Cornett mumbled something to him and just walked off as he
had done with regard to bolting the deep cuts. (Tr. 204.) Again, Gray could not
identify what Cornett said, and had no idea if it was because Cornett did not
want him to hang the curtains. (Tr. 204.) Nor did he know if he was fired in
part because he hung a curtain that Cornett did not want him to hang. (Tr. 207.)
Gray insisted that Cornett never got after him for not hanging curtains before.
(Tr. 209.) In fact, he was never criticized by Cornett for anything concerning
his work performance. (Tr. 210-12.) Gray told Investigator Fain that the mine
is gassy and the methane sensors on the bolter would often shut it down at a reading
of 2% which happened often if the curtain was not properly advanced. (Tr. 156;
Temp. R. 26; Temp. R. Ex. G-1.)

When Gray was asked why he did not go
higher up the chain of command than Cornett in reporting his complaints, he
stated that “Mr. Cornett was the one that I needed to go to first.” When asked
why he did not report his complaints to Estevez, he responded, “Because Mr.
Cornett would have handled it. I thought Mr. Cornett would have handled it.” (Temp.
R. 95-96.) Gray confirmed that he had known Investigator Fain for 20 years from
attending the same church. (Temp. R. 89.) He also testified that he knew
Inspector Harris, Fain’s supervisor, for about 10 years. (Temp. R. 89.) He
explained Harris called him as a witness in a federal court case where a mine
was charged with “mining out of law” and ventilation violations. (Temp. R.
96-97.)

Gray confirmed that MSHA inspectors were
in the mine every other day but he said nothing to them about the deep cuts. (Tr.
220.) In addition to being acquainted with Fain and Harris, he was also
acquainted with MSHA inspector Silas Brock and spoke to him quite often at the
mine. (Temp. R. 32, 78.) He did not report his safety concerns to any of them.

Gray’s Termination

At the end of the shift on May 15, Gray
was approached by a scoopman as he was coming out of the drift and was told
Estevez wanted to see him in his office. (Tr. 191.) When he got there Estevez
told him he needed his rescuer because he had to let Gray go. When Gray asked
why, Estevez replied that it was because “people had complained about him.” Gray
asked who had complained and Estevez replied he could not tell him but he would
believe his foreman over Gray. Gray then walked out, got into his truck and
went home without comment. (Tr. 192.)

Guy Fain

MSHA Investigator Guy Fain was assigned
to investigate Gray’s claim of discrimination by his superior, Gary Harris. (Temp.
R. 101.) He testified that Gray did not mention curtains in his initial complaint.
(Temp. R. 102.) In pursuit of his investigatory duties, Fain interviewed
Anthony Estevez on June 23, 2009. (Temp. R. 108; Ex. R-11A.) Among other
things, Estevez told Fain that he and Cornett had discussed problems with
Gray’s performance such as slowing down, burning up bits and not putting
pressure on the drill to install bolts. (Temp. R. 109.) These issues led to
Gray’s termination. (Temp. R. 110.) Fain did not ask Estevez anything about the
curtain complaint. (Temp. R. 111.)

Fain also interviewed Thomas Cornett,
the section foreman. (Temp. R. 111.) Cornett told Fain that Gray never made the
alleged safety complaints to him about bolting deep cuts. He denied deep cuts
ever being taken in the mine. Cornett stated that he had given Gray a verbal
warning for not spot-bolting and not hanging curtains. (Temp. R. 113.) He said
Gray was a slow worker and was off task when he was supposed to be moving the
drill or putting up curtains. (Temp. R. 113.)

The other crew members on the 001
section, William Peak, William McFarland and Jerry Lynn Hall, also provided
information that Gray was not a good worker. They denied ever seeing or hearing
about deep cuts or hearing Gray complain about safety issues. (Temp. R. 116-22.)

After interviewing Cornett, Fain returned
to Gray’s home on July 31 to ask him if he had any other safety complaints. (Temp.
R. 124-25.) Specifically, it was Tom Cornett’s comments about Gray not hanging
curtains that first brought up the question about curtains and caused Fain to
return to ask Gray about them. (Temp. R. 124-26.) At no time prior did Gray
mention curtains to Fain. (Temp. R. 126.)

At
trial, Fain was asked to elaborate on Gray’s comments about the curtains. Fain
stated that Gray told him he had to rehang curtains because the curtains would
be pulled down sometimes when tramming the bolter and it would shut the miner
off due to a buildup of methane. (Temp. R. 138-39.) Gray further told Fain that
he was directed by his foreman to hang the curtains. (Temp. R. 139.) Fain
stated that if the curtains were not put back up, there would be a safety issue
and confirmed that if the foreman told them to reinstall them, as Gray said, it
would be to improve safety. (Temp. R. 140.) When Fain was asked how Gray’s statement
that Cornett directed him to hang the curtains could be construed as a safety
complaint, he could not do so. (Temp. R. 141.) Fain had reported in his summary
of interview from July 31 that Gray said “he had complained several times about
mine ventilation curtains not being up to Tom Cornett, the section foreman.” (Temp.
R. 142; Temp. R. Ex. G-1.) Gray further said he had complained to two other
foreman about the curtains, one of whom he could only identify as “Moondog” who
told him to just shut down the machine and hang the curtains. Gray went on to
say, Cornett seemed to get mad if Gray shut down to hang them but the machines
would shut off by themselves if he did not. (Temp. R. 142-43.) Fain testified
that he thought Gray must have had a dispute about whether he should shut the
machine down or let the methane monitor shut it down when he did his curtain
work to explain how the curtain issue could be interpreted as a safety
complaint. (Temp. R. 156.)  

Fain also spoke
to other regular mine inspectors William Clark, Kevin Doan and Silas Brock as
to whether they had ever seen deep cuts in the mine. None had. (Temp. R.
128-29.) Doan had reported to Investigator Sturgill that he (Doan) was at the
mine and watched Gray roof bolting on the day Gray was fired. (Temp. R. 132.)

Stephen Countiss

Stephen Countiss was the day shift mine
foreman from November 2008 to March 2010. (Tr. 123.) He observed Gray on an
occasional basis and found him to be a slow worker. He saw Sheeks waiting for
Gray to catch up. (Tr. 124.) Sheeks complained to him about Gray’s work
performance because he was concerned it might affect his job as well. (Tr. 125.)
The other bolting crew complained because they had to shoulder more of the load
when Gray and Sheeks would not do as much. Cornett also complained to him about
Gray. (Tr. 126.) Cornett had asked Countiss to speak with Gray about hanging
the curtains because Gray was not doing it as required. (Tr. 126.)

Countiss
stated that he was underground almost every day and never saw a 56 foot cut nor
had anyone ever told him about or complained of a deep cut. The mine was on a
40 foot plan but it had been a long time since anyone had attempted a cut of
that depth because the roof was in poor condition. (Tr. 126.) Gray had never
made a complaint about a deep cut nor did he ever complain to him about
anything regarding ventilation curtains. (Tr. 128.) Once Gray was fired and
replaced, the production picked up considerably. (Tr. 129.)

Countiss
was aware of Gray having been counseled by Russell Ison on February 27, 2009
for his performance. Ison told him that it was a verbal warning so it was not
signed by a witness. (Tr. 116; Ex. Compl.-B.) Countiss stated that Ison was
mistaken if he said that he (Countiss) was not present when this verbal warning
was given to Gray. Countiss recalled an additional written warning given to
Gray a couple months before Ison issued the verbal warning in February. It was
for substandard performance. (Tr. 121.) Countiss, Ison and Gray signed this
document but Countiss did not know what happened to it. (Tr. 121-22.) This
warning should have been in Gray’s personnel file but it could not be located. (Tr.
133-35.) Countiss believed Ison gave Gray a copy of this warning. (Tr. 120.)

Countiss
was a witness to the final counseling given to Gray on April 29, 2009. (Tr. 118;
Ex. Compl.-A.) He did not recall Estevez speaking to Gray about any of the
prior warnings at this meeting. Countiss could not recall whether he had
informed Estevez of Gray’s prior counseling before or after Gray’s termination,
but he did tell Estevez about it at some point in time. (Tr. 117.) Countiss did
not know if there were any documents on Estevez’s desk when he had Gray sign
the April warning. (Tr. 118.) What he did recall was that Estevez was at his
desk when he talked to Gray about his performance. (Tr. 111, 114.) Countiss
watched Gray sign the document. Gray was standing over the document and signed
his name with a slashing motion at the end, threw the pen down and stomped out
the door. (Tr. 120.) As Countiss recalled, Gray did not take a copy of the
letter with him. (Tr. 120.) After Grey left the room, Countiss signed the
document as a witness. (Tr. 110-11.)

Following
Gray’s termination and filing of the discrimination complaint, Countiss was
interviewed by Fain and signed a written summary of interview. (Ex. R-12.) In his
statement, he did not mention the earlier written warning to Fain. (Tr. 131.) He
also did not tell Fain that the other crew and Cornett complained about Gray’s
performance because he was not asked that question. (Tr. 132. He did state that
Sheeks complained about Gray, however. (Tr. 132.) He was asked if he had any
personal issues with Gray to which he responded in the negative. (Tr. 133.)

Countiss
stated that there was no progressive disciplinary system at the mine that he
knew of. He had never personally been asked to fill out the pre-printed
disciplinary form and did not know how they were to be filled out. (Tr. 136-37.)

Chris
Sheeks

Sheeks
had been employed by North Fork since 2005 and was trained as a roof bolter by
Mark Gray. (Tr.II 61, 81.) He and Gray operated a dual-headed bolter. (Tr.II
62.) The other roof bolter on the shift was operated by William Peak and
“Snappy.” (Tr.II 62-63.) It was the roof bolters’ responsibility to hang
curtains within four feet of the back of the drill. (Tr.II 63.) It was
primarily Gray’s responsibility to do this. (Tr.II 63.) As Sheeks trammed the
drill forward, the curtain had to be rolled up and then dropped back down which
was Gray’s responsibility but he did not do it; Sheeks had to. (Tr.II 68-69.) He
would have to drive the drill, throw the miner cable over, and roll up the
curtain himself while Gray would be standing around talking. (Tr.II 80.)

