Secretary of Labor on behalf of Regald Robbins v. Alden Resources, LLC

Plain-English summary

Regald Robbins alleged that Alden Resources suspended him, moved him to a less favorable shift, and fired him after he raised concerns about a faulty scrubber and unsafe roof conditions. The company said he was discharged for unexcused absences and disputed his account of the scheduling changes. Judge James G. Gilbert held that the complaint was not frivolously brought because Robbins described protected safety activity, management knowledge, and adverse actions close enough in time to support a possible discrimination claim. At the temporary-reinstatement stage, the judge declined to resolve the witnesses' conflicting accounts or decide the ultimate merits. He ordered Alden to return Robbins immediately to his first-shift section-foreman position, with a 40-hour week at $28 per hour, normal overtime, and full rights and benefits.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c); 29 C.F.R. § 2700.45(d)
• Outcome: Temporary reinstatement was granted to Robbins' former first-shift section-foreman position with full pay and benefits.
• Later order: Reinstatement was later tolled during a mine shutdown in kent-2014-594-d-alj.
• Key point: Temporary reinstatement requires only a non-frivolous discrimination claim, so credibility conflicts are reserved for the merits proceeding.

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:
202-434-9950 / FAX: 202-434-9949

July 29, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA), on behalf

of REGALD ROBBINS,

Complainant,

v.

ALDEN RESOURCES, LLC,                

Respondent.

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. KENT 2014-594-D

BARB-CD-2014-04

Mine ID: 15-17691

Mine: Mine #3

AMENDED ORDER
ON TEMPORARY REINSTATEMENT

Appearances:   Angele Gregory, Esq., U.S. Department of
Labor, Office of the Solicitor

Nashville, Tennessee for the
Complainant

Tony Oppegard, Esq., Attorney-at-Law
Lexington, Kentucky for Regald Robbins

Billy Shelton, Esq., Jones Walters
Turner & Shelton, PLLC, Lexington, Kentucky

for Respondent

Before: Judge James G. Gilbert

This
case is before me upon an application for temporary reinstatement filed by the
Secretary on behalf of the complainant under section 105(c) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c) and 29 C.F.R. §2700.45. 

On June 25, 2014, Respondent made a
timely request for a hearing that was held on July 22, 2014, in Louisville,
Kentucky.

I.                  
Facts
Not in Dispute

1.      Respondent Alden
Resources, LLC (“Alden Resources” or “Respondent”) is an “operator” as defined
in section 3(d) of the Mine Act.

2.      Mine #3, located
in Knox County, Kentucky is a coal mine and is subject to the jurisdiction of
the Mine Act.

3.      This proceeding
is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission, and its designated Administrative Law Judge pursuant to sections
105 and 113 of the Mine Act.

4.      Prior to his termination
by Alden Resources, Regald Robbins was a “miner” as defined in section 3(g) of
the Mine Act.

II.               
Summary
of Relevant Evidence

Regald Robbins was employed by Alden
Resources at Mine #3.  He began his employment with Alden Resources in 2011.
Gov. Exh 1.  Prior to his termination on April 26, 2014, Robbins was section
foreman for the first shift (commencing at 7:00 a.m. and ending at 4:00 p.m.).
Tr. 16-18. 

On March 13, 2014, Robbins was working
the continuous miner in section 007 of Mine #3.  Tr. 44.  On that day, he had a
conversation with Mine Superintendent Ernie Miller.  Id.  Robbins
testified that he expressed to Miller his concern about operation of the
continuous miner with a faulty scrubber.  Tr. 44-45.  Robbins stated that
Miller told him to continue the operation of the continuous miner because the
MSHA Inspector had left for the day.  Id.  Robbins stated that operation
of the continuous miner with the faulty scrubber would likely result in another
citation from MSHA.  Id.  He was told by Miller to do so anyway.  Id.

After that date, Robbins testified that
his formally cordial relationship with Miller changed. Tr. 46.  He stated that
Miller was no longer willing to engage in “friendly chit-chat” and that he had
become distant.  Tr. 62.