Sheeks testified that Gray was lazy and
very slow. (Tr.II 64.) He and Gray bolted about 1½ places to every five or six
done by the other team in the same amount of time. (Tr.II 64.) Sheeks had
observed Gray spin the drill without putting pressure on it on a few occasions.
(Tr.II 65.) Cornett had often spoken to them about picking up production and
moving faster. (Tr.II 66.) Estevez and Countiss had also spoken to them about
their production being too slow. (Tr.II 67.) This led to Sheeks asking both
Countiss and Estevez to change bolting partners so he would not get fired for
Gray’s poor performance. (Tr.II 67-68.) Gray’s performance resulted in the
other bolting team having to bolt more places to pick up their slack, the third
shift having to finish the job or their having to finish the following day. (Tr.II
68.)

Sheeks
testified that Gray told him that he had been written up three or four times,
once by Estevez and the other times by Russell Ison. (Tr.II 69, 90.) Gray said
he was written up once for not having enough cable to move the drill which
would stop production until the cable was pulled and hung up so the rest of the
equipment could operate. (Tr.II 70-71.) On another occasion, Sheeks and Gray
were brought to Estevez’s office with Steve Countiss for disciplinary reasons. (Tr.II
71.) Cornett was present as well. (Tr.II 71.) Estevez showed them a production
report that tracked the number of bolts installed by the other bolting team
compared to their numbers. They were told to pick up their pace. Gray remarked
to Sheeks that the other team was lying about their numbers and he could not
work any faster. (Tr.II 72.) Sheeks met with Estevez a second time without Gray
to ask Estevez to move him to another crew or give him a new roof bolting partner
because he did not think it was right that he was being reprimanded for Gray’s
poor performance. (Tr.II 72-73.)

Gray
had told Sheeks that the company could not fire them because it had a bad name
and they could not get anyone else to work for them. Gray further stated that
he would sue them if he could not get unemployment. (Tr.II 74.) Gray stated
that he kept an attorney on retainer. (Tr.II 75.)

Sheeks
had never seen a cut of 50 feet or deeper in the mine, he had never heard Gray
refuse to bolt a cut of 50 feet or deeper and he had never heard Gray make any
complaints about the company not keeping the curtains up. (Tr.II 76.)

Sheeks
had observed Gray put up four foot rope bolts which are designed to allow the
roof to move. It took Gray 30 to 45 minutes to install one bolt whereas it
should take two or three minutes. (Tr.II 79.) Sheeks described Gray as being
able to do his job well if he chose to but he was lazy. (Tr.II 105-07.)

On
the day Gray was fired, Estevez and an MSHA inspector came to the 001 section
while Sheeks and Gray were in the number one entry installing the first row of
bolts. The drill they were using had a new feature on it; it was the only one
in the mine with rock guards. (Tr.II 78.) A few hours later Estevez and the
MSHA inspector returned at which time Sheeks and Gray had installed about seven
bolts. They should have had about 70 bolts installed in that amount of time. (Tr.II
77.)

Jerry
Lynn Hall

Hall was the continuous miner operator
for North Fork on the 001 section day shift for approximately three years. (Tr.II
13.) He had been a miner operator for seven or eight years with 26 years of
mining experience. Hall testified that he was the only miner operator on the
day shift. (Tr.II 9.) Hall was not specifically aware of Gray being written up
and warned however he had heard “hearsay” to that effect. (Tr.II 15.) Hall had
never heard Gray complain about or refuse to bolt a deep cut. The typical cuts
in that mine were 20 feet. (Tr.II 7.)

William
“Snappy” McFarland

McFarland was a roof bolter on Gray’s
shift. (Tr.II 22.) The depth of the cuts in the mine was never in excess of 20
feet. (Tr.II 22-23.) He had never seen cuts in excess of 50 feet nor had he
heard of anyone saying there had been any such cuts. (Tr.II 23.) He described the
general condition of the roof as pretty bad. If a cut of 50 feet had been made,
there would be a lot of draw rock falling down. (Tr.II 23-24.)

There
were times when they had to cross the cable of the other bolter to tram to
their next entry because Gray’s team was lagging behind them. (Tr.II 25-26.) Once
Jim Pennington replaced Gray, the speed picked up. (Tr.II 26.)

William
Peak

Peak was McFarland’s roof bolting
partner on the 001 day shift. He observed that Gray and Sheeks did not bolt at
the same pace; they would bolt five to six places for every one or two places
Gray and Sheeks bolted. The effect would be that production would slow down and
it would put more work on him and his partner. He complained to Cornett about it.
(Tr.II 32.) When Pennington was hired, they two teams bolted equally fast. (Tr.II
33.) The typical depth cut was 20 feet or less. (Tr.II 33.)

Peak
had never seen a cut of 50 feet. The top was real bad and a cut of that depth
would have been extremely dangerous. He never been asked to bolt a deep cut or
heard anyone else say they were asked to bolt one. He never heard Gray said he
had been asked to bolt a deep cut. He had heard Gray had bolted a deep cut at
some other mines but not at North Fork. (Tr.II 34-35.) Peak told Fain that he
had never seen a crosscut mined all the way through without being bolted. He
also told Fain that the deepest cut he ever saw was 40 feet deep and that was
two years prior in a different coal seam where the roof conditions were better.
(Ex. R-9.)

Peak
was no longer working for North Fork as he was out on long term disability. (Tr.II
32.) He had been terminated because his disability was permanent. (Tr.II 38.)

Marty
Bates

Marty
Bates was the 001 section second shift foreman in May 2009. (Tr.II 42.) The
first and second shifts were production shifts where the third shift was only
maintenance. (Tr.II 43.) The depth of the cuts being taken were 18 to 20 feet
and no more. (Tr.II 43.) Had a cut of 50 feet been taken, the roof would cave
in. (Tr.II 44.) There were no cuts taken of 50 feet or more, no one ever asked
him to make a cut of that depth and no one ever complained about taking such a
cut. (Tr.II 44.)

Kevin
Doan

Kevin
Doan is an MSHA roof control specialist of five years. (Tr. 149.) He visited
the mine in the day Gray was fired. (Tr. 142.) Doan had no present recollection
of the events; he testified from his notes. (Tr. 146. He traveled with Estevez
to the section. (Tr. 146.)[15]
He entered the mine with Estevez sometime around eight or nine. (Tr. 151.) He
made an imminent danger run across the working section starting at the number
one heading and going across to six. (Tr. 152.) He was interested in seeing the
Automatic Temporary Roof Support system (ATRS) that had been installed on one
of the roof bolters as he had never seen one before. (Tr. 152-53.) The machine
was in the number one heading. (Tr. 153.) Doan was extremely reluctant to state
how long it took for him to travel from entry one across to six and come back
again. He finally estimated one hour or more. (Tr. 158.) He cited a rib
roll as well as an improper test hole along the way. (Tr. 156.) Estevez was
with him the entire time. (Tr. 158.) When they came back to the number one
entry, the roof bolter was still in the same entry bolting the same cut as they
had been when they first saw it. (Tr. 158-59.) Doan testified, however, that he
could not recall making a comment about how slow they were bolting as Estevez
stated. (Tr. 159.)

Doan
stated that no roof control plans in District 7 allowed for cuts as deep as 50
feet. (Tr. 161.) Doan stated that he had never seen 56 foot unbolted cuts in this
mine nor had he ever written a citation for deep cuts in the mine. (Tr. 161.) No
miner had ever told him deep cuts were being taken in the mine. (Tr. 161.) Doan
confirmed that he had seen and issued citations for cuts exceeding the roof
control plan in other mines which he discovered during his inspection. (Tr.
163.)  

Thomas Cornett

Cornett had been
a section foreman for 26 years. He started on the 001 day shift in April 2009. (Tr.
227.) He was Gray’s immediate supervisor. (Tr. 227.) His responsibility was to
ensure safety and production and to supervise the crews underground involved
with cutting and hauling the coal and bolting the roof. (Tr. 228-29.) In his
observations of Gray, he felt Gray started out as a good worker for the first
few days but then started to slow down in his job and not hang the ventilation
curtains as required. (Tr. 229.) It was Gray’s duty to keep the curtain within
four feet of the bolter at all times. (Tr. 229.) Every time the bolter moves up
four feet, the curtain is to be moved up four feet as well. (Tr. 230.) Gray
would at times use the wrong size bolts as well. (Tr. 229.)

In comparison to the other bolters, Gray
and Sheeks bolted two places to every five the other team bolted. The other
crew was made up of William McFarland and Bill Peak. (Tr. 232.) Cornett spoke
to Sheeks and Gray about their performance and kept a personal notebook in
which he entered notations about speaking with these two bolters about their
performance.[16]
(Tr. 233; Ex. R-3.) Cornett testified that he personally photocopied the pages
from his notebook and produced all notes pertaining to Gray and Sheeks. (Tr.
236.) As he stated, Gray only worked for him for a month or so. (Tr. 255.) His
notes document numerous instances of Gray’s misbehavior. Some examples are: (1)
4-14-09 Gray was not putting pressure on the drill, meaning he was not putting
up pressure on the drill to install the bolt. Cornett observed this when Gray
was unaware he was being watched; (2) 4-22-09, Gray was making remarks that
“the men could f*** over a boss and cut coal run down,” and it took him 25 minutes
to spot one bolt. Sheeks was listed as a witness to this; (3) 4-23-09 he spoke
to Gray and Sheeks about doing a safe job bolting because they had installed
too wide a bolt; (4) 4-28-09 curtains were not hung as required in #6 and #4
and a 6-foot bolt instead of a 12-foot rope bolt was installed in the corner;
(5) 4-28-09 Gray was told to quit holding up production, he did not hang the
two curtains and spot bolted again with a 6-foot bolt; and, (6) 5-11-09 it took
Gray three hours and twenty minutes to install nine bolts. (Tr. 237-44.) Cornett
testified that he had to speak to Gray on a daily basis for a while about
keeping up with hanging curtains. (Tr. 240.) On April 29, 2009 he gave Gray a
verbal warning about curtains and spot bolting, which was similar to the
warning Gray had received the day before. (Tr. 243.) He was warned on three
subsequent days to pick up the pace of bolting. It took Gray over three hours
to spot bolt nine bolts when it should have taken about twenty minutes. (Tr.
244.) Cornett did not inform Fain, when interviewed, that he had these notes. (Tr.
272.) He stated that he did not think to produce the notebook until counsel for
North Fork asked for any notes he may have on Gray. (Tr. 233.) He could not
recall what Fain asked him but he did tell Fain that he had problems with Mark
Gray. (Tr. 273.)

Cornett
testified that typically cuts of about 18 feet were being taken in the April to
May 2009 time frame because there was draw rock on the roof that could come
down, creating a safety hazard. (Tr. 245-46.) No one took a cut deeper than 30
feet in the mine. Had a 50 or 60 foot cut been taken, the roof would have
fallen in. (Tr. 246.) He had not seen a deep cut in many years. (Tr. 262.) A
deep cut would also have been observed by the bolters, car drivers, the miner
man and the foreman. (Tr. 248.) Gray never mentioned deep cuts to him, he never
pinned a deep cut, he was never asked to bolt a deep cut and he never refused
to bolt a deep cut. (Tr. 248.) Gray never complained about wanting to hang
curtains, it was the other way around; he complained because Cornett told him
he had to do it. (Tr. 248.) Gray’s response was that he complained about it and
said it was somebody else’s job. (Temp. R. 227.)

Cornett was not
aware Ison had counseled Gray. (Tr. 262.) He did not tell Estevez about Gray
not putting pressure on his drill although it was serious thing. (Tr. 266.) Countiss,
however, was aware of it. (Tr. 266.) At the temporary reinstatement hearing
Cornett also testified that he had discussed Gray not putting pressure on the
drill on April 14 with Ison. (Temp. R. 232.) He also told Ison that he verbally
counseled Gray on April 22 for not spot bolting. At one time Cornett
recommended to Ison that Gray be fired but nothing came of it. (Temp. R. 250.) He
did speak to Estevez about Gray’s performance but not the specifics and never
told Estevez to fire Gray. (Tr. 267-69.)

Cornett
testified that Gray had made threats to sue the company from time to time as
far back as when he worked on the night shift about one year prior to his
termination. (Temp. R. 246-48.)

On
the day Gray was fired, two inspectors were at the mine. (Tr. 251.) Kevin Doan
was one of them who accompanied Estevez to the section Gray was working on that
day. (Tr. 252.) Cornett’s notes indicated that both Gray and Sheeks took 2½
hours to bolt the #4 right break. Sheeks was verbally counseled by Cornett but
he was not fired because Cornett saw that Sheeks was bolting faster and waiting
for Gray to put his bolts up. (Tr. 260.) After Gray was fired and his
replacement was put in place, production evened out between the two bolting
teams. (Tr. 249.) Prior to Gray’s termination Cornett spoke to Estevez about
Gray being the reason why that bolting team was slow. (Tr. 250.)

Anthony Estevez

Estevez
had become the superintendent at the North Fork #4 mine in late March 2009. (Tr.
36, 61.) Upon taking control of the mine, he traveled the entire mine, observed
the different shifts and evaluated every aspect of the mine. (Tr. 611.) He
studied production reports for the various sections and established a cut
sequence to be followed for ventilation and methane issues. (Tr. 63.) Soon
after taking control, he noticed that the 001 day shift under Cornett was not
complying with the plan. When he asked Cornett why there was a problem, Cornett
stated that he had problems with the roof bolters staying caught up. Specifically,
he indicated it was the Gray/Sheeks bolting team that was the problem. (Tr. 63.)
Cornett told Estevez that he felt Gray was the problem. He was slowing down,
burning up bits, spinning the drill without putting up pressure on it, not
bringing enough cable to move the equipment and not hanging the curtains
according to the ventilation plan. (Ex. R-11A.) Estevez observed them every
time he was on the section. (Tr. 64.) Not only did he see that they were always
behind in bolting but he observed on two occasions they did not have enough
cable to move the bolter from one place to another. On the first occasion, the
entire section was down because their machine blocked all the other equipment
while they were trying to pull enough cable to get them out of the way. (Tr.
65.) On the second occasion, the same thing happened but Estevez told them to
move out of the way and Estevez and some other miners pulled the cable. (Tr.
66.) Another time he was on the section he observed a cable jumping up and down
as the bolter was exiting the entry. When he approached the bolter, he found
Sheeks backing out on his own. When asked where Gray was, Sheeks said he did
not know. Estevez helped Sheeks back out of the entry as two operators are
required when doing so. (Tr. 66.)

Having
observed the bolting on the shifts, Estevez found the Gray/Sheeks machine to
bolt well below the pace of the other crew; they were moving two to three times
slower than the crew. In early April Estevez called Gray and Sheeks into his
office to show them production reports and explained to them that they were
below standard. They stated they would do better. (Tr. 67-68.) Gray stated that
he felt like he was doing a good job. On that particular day, Sheeks and Gray
bolted 1½ rows during that shift while the other team had bolted 5½ rows. (Ex.
R-11A.) When performance had not improved, they were called into Estevez’s
office one at a time. Sheeks said if he had a better partner he could do a
better job. He said it was Gray’s fault because Gray was often missing when he
needed to move the machine, he was always waiting on Gray and Gray was not
hanging the curtains. (Tr. 68-69.) When Gray was questioned and given an
opportunity to explain his performance, he said he could do better but said
nothing else. (Tr. 69.) This was before any disciplinary letters were issued. (Tr.
70.)

Estevez
held weekly safety meetings and daily meetings before or after each shift when
he was at the mine. All miners were present at the meetings. He also maintained
an open door policy. (Tr. 70.) Gray had never made any safety complaints at any
meeting nor did he ever mention any deep cuts in excess of 20 feet or anything
about curtains. (Tr. 71, 76.) Had a deep cut been taken, those responsible
would have been terminated, Estevez said. (Tr. 73.) A deep cut would endanger
the miner operator, two shuttle car men and the roof bolters. (Tr. 73.) Cuts in
excess of 20 feet were not being taken. (Tr. 74.) There were three or four MSHA
inspectors are at the mine almost every day traveling in the working areas
looking for things such as deep cuts and unsupported top. (Tr. 74-75.)

Estevez
testified that he accompanied MSHA inspector Doan on his inspection of the 001
section on the day Gray was terminated. They traveled to where Gray and Sheeks
were bolting the first row of bolts. They left the area to make a run across
the entire section. When they returned about two hours later Gray and Sheeks
had only advanced to the second row of bolts in that time. (Tr. 51-52.) That
would have been a total of about 12 bolts which was extremely slow.  Doan had
wanted to see the reflector pads on the bolter which Gray and Sheeks operated. (Tr.
50-51.) Estevez had expected them to be done bolting by the time they returned
so that Doan could look at the front end of the bolter. When they found Gray
and Sheeks still bolting the same entry upon their return, Doan said something
to the effect of “I can’t believe they’re still in it.” Estevez replied that he
realized he had a problem that he was going to take care of. (Tr. 50, 54-55.) Estevez
testified that Doan’s comment played no part in his decision to fire Gray. (Tr.
57.) At the temporary reinstatement hearing, he stated that he had decided if
there was no improvement in Gray’s performance firing was inevitable but when
an outsider commented on it, he felt like it had gone too far. (Tr. 57.)

When
Estevez fired Gray, Gray did not mention deep cuts, curtains or any safety
complaints. (Tr. 76.) Gray asked why he was being fired and Estevez told him it
was because he had been warned about his poor performance already and it had
not improved. It was now a safety issue. Gray responded, “That’s okay, I’ll
have a job tomorrow.” (Tr. 77.)     

IV.            
CREDIBILITY
OF WITNESSES

Mark
Gray

Gray testified that up until the day he
was terminated, he had never been disciplined by any one in management, he had
never been called into Estevez’s office with Sheeks for any reason and he had
never been told he was performing too slowly nor was he ever shown production
reports. He had never failed to secure enough cable on the miner to tram it to
a new location. (Tr. 221-24.) He denied that he told Sheeks that he had been
written up by Ison on previous occasions. (Tr. 222.) He denied that he told Sheeks
he could not be fired because North Fork could not get other roof bolters. (Tr.
222.) He denied that he told Sheeks that if he was fired, he would file an
unemployment claim and if that was denied, he would sue the company. (Tr. 222.)
He denied that any foreman had ever kept after him for hanging curtains as
required, he never ran his drill without putting upward pressure on it, he did
not tell Estevez on the day he was fired that he would have a job the next day
and he was never fired or received any written warnings from any of the 30
mines he had worked in in 29 years. (Tr. 209-12.) Most importantly, Gray denied
ever having seen, received or signed any written counseling warnings given to
him by Russell Ison in February or by Estevez in April, 2009. (Tr. 192.) Gray
claims his purported signature on the documents are forgeries made by someone
on behalf of North Fork.

Essentially, if Gray is to be believed,
all of the witnesses for North Fork, management and non-management alike, have
conspired against him and have created an intricate and detailed fabrication of
performance down to the last detail to which they all testified under oath. I
find that not only do the witnesses for North Fork provide credible testimony
that contradicts Gray’s assertions, but also the statements and admissions made
by disinterested parties directly contradict or cast significant doubt on
Gray’s testimony. I further find Gray’s own testimony contradictory and lacking
credibility on its face.

Deep
Cuts and Hanging Curtains

There are several troubling omissions in
detail, inconsistencies and lapses in memory in both Gray’s testimony at trial
and the temporary reinstatement hearing held in September 2009 and his
statement to Investigator Fain.