On March 24, 2014, MHSA Inspector
Wendill Fuson conducted an inspection of Mine #3, including the area of section
007 of the mine in which Robbins was section foreman.  Tr. 19; Resp. Exhs.
5-8.  As part of the inspection, the mine received four 104(d) citations for
roof issues, including one citation for failure to conduct proper pre-shift
examinations.  Resp. Exhs. 5-8.  At a safety meeting convened the following
day, several members of Alden Resources management, including Ernie Miller,
George Saylor, Frank Shannon, Ted Harrell, Sam Brashear, Shannon Jones, and
Globe Specialty Metals Vice-President Jean Duplessis, met with the section
foremen of the mine that received the citations, including Robbins, Hobart
Teague, Bryan Lewis, and Lawrence Bray.  Tr. 22.  In the meeting, conducted by
Duplessis, the attendees were asked if they had any concerns about the safety
of the mine.  Tr. 23.  Robbins testified that, in response to this question, he
stated that he intended to place five-foot bolts in the roof of section 007. 
“That’s when Fred said, do you all think this mine is hazardous or unsafe? That’s
when I said, yes, I think we need to start putting up five-foot roof bolts
because the top is busted up everywhere.”  Tr. 23.  No one else answered
the question or offered any comments regarding the safety of the mine.  Tr. 24.

At the meeting, Robbins was informed
that he and the other foremen for that section were suspended for three days. 
Tr. 24.  On March 27, 2014, the day before the termination of the three day suspension,
Miller telephoned Robbins and told him he would be working the weekend shift. 
Tr. 27.  Miller stated that Robbins was to work Fridays, Saturdays, and Sundays
until he completed a course on pre-shift examinations.  Id.  Miller told
Robbins that after the completion of the course, he would return to his regular
shift.  Id.  Following those instructions, Robbins worked the weekend of
March 28, 2014, and worked the weekend beginning on Friday, April 4, 2014.  Tr.

28.  Robbins attended the required training on Tuesday, April 8, 2014, and
returned to the mine for his regular shift on Wednesday, April 9, 2014,
consistent with Miller’s instructions.  Tr. 30.   However, when Robbins
returned to work on April 9, 2014, he was informed by Miller that he was to
remain on the weekend shift.  Id.  Robbins asked why, and Miller said
that among other things, his men did not like him.  Tr. 30-31.  Miller did not
alter Robbins’ weekend work schedule at that time.  Tr. 31.  Robbins then had a
conversation with Shannon in which he requested leave for the following weekend
due to his wife’s surgery.  Tr. 33.  Shannon approved the leave for the
requested dates of Friday, April 18, 2014, through Sunday, April 20, 2014, to
attend to his wife’s scheduled surgery.  Id.

Robbins returned for his shift on
Friday, April 11, 2014, through Sunday, April 13, 2014.  Tr.  32.  As he had
approved leave for the following weekend, Robbins did not return to work the
weekend of April 18, 2014.  On April 24, 2014, Robbins received a telephone
call from Harrell in which Harrell informed Robbins he was terminated for
unexcused absences.  Tr. 36.  Robbins requested to meet with Shannon and a
meeting was held the following day with Shannon, Harrell, and Saylor.  Tr. 36-37. 
Robbins protested his termination and explained that he had followed the
schedule given to him by Miller.  Tr. 38.  As Miller was not at the meeting,
Shannon stated they would meet after he discussed the matter with Miller.  Tr. 38-39. 
The following day, April 26, 2014, Shannon met with Robbins and told him that
Miller denied giving him the modified schedule and Robbins was terminated.  Tr.
39.

Respondent presented several witnesses
whose stories diverged from Robbins’ testimony. Regarding the meeting on March
25, 2014, Duplessis stated that Robbins did make a comment about putting up
five-foot roof bolts but that he did not consider the comment a safety
complaint.  Tr. 112.  Shannon testified that Duplessis asked the question of
safety concerns but that Robbins’ comments were not in response to that
question.  Tr. 221.  Saylor corroborated Shannon’s testimony on this issue,
though Saylor testified that Shannon asked the question. Tr. 136-37.

Saylor claimed to have explained to
Robbins that his schedule for the weekend meant Thursday, Friday, Saturday, and
Sunday and either Monday or Tuesday third shift.  Tr.  140-41.  Saylor
testified that the conversation with Robbins regarding his schedule occurred on
Sunday, April 13, 2014.  Id.  Saylor also testified that when Robbins
failed to show for the Monday or Tuesday shift on April 14th and 15th,
he reported the absence to Miller but did not write up Robbins for his
absence.  Tr. 157.  Shannon testified that he took Saylor’s statement as to the
conversation with Robbins on April 13th as true, although Robbins
denied that Saylor ever said anything to him regarding his schedule.  Tr. 241-42. 
Respondent argues that Robbins’ unexplained absences were the sole basis for
the termination.

Complainant argues that Respondent’s
termination for unexcused absences was merely a pretext.  Complainant’s case
theorizes that the termination was likely the result of either the protected
activity that took place on March 13, 2014, when Robbins argued with Miller
about the inoperable scrubber, or as the result of the comments he made at the
safety meeting on March 25, 2014, or a combination of both.  Complainant argues
that Miller’s attitude toward Robbins after the scrubber incident changed, and
that it was also Miller, who now had a level of animus toward Robbins, who gave
Robbins the apparent misinformation regarding the shift he was supposed to
work.  Thus, Complainant surmises that Miller set up Robbins for his
termination by deliberately misleading him as to his proper schedule.