Gray’s account of what protected
activities he engaged in and when evolved over time. His initial complaint
mentioned only one deep cut and did not provide any details as to when that cut
was made. (Temp. R. Ex. R-1.) Subsequently Gray told Investigator Fain that
this cut was made about a week before he was fired, then he added that he had
bolted a similar deep cut “a couple of days prior.” (Temp. R. Ex. R-2.) At the
temporary reinstatement hearing he initially said that the first deep cut was
made two days before the second deep cut. (Temp. R. 38.) He later said that it
was three days before. (Temp. R. 56, 79; Tr. 188.) In his second statement to
Investigator Fain, Gray for the first time said he had also made complaints
about ventilation curtains. He said he had made these complaints to two foremen
“since the first of 2009.” (Temp. R. Ex. G-1.) He later testified that there
was one specific incident in which he complained about curtains to Cornett and
Cornett appeared to be angry, walked off, and thereafter exhibited a cold
attitude toward Gray. (Temp. R. 27-28, 71-72.) At the temporary reinstatement
hearing he testified he was sure that the alleged curtain incident he
complained of occurred about two weeks before he was discharged. (Temp. R. 28,
69.) Gray testified at trial, however, that the curtain incident occurred on
the same day he refused to bolt the second deep cut, which was one week before
he was fired. (Tr. 203.) Gray never gave a date on which any of these events
occurred.

Gray testified at the earlier proceeding
that Sheeks was not with him when he refused to bolt the second cut and he
could not recall where Sheeks was at the time. (Temp. R. 42-43.) Later in his
testimony when questioned by the court he stated that Sheeks was with him when
he told Cornett he was not going to bolt the second cut; Sheeks was sitting on
the drill. (Temp. R. 57.) Sheeks heard him refuse to bolt the second cut. (Temp.
R. 86.) At hearing he testified unequivocally that Sheeks was with him at the
time he refused to bolt the second cut. (Tr. 209.)

At the temporary reinstatement hearing,
Gray was asked directly why he bolted the first deep cut. He said that he did
so because “Tom” told him he needed it for air so he bolted it. (Temp. R. 49.) He
then stated several times that directly after bolting this cut, he told Cornett
that he bolted this one but he would not bolt another one. (Temp. R. 37-39,
52-53, 55-56.) It was not until the hearing some fifteen months later that he
testified that he bolted the first deep cut because he was “job scared.” (Tr.
183.)

At trial Gray acknowledged that he stated
in his complaint to MSHA that the deep cuts were 60 feet deep. (Temp. R. Ex.
R-2.) At the earlier proceeding and at trial, he said he knew the first one was
56 feet by counting the bolts installed and he could tell the second one was
the same as the first just by looking at it. (Temp. R. 38, 74; Tr. 182, 187.) He
took no notes of the incidents to help recall the number of bolts he installed
and could not recall the bolting pattern in the other mines he worked in but he
was certain about his recollection here even though he could not provide a date
certain on which any of the three alleged incidents occurred. (Temp. R. 75.) He
could not recall, moreover, the name of the miner man who made the deep cut
although there was only one on the shift. (Temp. R. 75.) He later identified
the miner man who made both cuts as “Steve.” (Temp. R. 80.) The miner man’s
name was, in fact, Jerry Lynn Hall. (Tr.II 6.) Nor could he recall the names of
the other two roof bolters on his section until provided their names by counsel
for Respondent.

Gray repeatedly called his section
foreman “Tom Caudill” at the earlier proceeding. (Tr. 23-24.) Despite being
given Cornett’s name by counsel several times, Gray continually referred to
Cornett as Caudill although he later stated that there was no one by the name
of Caudill that worked with him. (Tr. 37, 39, 42, 43, 47.) Gray also could not
identify the area in the mine he was working in May 2009, only that he was on
the 001 section. (Tr. 35-36.)

I find the inconsistencies in Gray’s
testimony and his inability to recall the dates on which the events took place
or even the sequence of events to be extremely perplexing at best. The stark
contrast between his testimony at the earlier hearing that he bolted the first
cut because he was asked to so he just did it and his assertion of being “job
scared” is difficult to attribute to anything but having had many months to
embellish his story. The vacillations between his statements whether his roof
bolting partner did or did not hear his refusal to bolt the alleged second deep
cut, along with his inability to properly identify his day to day foreman or
the one and only miner man on his shift or the two other roof bolters with whom
he had worked for months or anyone who would have seen the second deep cut are
inexplicable. These events are the crux of the alleged protected activity yet
he cannot recall such obvious and important details or keep his story straight
having had one year and seven months from the time of his termination to trial
to prepare. It would stand to reason that he should have a far clearer
recollection and more believable account of the events, if they did in fact
occur. These apparent lapses and inconsistencies make his testimony seem
disingenuous and fabricated.

Gray’s testimony does not withstand
reasonably objective scrutiny. For example, Gray trained his roof bolting
partner, Chris Sheeks. At trial he said the reason he bolted the first alleged
deep cut was because he was “job scared” and he said nothing to anyone
including Sheeks or Cornett about bolting the area. (Tr. 183.) But he further
stated that immediately after he bolted the cut he faced off with Cornett and
told him that he would not bolt another one. (Tr. 182-83; 213-14.) This is
particularly incredible taking into consideration that at the earlier hearing
just a short time after the alleged events, he utterly failed to mention that
he was fearful of Cornett or losing his job. His explanation for bolting the
cut was because he was told to. (Temp. R. 38, 49.) And, despite his claim that
Cornett was angry with him for refusing to bolt the second cut, Cornett just
told him and Sheeks to bolt another place. (Tr. 185.) Had Gray been “job
scared” it apparently lasted only for a few seconds as he faced up to Cornett
immediately after bolting a deep cut and refused to Cornett’s face to bolt
another deep cut just three days later. And had Cornett been angry with him, as
Gray asserts, Cornett’s reaction was surprisingly mild in merely directing him
to bolt another area and bringing in another crew to bolt this allegedly
illegal deep cut. It is also difficult to believe that despite being the highly
experienced bolter responsible for his partner’s safety as well as his own, Gray
allegedly entered into unsupported roof in a 56 foot cut without saying a word
to Sheeks or anyone else in this momentary period of being job scared.  

As another example, Gray confirmed
Estevez’s testimony that he held weekly safety meetings that Gray attended yet
Gray said nothing about the deep cuts that he was allegedly so concerned about.
Estevez also testified that he held informal safety talks before or after a
shift when he was down in the mines but Gray never raised the issue there
either. Estevez was new as superintendent of the mine and there was no
allegation by Gray that Estevez harbored an animosity towards Gray which would
prevent him from speaking up at these meetings. When Gray was asked at the
temporary reinstatement hearing why he did not complain to someone up the chain
of command, he lamely responded that Cornett was the one he needed to tell and
who would have handled it. (Temp R. 95-96.)

As a third example, Gray could not
identify who would have bolted the second cut although there was only one other
bolting duo on the shift. When asked by Respondent’s counsel if someone bolted
up the second alleged deep cut, Gray responded as follows:

Q. And somebody bolted up that 56 foot
place you’re telling the Judge about?

A. I suppose so.

Q. What do you mean, you suppose so? You
saw it bolted up, didn’t you? Later on?  

A. I didn’t see nobody bolt it up.

Q. You saw it bolted up after it was –

A. Yes, it was bolted up.

(Tr.
216-17.) Counsel for Gray attempted to explain this oddity by establishing
anyone else could fill in on a bolting machine if the regular crew was absent. However,
there was no evidence to suggest such an occurrence despite the opportunity to
ask the other roof bolters who appeared at trial if that was possible. Gray
also testified that he had no idea who would have seen the second cut besides
Sheeks. (Temp. R. 79.) Obviously, Cornett would have seen the cut as he
allegedly directed that it be made and that Gray and Sheeks bolt it. The car
drivers who would haul the cut coal away would also see it, not to mention the
other bolters who bolted it. Gray’s inability to state even the obvious lacks
an objectively logical explanation and leads to the conclusion that he was
having difficulty thinking on his feet while spinning a tale.

Gray asserted that deep cuts were “not
unusual” in Kentucky yet when he was asked which mines he worked in that took
deep cuts or how often this occurred he could not come up with any answer
whatsoever. He stated that he never reported any of these illegal cuts to MSHA
over the 30 years of his career as a miner despite being so concerned with
safety and being acquainted for years with Fain, Harris and Brooks whom he
could have approached outside of the mine environment had he been truly “job
scared” about making a safety complaint. And then, suddenly on or about May 12,
2009, he squared off with his section foreman the first time when was asked to
bolt a deep cut and refused to bolt a second one.

Gray’s allegations that these two deep
cuts were made is completely unsubstantiated aside from his own testimony which
is contradicted by the rank-and-file miners as well as non-company witnesses
alike. As Fain testified, not one of the regular inspectors of North Fork
reported ever seeing any deep cuts. (Temp. R. 128-29.) Doan did an imminent
danger run across the entire 001 section on the day that Gray was fired and saw
no dangerous roof conditions. (Tr. 160-63.) Every miner on the 001 day shift
testified that no such cut had been made. There was not a single witness that
had ever heard Gray refuse to bolt a deep cut or make any type of safety
complaint to anyone.

Counsel for Gray asserts that a deep cut
would never be reported to MSHA voluntarily and therefore it would never be
known to have occurred. However, Doan, a roof specialist, testified that he was
aware that deep cuts had been made in Kentucky in the past and they were in
fact discovered during inspections at the mines. Despite having cited North
Fork for a rib roll on the day he was there, Doan had not seen evidence of a
deep cut at North Fork. (Tr. 160-64.) Fain testified that during the
investigation of Gray’s complaint, William Clark and Silas Brock, two other
inspectors who frequented the mine, were asked if they had ever seen deep cuts.
None had despite the frequency with which they were on site. I find that Gray’s
allegation that deep cut would not be discovered by MSHA is without merit. I
also find it would be highly unlikely that a foreman would order an illegal cut
in a mine with a roof in extremely poor condition that is crawling with MSHA
inspectors on almost a daily basis for the sake of “ventilating the face” as
Gray claims Cornett did. 

I find that the Gray’s assertion that
two deep cuts had been made in the months preceding his termination is
unsubstantiated, contradicted by credible evidence from MSHA inspectors as well
as management and rank-and-file witnesses and is lacking credibility.

With regard to the curtain allegation,
Gray’s assertion that Cornett appeared to become angry and walked off in a huff
when he stopped to hang curtains is highly subjective and questionable. Gray
could not say what if anything Cornett said or what exactly he did that Gray
interpreted as anger towards him on Cornett’s part. Gray’s theory of the case
is that Cornett acted perturbed because it would slow production when Gray
stopped bolting to hang ventilation curtains. However, the methane sensors on
the roof bolter would often shut the machine down when methane rose. (Tr. 156,
179.) The only way to prevent this from happening was to advance the curtain
once a new row of bolts was installed. Each time the bolter shut down due to a
rise in methane, production would cease. There is no objectively logical
explanation for why Cornett would be upset with Gray for not hanging the
curtains in this scenario if his goal was to keep the mine producing. The more
logical explanation is Cornett’s testimony that he had to tell Gray repeatedly
to keep up with hanging his curtains because he was not doing so as he stated
and recorded in his notes. (Tr. 240; Ex. R-3.) Gray testified that he had to
advance the curtain after every 2 ½ rows of bolts installed which would be
every 10 feet. (Tr. 210.) However, Cornett stated that the curtain was to be advanced
after each row of bolts was installed which would be every four feet. (Tr.
229-30.) This was also confirmed by Sheeks. (Tr. 63.) So, by Gray’s own
testimony, he was not following the ventilation plan. All of these factors
would be an objectively reasonable basis for Cornett to be annoyed with Gray each
time he had to tell Gray to hang the curtains.

Casting further doubt on Gray’s
credibility with respect to hanging the curtains is the fact that Gray never
mentioned anything about curtains in his initial complaint to MSHA. (Temp. R.
102.) Nor did he mention anything about curtains to Investigator Fain when
first interviewed by him. (Temp. R. 126; Temp. R. Ex. R-1.) Moreover, when he
did provide a statement to Fain regarding the curtains, it made no sense. Fain
testified that he was the one who asked Gray on a subsequent interview if he
had anything to say about hanging curtains. (Temp. R. 124-25. Fain confirmed
that he got the idea of asking Gray about curtains only after his interview with
Cornett who told Fain that he had a problem with Gray not hanging the curtains
as required. (Temp. R. 126.) When finally questioned by Fain about the
curtains, Gray made some very vague comment which Fain did not readily
understand.  As Fain testified, Gray told him his foreman directed him to hang
the curtains. Fain could not state how hanging the curtains as directed could
be interpreted as a safety complaint. He confirmed, in fact, that this would
promote safety. (Temp. R. 139-41.) Fain then stated that the only statement
Gray made that he could interpret as a complaint was that Gray told him “he had
complained several times about ventilation curtains not being up to Tom
Cornett, the section foreman.” (Temp. R. 140-42.) One objective interpretation
of Gray’s statement that it was not “up to Tom Cornett” would be that Gray was
saying Cornett had no business telling him to hang the curtains. This
interpretation is supported by Cornett’s testimony that when he got on Gray
about hanging curtains, Gray responded by saying it was not his job. (Temp. R.
227.) It is further supported by Gray’s overall negative attitude toward
management as Sheeks had testified.

Gray told Fain during the second
interview that he made similar complaints to two other foreman, one he could
only identify as “Moondog” who told him to go ahead and hang the curtains. He
stated that he made these complaints since the first of 2009 yet he never
mentioned this in his initial complaint nor did he mention it at trial. (Temp.
R. Ex. G-1.) He again provided no dates, time frames or details to support this
allegation. (Temp. R. Ex. G-1.)

Complainant posits that Gray raised the
issue of curtains in his initial complaint when he said that he had made “other
safety complaints.” However, it is not sufficient to say Gray mentioned “other
safety complaints” to overcome this very important and telling omission on
Gray’s part. The time to identify what “other complaints” he was referring to
would have been at his first interview with Fain, not after Fain had provided
him with a suggestive opportunity to do so. And yet, when Fain had done so,
Gray still could not articulate a scenario in which his hanging curtains could
be interpreted as having brought about the animus of Cornett for engaging in
safety-related behavior.

I find this allegation of having made
any sort of safety complaint concerning ventilation curtains (in any sense of
the discrimination context) wholly unsupported by the evidence. It flies in the
face of Gray’s own statement to Fain that he was directed by his foreman to
hang the curtains. (Temp. R. 139.)

Counseling
Issues

Gray denied ever having been counseled
for his performance by anyone at any time. He categorically denied that he had
been presented with the two written counseling documents at issue here. Most
notably, Gray testified at hearing that the first time he was aware of the
written counseling warnings, Exhibits Compl.-A and -B, was at his second
interview with Fain in late July. He said Fain brought them to him after
speaking with management and said, “I thought you wasn’t wrote up for nothing.”
Fain then showed him the two documents, at which time Gray simply responded by
saying he had never seen them before. (Tr. 194.) At the earlier temporary reinstatement
hearing in September 2009, however, Gray testified that Fain came back to talk
with him in late July and showed him “some papers” but he could not remember
what those papers were. (Temp. R. 68-69.) Considering the alleged forgeries are
the epicenter of Gray’s case[17]
it is incredible that just two months after being confronted by Fain with the
allegedly forged documents, he would forget what the documents were. And yet
somehow he recalled in detail at trial, nearly two years later, being shown the
counseling documents in July and denying he had seen them before. (Tr. 193.) It
is difficult to fathom how someone who is confronted with two false counseling
documents would not remember very clearly the details just two months later. It
is also extremely difficult to believe that when confronted with forged
personnel records one would reply as Gray did rather than vehemently and
immediately deny their authenticity. Yet Gray said “I’ve never seen this before.”
(Tr. 194.)

For the reasons set forth herein and
those discussed above regarding my analysis of the handwriting expert’s
testimony, I find Gray’s assertions that he never received the counseling on
February 27 and April 29 not credible.

Gray’s counsel makes much of the fact
that Gray worked for North Fork for over a year before being fired. Counsel suggests
that if Gray’s performance were as poor as the witnesses indicated, it would have
been absurd to keep him on the payroll. But Cornett, Sheeks, and Estevez have explained
that Gray escaped being fired sooner only because there were a number of
management changes around the time he was switched to the production shift and
began having trouble keeping up. For one thing, Gray’s immediate supervisor was
fired and replaced by Cornett. (Temp. R. 192.) Cornett began noting problems
with Gray’s performance almost immediately, but he did not have firing
authority. (Tr. 265-71.) He testified he complained about Gray to the former
superintendent, Ison, but no action was taken until Estevez had stepped in as
new superintendent and evaluated the situation. (Temp. R. 192-93, 239-40, 251,
270-71.) I do not find it suspicious that mine management took the time to
assess the situation carefully before deciding to terminate Gray’s employment.

As discussed above, I find that Gray
harbored a resentment towards management providing a motive for his allegations
of discrimination. His attitude is exhibited by his inability to remember or
disinterest in remembering any of his supervisors’ names or how long he worked
for them, his telling his partner that they could not be fired because the mine
had a bad reputation, using profanity when stating what he could do to
management by working slowly,[18]
deliberately not putting pressure on his drill, not carrying enough cable to
tram the bolter, causing the entire section to stop production, not using the
correct size or type of bolt, advancing his curtain every 10 feet rather than
every 4, being off task, and telling the foreman that it was not his job to
hang the ventilation curtains.

Most telling of his attitude is his
comment to Sheeks that if he was denied unemployment, he would sue the company.
Gray confirmed that he had been involved in a federal court case in which
management was charged with illegal mining and ventilation violations. (Temp.
R. 96-97.) He was called as a witness in that hearing by Harris. Gray
was aware, therefore, of the results he could bring about by making such a
claim against North Fork. This lends credence to Sheeks’ testimony and it would
explain why each of his allegations regarding the deep cuts, the curtains and
the forged counseling documents are such general allegations which do not hold
up to objective reasonable scrutiny. Moreover, it explains why there is not a single
witness who could support his allegations even among the MSHA investigators and
non-management personnel that these events took place during between March and
May 2009.

Chris
Sheeks

I find Sheeks’ testimony to be credible.
Sheeks came across as an unsophisticated person who was relatively new to the
mining industry at the time of these events. He was trained as a roof bolter by
Gray and thereafter they worked together every day for over one year. (Tr.II
81.) I find it likely that Gray would share his thoughts and comments with
Sheeks as his roof bolting partner more freely than with anyone else. I also
find Sheeks would have been in a better position to observe Gray’s work habits
and his attitude toward management than anyone else. That Gray would make the
comments Sheeks attributed to Gray, therefore, does not come as a surprise.

Sheeks testified that Gray told him he
had been written up on three or four occasions; once by Estevez and the other
times by Ison.[19]
(Tr.II 69, 90.) Gray told him one was for production and another for not having
enough cable pulled when tramming the bolter. (Tr.II 70.) Neither of these
counselings were for issues related to the two allegedly forged documents
involved here, meaning that any doubts Gray has raised about the authenticity
of the questioned documents does not affect the credibility of Sheeks’
testimony on this point. Sheeks stated he had seen Gray fail to pull the proper
amount of cable several times which had stopped production. (Tr.II 71.)

Sheeks stated that he and Gray were
reprimanded for poor performance before Gray was fired. He testified that Gray
had mentioned being written up at least three or four times, including once by
Estevez for not pulling enough cable and three times by Ison for poor
performance. (Temp. R. 170, 197-201; Tr.II 69-70, 91.) Although Sheeks did not
see any of the written warnings, he knew that Ison had spoken to Gray in the
mine office because “You’d be in the office getting your supplies for the day,
and you’d hear Doe [Ison] talking to him [Gray].” (Temp. R. 205-06.)  Countiss
also testified that he was aware of Ison counseling Gray on February 27, 2009
for poor performance because he was present, but Ison had said it was a verbal
warning so he did not need to sign as a witness. (Tr. 116.) Countiss recalled
one additional written warning given by Ison to Gray two months prior to the
February one which he did sign as a witness. This document could not be found
in Gray’s file and Countiss had no idea what had happened to it. (Tr. 121-22.) Countiss’
statement lends credence to Sheeks’ testimony that Gray said he had been
counseled by Ison on more than one occasion as Countiss was witness to two of
them. In addition, Estevez’s testimony confirms that he counseled Gray for the
cable issue. (Temp. R. 259, 296-97; Tr. 65-66.) The final warning written by
Estevez in April 2009 would make at least four warnings that Gray would have
been referring to in his conversations with Sheeks. In addition, Estevez
testified he had found in Gray’s personnel file a note written on yellow paper
by former section foreman Eddie Cox referencing problems with Gray. (Temp. R.
293.) I find this testimony credible. Estevez had not been the superintendent
when Cox worked at the mine and therefore had no personal knowledge of what
problems the note referenced, but the existence of the note lends additional
credibility to Sheeks’ testimony that Gray had been in trouble with mine
management before.