III.            
Discussion

Section 105(c) of the Mine Act
prohibits discrimination against miners for exercising any protected right under the Mine Act.  The purpose of the protection is to encourage
miners “to play an active
part in the enforcement of the [Mine] Act” recognizing that “if miners are to be
encouraged to be active in matters of safety and health they must be protected against any
possible discrimination which they might suffer as a result
of their participation.”  S. Rep. No. 181,
95th Cong. 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 623 (1978).

Unlike a trial on the merits of a discrimination complaint brought by the Secretary where the Secretary bears the burden
of proof by the preponderance of the evidence,
the scope of this
temporary reinstatement proceeding is limited by statute.
 Section 105(c) of the Mine Act, as
well as Commission Rule 45(d), 29 C.F.R. §2700.45(d), limit the issue in an application for temporary reinstatement to whether the subject discrimination complaint has been “frivolously
brought.”   Rule 45(d) provides:

The scope of a hearing
on an application for temporary reinstatement is limited
to a determination by the Judge
as to whether the miner’s
complaint was frivolously brought. The burden of proof shall
be upon the Secretary to establish that the
complaint was not frivolously brought.
In support of his application for temporary reinstatement the Secretary may limit his presentation to the testimony
of the complainant. The respondent shall have an opportunity to cross-examine any witnesses called by the Secretary and may present
testimony and documentary evidence in support of its position
that the complaint
was frivolously brought.

29 C.F.R. § 2700.45(d).

In its decision
in Jim Walter Resources, Inc. v. FMSHRC,
920 F.2d 738 (11th
Cir. 1990), the Court noted that the “frivolously brought” standard is entirely different from the scrutiny applicable to a trial on the merits of the underlying discrimination complaint.
 In
this regard, the Court stated:

The legislative history
of the Act defines the ‘not frivolously brought standard’ as indicating whether
a miner’s ‘complaint appears to have merit’—an interpretation that is strikingly similar
to a reasonable cause standard.  In a similar context involving the propriety of agency actions
seeking temporary relief, the former fifth circuit construed the ‘reasonable cause to believe’ standard as meaning whether an agency’s ‘theories of law and fact are not insubstantial or frivolous.’

920 F.2d at 747 (citations
omitted).

While the Secretary
is not required to present
a prima facie case of discrimination to prevail in a temporary reinstatement proceeding, it is helpful
to review the elements of a
discrimination claim to determine if the evidence
at this stage satisfies the “not frivolously brought” standard. As a general
proposition, to demonstrate a prima facie case of discrimination
under section 105(c) of the Mine Act, the
Secretary must establish that the complainant
participated in a safety related activity
protected by the Mine Act, and, that the adverse
action complained of was motivated, in some part, by that protected activity.  See Sec’y of Labor on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980) rev'd
on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3d Cir. 1981); Sec’y of Labor on behalf
of Robinette v. United
Castle Coal Co.,
3 FMSHRC 803, 817-18 (Apr. 1981).

It is not the judge’s
duty to resolve conflicts in testimony or to entertain the operator’s rebuttal or affirmative defenses at the preliminary stage of the proceedings. Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717 (July 1999). It is sufficient to find the Complainant engaged in protected activity, the respondent had knowledge of that activity, and there was a coincidence in time between
the protected activity and adverse
action. Sec’y of Labor on behalf of Williamson v. CAM Mining,
LLC, 31 FMSHRC 1085 (Oct. 2009).

For its part, Respondent argues that there exists a
lack of nexus between the alleged protected activity and the termination. 
However, Respondent views the case too narrowly.  At this stage, Complainant
need only make a non-frivolous allegation.  Complainant’s theory of his case is
a bit more nuanced than Respondent acknowledges.  Complainant cites two
protected activities; the first occurring on March 13, 2014, and the second
occurring on March 25, 2014.  Likewise, Respondent alleges two adverse actions.
 The first being placed on the weekend shift after completion of the mandatory
training while presumably similarly situated individuals (namely Lawrence Bray)
were not similarly punished after the completion of the training.  Management
testified that Bray returned to work as shift foreman on or about April 8,
2014.  Tr. 238.  Thus, the nexus is approximately three weeks.  The second
adverse action was the termination of his employment on June 26, 2014.