Sheeks testified to an attitude Gray
held toward management. Gray’s comments to Sheeks about the mine having a bad
reputation and filing for unemployment and suing the company exemplified this
attitude. These comments had nothing to do with the alleged forgeries. Gray in
fact did file for unemployment and then sued when denied as Sheeks had
testified he would do. (Temp. R. 87-88; Tr. 222-23.) I find it doubtful that
Sheeks would have the savvy to make up this testimony after the fact.

Sheeks’ testimony is also corroborated
by non-management and MSHA witnesses on several issues. Fain corroborated the
fact that the regular MSHA inspectors who were at North Fork on an almost daily
basis reported no signs of deep cuts. Doan, a roof control specialist,
corroborated that he was on the section Gray was on the day Gray was terminated
to view the reflector shields as Sheeks stated. He observed them bolting the
very entry that Sheeks testified they were in and confirmed that after
approximately one and one half hours, Sheeks and Gray were still bolting the
same entry. (Tr. 158-59; Tr.II 77-78.) This corroborates Sheeks’ testimony
regarding the slow rate at which Gray performed and Gray’s overall attitude
towards management and his job. Doan also testified that no roof control plans
allowed for cuts near the depth Gray alleged and that he had never seen one or
cited North Fork for one. He had, however, discovered such cuts in other mines
during his inspections. And although he spoke with Gray on the day he was
fired, Gray never mentioned any deep cuts to him. (Tr. 161-63.)  This
independent testimony from an MSHA inspector corroborates Sheeks’ testimony as
well as all the other witnesses’ testimony that no such deep cuts were taken
and Gray never made any safety complaints about deep cuts in the period Gray
alleges.

As a general matter, in order for Sheeks
to have made up all of the comments and actions he attributed to Gray he would
have had to have been thoroughly coached, rehearsed and informed of the
intended testimony of each of North Fork’s managers down to such minute details
as being shown production reports by Estevez when called into his office,
asking both Estevez and Cornett for a new partner, Gray being counseled for not
having enough cable pulled to tram the bolter, Gray not putting pressure on the
drill to drive in the bolt, installing the wrong sized bolts, and so forth, in
order to be as consistent in his testimony as he was. I find this extremely
unlikely. This is especially true considering that Sheeks testified in a
similar manner at the reinstatement hearing just three months after Gray filed
his discrimination complaint. Such a plot as that alleged by Gray would likely
take significantly longer to successfully orchestrate. Objectively consistent
is the fact that Gray acknowledged that he did file for unemployment upon
discharge and filed this complaint immediately upon being denied those benefits
just as Sheeks testified Gray had said he would do. Also objectively supported
is the fact that the mine roof by all accounts was in poor condition and no
deep cuts were allowed in District 7. Shallow cuts, spot bolting with rope
bolts that enable the roof to move, and a four foot bolting pattern were being
used to help control the top. Under such circumstances, cuts of 56 feet would
create an unreasonable danger of a significant roof fall, exposing several
miners to injury or death. Yet, no such occurrence took place.

The
Commission majority felt it was significant that Sheeks described being
“written up” as being presented with a written document on which one was asked
to sign. If the two written documents are forgeries then, the majority opined,
Gray never made the statements to Sheeks about having been “written up” two or
three times and Sheeks was lying. As discussed above, I find credible support
for Sheeks’ testimony that Gray told him he had been counseled three or four
times. Additionally, while Sheeks may have interpreted being “written up” as
requiring a signed document, he was merely repeating what Gray had told him. Gray
may have an entirely different perception of what written up means to include
verbal counseling. Furthermore, one of the counseling sessions Gray told Sheeks
about concerned not having enough cable to tram the bolter which has nothing to
do with the content of the two questioned documents but was corroborated by
Estevez’s testimony. Estevez testified that on two occasions he witnessed the
bolter being moved without enough cable pulled. On one occasion, he told Gray
and Sheeks to keep moving and had other miners assist him in pulling the cable
as the entire section was unable to move. Estevez had also observed Sheeks
attempting to move the bolter by himself against mine policy when Gray was not
to be found. (Tr. 66.)  I do not find the majority’s concern with
Sheeks’ credibility to be founded.

Hall,
McFarland, Peak

The testimony of
these rank-and-file miners is not in any way affected by the allegation that
the counseling documents were forged. They were not involved in any way with
disciplinary measures taken against Gray or the counseling documents Gray
alleges are forgeries.

Hall testified that except for hearsay
statements, he was not even aware that Gray had been counseled. His testimony
was most relevant with respect to the fact that he would have been the miner
man who made the deep cut. He denied that he or anyone else was making cuts
deeper than 20 feet due to the condition of the roof. (Tr.II 7-12.) This was
confirmed by roof specialist Doan who said no mine in District 7 was allowed to
take cuts of the depth Gray alleged and he had never seen or heard of any at
North Fork being taken. (Tr. 161.) I find Hall credible.

Peak testified that he and McFarland
were bolting five to six places to Gray’s and Sheeks’ two and he had complained
about it to Cornett. (Tr.II 31-32.) He stated that the pace picked up after Tim
Pennington replaced Gray. (Tr.II 33.) Also confirmed by McFarland was Peak’s
testimony that the top was in very poor condition, making a deep cut extremely
dangerous. (Tr.II 22-24, 33-34.) Neither Peak nor McFarland had ever heard Gray
or anyone else complain about deep cuts at the mine. (Tr.II 23, 33-34.) Again,
Doan’s testimony with regard to never having seen deep cuts in the North Fork
mine lends credibility to Peak’s as well as the other bolters’ and miner man’s
credibility. Doan also confirmed that Gray and Sheeks had not finished bolting
a cut in more than one hour on the day of his inspection. Peak was receiving
long-term medical disability and no longer employed by North Fork at the time
of trial and, therefore, had no reason to testify on behalf of North Fork. (Tr.II
33-36.) I find his testimony credible.

McFarland testified similarly with
respect to the condition of the roof and the depth of the cuts being taken in
the mine in 2009. He also confirmed that Gray and Sheeks were slower bolters
and he had had to cross their cable to advance his equipment. (Tr.II 25-26.) I
find McFarland’s testimony credible also based upon Doan’s testimony as stated
above.

Marty
Bates

Bates also confirmed that the roof at
North Fork was extremely bad and a deep cut of 60 feet would cause it to cave
in. As the second shift foreman on the 001 section, he knew that no deep cuts
were taken for that reason; they were limited to 18-20 feet. (Tr.II 43-46.) As
a foreman, he would lose his card if he violated the roof control plan which I
find makes his testimony more credible in view of the fact that inspectors were
at this mine constantly, making discovery of a deep cut an unreasonably high
risk. (Tr.II 46.)

I find Bates has nothing at stake here
in providing false testimony. He was not involved in any counseling of Gray. The
fact that he could lose his license as a foreman if he was involved in making
deep cuts is far outweighed by the fact that he would expose himself to death
if the roof caved in. In fact it provides an additional motivation not to make
such dangerous cuts in this mine.

Thomas
Cornett

I find Cornett’s
testimony that Gray was a slow worker who failed to advance the curtains as
directed to be credible. I also find his testimony that deep cuts were not
taken in the mine and Gray never made any complaints to him about bolting deep
cuts to be credible.

The curtains would often be knocked down
when moving the equipment requiring them to be rehung. According to Gray, the
curtains had to be hung every two and one-half rows of bolts which would be
every ten feet. (Tr. 209-10.) Like Sheeks, Cornett testified that they were
required to move the curtain after every four foot row of bolts was installed,
not every ten feet, to be compliant with the mine’s plan. (Tr. 230; Tr.II 63.) Fain
corroborated Cornett’s testimony that Gray did not hang the curtains as
required in that he testified that when interviewed, Gray told him that Cornett
directed him to hang the curtains. (Temp. R. 113; Temp. R. Ex. R-8.)

Cornett elaborated on his assessment
that Gray was a poor performer. He stated that Gray and Sheeks bolted about two
places for every five other bolting team did. (Tr. 232.) He documented many
instances of Gray’s performance in his notebook. (Ex. R-3; Tr. 233.) As set
forth above, the notes reference occasions when Gray failed to put pressure on
the drill, made an obscene comment about management, used the wrong size and
type of bolt, placed the bolts too far apart and did not hang the curtains. (Tr.
240-43.) 

The Commission majority casts doubt on
the authenticity of the notebook for two reasons: first, because the complete
original notebook was not produced, and second, because the notes do not
include any mention of a verbal warning being issued to Sheeks on the day Gray
was fired. Taking the second objection first, to the extent that the majority
believes that the notes did not mention Sheeks, this factual finding is
absolutely incorrect. As Gray’s attorney pointed out, the notes from May 11, 12
and 15 specifically state that Sheeks and Gray were bolting too slowly. (Tr.
260; Ex. R-3.) Gray’s counsel asked why Sheeks was not counseled along with
Gray. Cornett’s response was that he was already aware that Sheeks bolted
faster than Gray and was waiting on Gray to finish. (Tr. 260.) Cornett
testified that when he spoke to both Gray and Sheeks it was because they were a
team but he was well aware from his own observations that it was Gray holding
up production. It was also Gray who made the obscene comment about management,
which Gray did not deny. It was also Gray who was primarily responsible for
moving the curtains as Gray acknowledged himself. Cornett need not have included
Sheeks’ name in each of the notes when he was aware Gray was the problem and
not Sheeks. I find the lack of Sheeks being mentioned as having been counseled
does not detract from the authenticity of the notes.

Addressing the former of the majority’s
concerns, the majority also mistakenly states that the judge at the temporary
reinstatement hearing instructed Cornett to maintain the original notebook. There
is no such instruction by Judge Melick in the transcript from that hearing. Gray’s
counsel asked Cornett to keep the original because he intended to subpoena it. (Temp.
R. 252-53.) However, as counsel for North Fork stated at trial, Gray’s counsel
never issued any discovery. (Tr. 234.) Also of note is the fact that the pages
Cornett produced were introduced at the earlier hearing without objection from
Gray. (Temp. R. 244.) As set forth in footnote 15 above, I find having the
original notebook would not lead to a different finding of authenticity.

I find there are other indicia of
authenticity. Despite the fact that Cornett testified he did not mention the
notebook to Fain when interviewed, he related the essential contents of the
notes to Fain in saying that he had repeated problems with Gray including Gray not
hanging the curtains as required, spinning his steel, and working slowly. (Ex.
R-8.) Significant entries in the notebook were confirmed by other witnesses. The
pace at which Gray bolted was confirmed by Doan on the day Gray was fired. The
failure to hang the curtains as directed was confirmed in part by Gray’s
statement to Fain and his testimony that he hung the curtains every ten feet
rather than every four as required. Gray’s overall attitude towards doing as
told was confirmed by Gray’s comments to Fain. That the other roof bolters
testified similarly with respect to these issues is not a product of collusion
but independent observations by witnesses who had no involvement with the
alleged forged counseling documents or Cornett’s notebook entries. And lastly,
as Cornett stated, Gray had only worked for Cornett since about April. (Temp.
R. 212; Tr. 227, 256.) The first note is dated April 14, 2009 which would
coincide with Cornett having had the opportunity to observe Sheeks and Gray for
a few weeks and having drawn the conclusion that Gray was a poor worker. The
date also coincides with Estevez’s statement that he called Sheeks and Gray in
to his office the first week of April to warn them about their poor
performance. (Ex. R-11A.) It also tracks Estevez’s testimony that he had told
his foremen to take notes of significant events that take place during their
shift. (Tr.II 53-54.)

I find the entries from Cornett’s
notebook were made on the dates indicated and are authentic.

Cornett’s testimony that Gray never made
any safety-related complaints to him about deep cuts or hanging curtains is
also sufficiently substantiated and more credible than Gray’s assertions that
he did. I make this finding based upon my discussion of Gray’s credibility
above. I also consider the fact that Cornett testified that the condition of
the roof was such that a deep cut as Gray alleges would have caused a roof fall
exposing the entire mining crew as well as himself to a very dangerous
situation. Had such a cut been taken, it would have been seen by the car
drivers, the other bolting crew, the miner man and the foreman. Cornett would
have called the superintendent had he seen a deep cut. (Tr. 247-48.) Although
these statements may be self-serving, I find it extremely unlikely that a
foreman would expose himself and his entire crew to such a dangerous situation
and would do so with the presence of MSHA inspectors at the mine on an almost
daily basis. As stated above, that the subject of curtains was not raised as an
alleged safety complaint by Gray until Cornett told Fain he had a problem with
Gray hanging the curtains. Only then did Fain return to Gray and ask him if he
had something to say about hanging curtains at which time Gray made the
statement that it was not up to Tom Cornett. I find this lends credence to
Cornett’s testimony as well. I note that Cornett’s credibility on these issues
is not affected in anyway by the alleged forgery of the counseling documents as
suggested by the majority in its remand decision.

Anthony
Estevez

Estevez had
become the superintendent of the mine just two months prior to Gray’s
termination. There is no reason to believe he had any prior knowledge of Gray
before March 2009 nor did Gray allege any animus on Estevez’s part towards
Gray. As he testified, he made rounds in the mine and observed the miners at
work and reviewed production reports from each shift to familiarize himself
with the operation. It was his personal observations and review of records that
alerted him to the problems on the 001 section day shift. When he asked the
shift foreman, Cornett, what the problem was Cornett stated that he had
problems with Gray and Sheeks. They were bolting one or two places to every
five to six places the other bolting team was per shift. Cornett further
identified Gray as the primary problem as he had observed Gray spinning his
steel, burning up bits and not replacing the ventilation curtain when moving
the drill. Estevez then made his own observations of Gray not keeping up with
Sheeks. He also observed two occasions where Gray had not pulled enough cable
to tram the machines and one occasion when Sheeks was backing the equipment on
his own when Gray was nowhere to be seen against mine rules. (Tr. 63-67.) During
the first week of April Estevez confronted Gray and Sheeks in his office and
warned them to pick up the pace and then brought them in separately shortly
thereafter, which is when Sheeks asked for a new partner. (Tr. 67-69.) Estevez
then gave Gray the written counseling warning on April 29, 2009 which Gray
signed. On the day Gray was fired, Estevez observed Gray and Sheeks had bolted
less than two complete rows in a new cut during the time that he and Doan
traveled the 001 section and returned, which took in approximately two hours. (Ex.
R-11A; Tr. 52-55.)

Many
of Estevez’s observations as related to Fain and as he testified to in court have
nothing to do with the subject matter of the purportedly forged warnings. His
observations were confirmed by Cornett and the notations in Cornett’s notebook
and by the testimony of Chris Sheeks. Most notably, Estevez’s testimony regarding
Gray’s slow performance was also confirmed by Doan’s testimony that upon
returning to inspect the roof bolter after making the run over the 001 section,
Gray and Sheeks were still bolting a cut that should have been completed. While
Doan said he did not recall making a comment about how slow they were bolting,
he did confirm they had not completed bolting the entry in a significantly long
period of time. (Tr. 159.)

Gray
confirmed Estevez’s testimony that he was not hanging curtains as required. As
previously stated, Gray testified that he advanced the curtain every ten feet
when he was required to advance it every four feet. Estevez’s testimony that he
held safety meetings on a regular basis at which Gray was in attendance but
never made any complaints was also confirmed by Gray. (Temp. R. 84-86.)

On the day Gray was fired, he did not
make any mention of curtains or deep cuts. Gray testified that Estevez told him
someone had complained about him and he (Estevez) believed his foreman and Gray
then left without saying a word. Estevez testified that Gray was told he was
fired because his performance had not improved despite being told numerous
times he needed to improve. He said Gray’s response was “It’s okay, I’ll have
another job tomorrow.” (Tr. 77.) Whether Gray said nothing or said he would
have another job the next day, the fact that he did not react by raising the
issue of being forced to bolt a deep cut or being treated unfairly by his
foreman for hanging curtains is odd, at best. Gray’s reaction would make sense,
however, if he was well aware of his substandard performance, had been
counseled several times and his being fired was not unexpected. Whether or not
Gray was counseled in writing or verbally before he was fired is immaterial. Estevez
had made personal observations of Gray’s performance, had spoken to Gray about
it and had spoken with Cornett about it as well which formed the basis for his
decision to terminate Gray. It was Estevez’s observations of Gray’s performance
when Doan was in the mine that solidified Estevez’s decision to fire him. The
mine had no progressive disciplinary program and Estevez had the right to
terminate Gray on the spot had he chosen to do so.[20]
(Tr. 136-37, 273.)

I find Estevez’s testimony credible.

Stephen
Countiss

Countiss,
the mine foreman, testified that he had observed Gray on an occasional basis
and found him to be a slow worker and observed Sheeks waiting for Gray to catch
up. (Tr. 124.) Sheeks had complained to Countiss about Gray as he was afraid of
losing his job based upon Gray’s performance. The other bolting crew also
complained about Gray’s slow bolting and Cornett told Countiss that Gray was
not hanging curtains as required. (Tr. 125-26.) I find this testimony credible
based upon the fact that Countiss was not alleged by Gray to harbor any ill
will towards Gray.

Countiss’
confirmation that no 40 foot cuts had been made in North Fork for a long period
of time due to poor roof conditions was corroborated by all other witnesses,
including the rank-and-file miners. It was also corroborated by Fain’s and
Doan’s testimony that none of the regular inspectors who frequented the mine
had ever seen any indication of deep cuts. The testimony that no deep cuts were
taken corroborates his testimony that Gray never made any complaints to that
effect.

By
Countiss’ account, he was present when Ison gave the February verbal warning to
Gray about his performance. While Ison told Fain that Countiss was not present
on this occasion, Ison and Sheeks both confirmed that a counseling session had
taken place and Sheeks testified Gray had been written up by Ison on more than
one occasion. (Ex. Compl.-C; Temp. R. 199-201, 205; Tr. 69-70.) Countiss recalled
a previous counseling by Ison that was signed by Gray and Ison and him for poor
performance that was not found in Gray’s personnel file. (Tr. 121-22, 133-35.) The
only way Sheeks would know of the multiple counseling sessions would have been
through Gray himself as Sheeks was not present at those counseling sessions. Sheeks’
testimony that Gray told him he had been written up more than once by Ison is
then consistent with Countiss’ testimony, which corroborates Sheeks’ testimony
that Gray told him he had been written up more than once by Ison. Had
management engaged in a concerted effort to manufacture evidence, particularly
documentary evidence, after Gray was fired to justify their actions as the
Complainant asserts, it would stand to reason that they would have “found” this
earlier signed counseling document as well which they did not. I find this
lends credence to Countiss’ testimony on the issue.

Countiss
testified that when Gray signed the April counseling letter, Gray appeared
angry and made a slashing motion at the end of his signature and then stomped
out of the room. (Tr. 120, 135-36.) As discussed above, this would account, in
part, for the appearance of Gray’s signature being inconsistent with some of his
known exemplars. It also stands to reason that Gray would have been angry.

While
Countiss confirmed that he did not tell Fain during his interview about the
earlier counseling warning, he did tell Fain that Sheeks had asked for another
roof bolting partner because Gray was making him look bad and that when “we got
on Gray” about his slow bolting he would improve for a few days and then revert
to bolting slowly again. (Ex. R-12; Tr. 132-33.) Countiss stated that Fain did
not ask questions regarding the other issues. Fain confirmed that he did not investigate
the ventilation curtain complaint when he conducted his initial interviews. (Temp.
R. 123-24.) It is apparent from the brevity of the written summary that the Countiss
interview lacked any detail and I therefore do not find Countiss’ omissions
detract from his credibility.