The first adverse action is clearly
in a timeframe closely related to the date of Robbins statements in the safety
meeting.  The second adverse action, the termination on April 26, 2014, is
about six weeks after the initial alleged protected activity.  Intervening in
that time period is the allegation that Miller deliberately misled Robbins
regarding his schedule, the three-day suspension, and other factors relating to
the discrimination claim.  I cannot state as a matter of law that the adverse
action in this case is not so close in time to the protected activities alleged
to render the allegation frivolous.  The Commission has found lengths as far as
several months as being within the nexus to permit a finding of discrimination.
See, e.g., CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks); Sec'y
of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan.
1999) (a 16-month gap existed between the miners’ contact with MSHA and the
operator’s failure to recall miners from a lay-off; however, only one month
separated MSHA’s issuance of a penalty resulting from the miners’ notification
of a violation and that recall failure). “We ‘appl[y] no hard and fast criteria
in determining coincidence in time between protected activity and subsequent
adverse action when assessing an illegal motive. Surrounding factors and
circumstances may influence the effect to be given to such coincidence in
time.”’ All American Asphalt, 21 FMSHRC at 47 (quoting Hicks v.
Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991). Thus, I cannot
conclude that the allegations regarding the timing of the protected activity to
the adverse action are frivolous under existing Commission precedent.

Respondent also argues that the statement made by
Robbins at the safety meeting on March 25, 2014, does not constitute “protected
activity” because it was not in response to the question posed to the group
about the safety of the mine.  This argument fails for several reasons.  First,
Robbins’ statement is related to a safety issue that was serious enough to
result in MSHA citations.  Robbins’ statement relates to a repair that could or
should be done to protect miners from danger of roof collapse, which was the
subject of the citation.  Whether that is or is not the most appropriate repair
or remedy for the situation is not an issue.  Thus, the statement certainly is
sufficient to render it a non-frivolous allegation of protected activity.  
Also, Respondent’s argument requires me to accept Respondent’s witnesses’
testimony as more credible than Robbins’ testimony that his statement indeed
was in response to the query presented by management regarding safety of the
plant.  That calls for a credibility determination that is beyond the scope of
this temporary reinstatement proceeding.  Finally, the argument that the
potential protected activity must be in response to a specific query from
management in a meeting held to discuss safety issues seems to me to be quite a
stretch.

While Respondent presented witnesses in this hearing
to contradict facts testified to by Robbins, the temporary reinstatement
hearing is not the forum to try Complainant’s discrimination case or
Respondent’s defense.  In the limited review that is the subject of a temporary
reinstatement hearing, Complainant need only show that the allegations
presented in the Complaint are not frivolously brought.  The Complainant
succeeded in doing so at this hearing.  The evidence is sufficient to establish
reasonable cause that Robbins did engage in protected activity, management was
aware of the protected activity, and there was a sufficient nexus in time
between the protected activity and the adverse actions, including his
termination.

The Secretary seeks reinstatement to Robbins’ former
position as section foreman.  Respondent argues that reinstatement should be to
the position he occupied on the date of his termination, which was electrician
troubleshooter on the weekend shift.  Respondent offers that since the weekend
shift has been eliminated, Robbins can return to his position as electrician
troubleshooter on the first shift during the week. 

The goal of the temporary reinstatement is to place
the miner in the same financial position as though the alleged discrimination
had not occurred.  This requires that we turn back the clock to March 25, 2014,
at which time Robbins was a section foreman at Mine #3, prior to his
suspension, and prior to the decision to place him on the weekend shift, both
of which are included as allegations of discrimination under the Complaint, and
resulted in fewer hours, and therefore less pay than Robbins received prior to
March 25, 2014. 

ORDER

For the reasons
set forth above,
the Secretary’s Application for Temporary Reinstatement is GRANTED. 

Alden Resources, LLC is ORDERED to immediately
reinstate Regald Robbins to his former
position as section foreman in Mine

3 during the first shift (7:00 a.m. to 4:00 p.m.) with all rights and benefits to which he is

entitled.  This includes a forty-hour workweek at the rate of pay of $28 per
hour, as well as all overtime customarily available to similarly situated
employees.

/s/ James G. Gilbert

James
G. Gilbert

Administrative
Law Judge

Distribution: (Electronic and U.S. Mail)

Billy Shelton, Esq., Jones, Walters, Turner & Shelton,
PLLC, 151 N. Eagle Creek Drive, Suite 310, Lexington, KY 40509; [email protected]

Angele Gregory, Esq., U.S. Department of
Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN
37219; [email protected]

Regald Robbins, 227 Kent Road, Harrogate, TN 37752

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522; [email protected]

Wes Addington, Esq., Appalachian Citizen's Law Center, 317
Main St., Whitesburg, KY  41858; [email protected]