Summary

Overall,
I find Gray’s credibility to be lacking. I find that he did not engage in
protected activity by making any sort of safety complaints at the North Fork
mine. His allegations were likely contrived and fabricated as a result of being
denied unemployment benefits and hatched out of a disdain and animosity he
harbored for persons in positions of authority. I find that there is more than
substantial credible evidence presented by not only management but rank-and-file
miners and MSHA personnel as well to prove that no deep cuts were taken in this
mine during Gray’s employment and that he did not make a safety complaint
regarding the hanging of ventilation curtains. In sum, I find for the reasons
set forth above that Gray has failed to produce a scintilla of credible
evidence that he engaged in protected activity and has not established a prima
facie case.

My evaluation of the evidence as set
forth in my earlier decision stands as written. As the majority indicated in
its remand decision, it is important to consider “the nature of the evidence”
and “the integrity of our proceedings.” 35 FMSHRC at 2362. The nature of the
evidence is that Gray was counseled numerous times for poor performance by his
supervisors. When he failed to respond appropriately, he was formally counseled
and eventually fired. Gray thereafter embarked on a crusade against North Fork
raising broad and nondescript accusations of discriminatory behavior by his
foreman and the mine superintendent that are simply not substantiated by
credible evidence. His attempt to prevail was not fortified by the expert
testimony of Dr. Miller whose substandard methods of analysis and his apparent
bias make his inconclusive findings lacking in probative value.

For
the reasons set forth herein and as set forth in my original decision
incorporated by reference herein, I dismiss Mark Gray’s discrimination
complaint.

ORDER

It is hereby ORDERED
that the Complainant’s discrimination claim be DISMISSED.

/s/ Priscilla M.
Rae

Priscilla M. Rae

Administrative
Law Judge

Distribution:

Tony
Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

Wes
Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg,
KY 41858

Stephen
M. Hodges, Esq., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212

[1] Section
105(c)(1) of the Mine Act 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 of the exercise by such miner … of any
statutory right afforded by this Act.” Section 105(c)(2) permits the Secretary
of Labor to initiate an action on a miner’s behalf if he determines that
discrimination has occurred. Section 105(c)(3) permits a miner to file a
discrimination claim on his own behalf if the Secretary decides not to pursue
the claim, which is what occurred here.

[2] The temporary
reinstatement hearing was held on September 2, 2009. See 31 FMSHRC 1143
(Sept. 2009) (ALJ). Gray’s case has been the subject of multiple hearings. The
hearing transcripts are abbreviated as follows:

Transcript of
September 2, 2009 temporary reinstatement hearing – “Temp. R.”

Transcript of
December 15, 2010 proceedings on the merits – “Tr.”

Transcript of
December 16, 2010 proceedings on the merits – “Tr.II”

Transcript of
July 25, 2014 hearing taking expert testimony – “ET”

[3] In the closing
paragraphs of his petition for review, Gray also asserted that several of my
factual findings were unsupported by the record. (Pet. for Discretionary Review
17-18.) However, Gray did not revisit these assertions in his appeal brief,
instead focusing solely on the exclusion of the expert testimony, and the
Commission declined to address the assertions in its decision. This is
consistent with past cases where the Commission has deemed an issue abandoned
and declined to address it after the petitioner raised the issue in his PDR but
failed to argue it on brief. RNS Services, Inc., 18 FMSHRC 523, 526 n.6
(Apr. 1996), aff’d, 115 F.3d 182 (3d Cir. 1997); ASARCO Mining Co.,
15 FMSHRC 1303, 1304 n.3 (July 1993).

[4] Chairman Jordan
issued a dissenting opinion stating it was “highly speculative at best” to
anticipate that a different result would have been obtained if the experts had
testified. 35 FMSHRC at 2367-70 (Jordan, Chairman, dissenting). She opined that
a finding of forgery was far from inevitable based on Gray’s offer of proof,
and even if proven, the alleged forgery would not necessarily call into question
my prior credibility determinations. Id. at 2368-70. In this regard, she
noted that I had credited the testimony of witnesses who had nothing whatsoever
to do with the disciplinary warnings and that witnesses involved with the
warnings could still be credited as to matters unrelated to the warnings,
including whether Gray engaged in protected activity. Id.

[5] When addressing
expert testimony, the Commission has stated it is guided by the principles
established under Daubert and Rule 702 of the Federal Rules of Evidence. In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819,
1843 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096 (D.C. Cir. 1998). Rule 702 sets requirements for the admission
of evidence deriving from “scientific, technical, or other specialized
knowledge.” Daubert requires the trial court to evaluate whether the
theories and techniques underlying a witness’s testimony meet certain minimum
standards of reliability before allowing the witness to testify as an expert
under Rule 702. Although Daubert dealt specifically with Rule 702
testimony deriving from “scientific” knowledge, the Supreme Court subsequently
made clear that the principles set forth in Daubert apply equally to
testimony deriving from “technical, or other specialized knowledge,” including
experientially derived knowledge such as that possessed by forensic document
examiners like Miller. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 

[6] In Johnsted,
Saelee, and Fujii, the courts noted they were analyzing hand printing
rather than handwriting, although each of the courts spent considerable time
discussing the evidence on the reliability of handwriting analysis. I
find the distinction between handwriting and hand printing to be of minor
significance. See United States v. Prime, 220 F. Supp. 2d 1203, 1214 n.7
(W.D. Wash. 2002), aff’d, 431 F.3d 1147 (9th Cir. 2005).

[7] Sargur N.
Srihari, et al., Individuality of Handwriting, 47 J. Forensic Sci. 856
(July 2002).

[8] By analogy, in United
States v. Prime, the court relied in part on the Srihari study to find that
the premises of handwriting analysis were sound in the context of that
particular case, in which the FDE had been provided with a very extensive array
of writing samples that included 112 pages of known writing and 76 questioned
documents. 220 F. Supp. 2d at 1211-12.

[9] Michael J. Saks
& Holly VanderHaar, On the “General Acceptance” of Handwriting
Identification Principles, 50 J. Forensic Sci. 119 (Jan. 2005).

[10] North Fork did
not offer testimony on the circumstances surrounding the execution of the other
disciplinary warning, but presumably they would be similar.

[11] The
“explanation” section contains the following handwritten note: “Notified Mark
that his performance was poor that other could bolt more with same machine and
partner and that he is going to have to pick up on his job falling behind in
his duties even had complaints from his foreman and partner of his lack of
performance. Dayshift has shone [sic] lack of keeping up compared to other
shift.” (Ex. Compl.-B.)

[12] The
“explanation” section states: “Mark has been warned in the past about his work
performance and his job duties. His foreman Tom Cornett has brought it to my
attention and Mark’s that he would have to perform better on the job. With his
experience at his job he should be one of our top performers and Tom feels like
he isn’t tring [sic] or doesn’t care.” (Ex. Compl.-A.)

[13] Cornett became
Gray’s foreman one month before Gray was fired. (Tr. 227.)

[14] Gray never
worked in the 002 section which was located approximately 1½ miles away from
the 001 section. (Tr. 169; Tr. II 53.)

[15] Doan testified
that he went to the 002 section; however, it was clear from the testimony that
he went to observe the only roof bolting machine that had the rock deflector
shields (ATRS) installed which was Gray’s machine. Additionally, he testified
that he recognized “Tom” in the courthouse as the foreman on the section. (Tr.
153.) He also confirmed that he spoke with Gray during the inspection. The 002
section was located 1½ miles away from the 001 section. (Tr.II 53.) Additionally,
Estevez testified that the citation Doan issued that day was corrected during
the termination inspection by putting the spad number from the mine map on the
paperwork which coincided with the 001 section. (Tr.II 59.) I conclude Doan was
on the 001 section where Mark Gray was working.

[16] Counsel for
Gray objected to the photocopied notes being entered into evidence under the
best evidence rule, there being no originals by which to test their
authenticity or his credibility. (Tr. 235.) The objection was overruled as the
strict rules of evidence do not apply in administrative hearings before this
Commission. Additionally, as Gray alleges that these notes could have been
written at any time after Gray’s termination, having the originals would not
tend to prove or disprove this allegation. If there was a grand design as Gray
alleges to fabricate documents to prove poor performance after his termination,
Cornett could have just as easily have fabricated the entire notebook after the
fact as well. Additionally, Cornett produced the same photocopied entries at
the Temporary Reinstatement hearing at which time counsel for Gray did not
object to their admission. (Temp. R. 224.) Counsel stated that the court
advised Cornett to maintain the originals for trial but that comment was not
contained in the record of trial from the earlier hearing. What is contained in
the record is counsel for Gray asking Cornett to hold on to the originals
because he intended to subpoena them. (Temp. R. 252-53.) He never did so. (Tr.
234.) I have considered the fact that the original notebook was not produced in
my assessment of the credibility of the witness and the authenticity of the
notes themselves.

[17] I find the
entire issue of the alleged forgeries to be a red herring. The crucial point is
that there is no credible testimony to support Gray’s allegation that he engaged
in protected activity and he has failed to establish a prima facie case.
There is more than substantial evidence provided by MSHA inspectors,
rank-and-file miners and Gray’s statements themselves to establish that Gray
had been verbally counseled repeatedly by several managers for poor performance
that led to his termination.

[18] Gray did not
deny making this profane comment.

[19] Russell Ison
was called as a witness by the Complainant at trial but asserted his Fifth
Amendment rights based upon the advice of independent counsel and refused to
testify regarding the counseling documents at issue. I do not draw a negative
inference from this. Ison was represented by counsel at hearing and was
instructed by him to take the Fifth which is entirely understandable. His
attorney would not have been worth the retainer had he allowed Ison to testify.
It appears MSHA sent the questioned documents to the US Attorney to investigate
Gray’s allegations of forgery. After receiving Belcastro’s handwriting analysis
report of August 31, 2009, the US Attorney declined to pursue Gray’s claim
sometime thereafter.

[20] It is not
Commission’s place to decide whether the operator’s disciplinary program is
fair. In analyzing an operator’s asserted business justification for taking
adverse action against an employee, the Commission is limited to a “restrained”
analysis and may not substitute its own business judgment for that of the
operator. Cumberland River Coal Co. v. FMSHRC, 712 F.3d 311, 319 (6th
Cir. 2013); Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937-38 (Nov.
1982); Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2516-17 (Nov. 1981), rev’d on other grounds, 709 F.2d 86
(D.C. Cir. 1983).