Secretary of Labor and Jonathan Holskey v. Pennyrile Energy, LLC (ALJ decision, October 30, 2017)

Read the official release (fmshrc.gov)

Plain-English summary

Jonathan Holskey complained about dust-control measurements, belt examinations, faulty ram-car brakes, accident reporting, and being assigned air readings without training. He reported that a ram car rolled and injured his foot, ankle, back, and neck, and Pennyrile Energy terminated him 17 to 32 days after the cited safety activity. The company relied on Holskey's probationary status and challenged his account of the accident. Judge Kenneth R. Andrews found substantial evidence of protected activity, management knowledge, close timing, and hostility sufficient to make the discrimination complaint non-frivolous. He ordered Holskey immediately returned to his former job with the same pay, overtime, and benefits pending a final merits disposition.

Decision snapshot

• Cited authority: Section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2)
• Outcome: Jonathan Holskey was ordered immediately and temporarily reinstated to his former job and compensation.
• Key point: Probationary or at-will status does not permit termination for Mine Act protected activity when the preliminary evidence supports a non-frivolous retaliation claim.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF

ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,

SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:

412-920-7240 / FAX: 412-928-8689

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

and JONATHAN HOLSKEY,

Complainants

v.

PENNYRILE ENERGY, LLC,

Respondent

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. KENT 2018-0004-D

MSHA Case No. MADI-CD-2017-05

Mine: Riveredge Mine

Mine ID: 15-19424

AMENDED DECISION AND ORDER [1]

REINSTATING JONATHAN HOLSKEY

Appearances:   Thomas Motzny, Esq., Office of the Solicitor, U.S.

Department of Labor, Nashville, Tennessee, Representing the Secretary of Labor

Tony

Oppegard, Esq., Lexington, KY, Representing Complainant Jonathan

Holskey

Mark E. Heath, Esq., Spilman,

Thomas & Battle, PLLC, Charleston, West Virginia, Representing Pennyrile

Energy, LLC

Before:            Judge Andrews

Pursuant

to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine

Act” or “Act”), 30 U.S.C. §801, et. seq. , and 29 C.F.R. §2700.45, the

Secretary of Labor (“Secretary”) on September 27, 2017, filed an Application

for Temporary Reinstatement of miner Jonathan Holskey (“Holskey” or “Complainant”)

to his former position with Respondent Pennyrile Energy LLC, (“Pennyrile” or

“Respondent”) at the Riveredge Mine pending final hearing and disposition of

the case.

According

to Commission Rule 45, a request for hearing must be filed within 10 days

following receipt of the Secretary’s application for temporary reinstatement.

29 C.F.R. §2700.45(c ). A timely request for hearing was filed on October

12, 2017, and a hearing was held on October 19, 2017, in Madisonville,

Kentucky. The parties had the opportunity to present witnesses, documentary

evidence, and arguments in support of their positions.

Discussion of Relevant Law

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,

95 th Cong., 1 Sess. 35 (1977), reprinted in Senate

Subcommittee on Labor, Committee on Human Resources, 95 th Cong., 2 nd

Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 ,

at 623 (1978).

Congress

created the temporary reinstatement as “an essential protection for complaining

miners who may not be in the financial position to suffer even a short period

of unemployment or reduced income pending the resolution of the discrimination

complaint.” Id.

at 624-25.

Temporary

Reinstatement is a preliminary proceeding and narrow in scope. As such, neither

the judge nor the Commission is to resolve conflicts in testimony at this stage

of the case. Sec = y

of Labor on behalf of Albu v. Chicopee Coal Co ., 21 FMSHRC 717, 719 (July

1999). The substantial evidence standard applies. [2]

Sec = y

of Labor on behalf of Peters v. Thunder Basin Coal Co. , 15 FMSHRC 2425,

2426 (Dec. 1993). A temporary reinstatement hearing is held for the purpose of

determining A whether

the evidence mustered by the miners to date established that their complaints are non-frivolous, not whether

there is sufficient evidence of discrimination to justify permanent

reinstatement. @ Jim

Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990).

In adopting section 105(c), Congress indicated that a

complaint is not frivolously brought if it A appears

to have merit. @ S. Rep. No. 181, 95th Cong.,

1st Sess. 36-37 (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 624-25 (1978). In

addition to Congress = A appears

to have merit @ standard, the Commission and federal

circuit courts have also equated A not frivolously brought” to A reasonable cause to believe” and A not insubstantial.” Sec'y of Labor on behalf of Price v.

Jim Walter Res., Inc. , 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd , 920

F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that

establishing ‘reasonable cause to believe’ that a violation of the statute has

occurred is a ‘relatively insubstantial’ burden.” Sec’y of Labor on behalf

of Ward v. Argus Energy WV, LLC , 2012 WL 4026641, *3 (Aug. 2012) citing Schaub

v. West Michigan Plumbing & Heating, Inc. , 250 F.3d 962, 969 (6th Cir.

2001).

In order to establish a prima facie case of

discrimination under section 105(c) of the Act, a complaining miner must

establish (1) that he engaged in protected activity and (2) that there was an

adverse action, which was motivated in any part by that activity. Sec = y of Labor on behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786 (Oct. 1980), rev = d on other grounds sub nom. Consolidation Coal Co. v.

Marshall , 663 F.2d 1211 (3rd Cir. 1981); Sec = y of Labor on behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC 803 (April 1981).

In the instant matter, the Secretary and Holskey need not

prove a prima facie case of discrimination with all of the elements

required at the higher evidentiary standard needed for a decision on the

merits. Rather, the same analytical framework is followed within the

“reasonable cause to believe” standard. Thus, there must be “substantial

evidence” of both the applicant = s protected activity and a nexus

between the protected activity and the alleged discrimination. To establish the

nexus, the Commission has identified these indications of discriminatory

intent: (1) hostility or animus toward the protected activity; (2) knowledge of

the protected activity; and (3) coincidence in time between the protected

activity and the adverse action. Sec = y

of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has

acknowledged that it is often difficult to establish a A motivational nexus between protected activity and the

adverse action that is the subject of the complaint. @ Sec = y of Labor on behalf of

Baier v. Durango Gravel, 21 FMSHRC 953,

957 (Sept.1999). The Commission has further considered disparate treatment of

the miner in analyzing the nexus requirement. Secretary of Labor on behalf

of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510 (Nov. 1981), rev = d on other grounds ,

709 F.2d 86 (D.C. Cir. 1983).

Evidence

On

July 31, 2017, Holskey executed a Summary of Discriminatory Action, which was

filed with his Discrimination Complaint. In this statement, he alleged the

following:

I am an experienced coal miner. I was employed at Pennyrile

Energy, Riveredge Mine until I was discharged on 6/2/2017. I suffered an at

[sic] work accident on 05/15/17 causing injury to my right leg and ankle. I

reported the accident this same night 5/15/17. The brakes on the green car on

1 unit did not set up properly. When I got out of the car it rolled back about

two feet. I reported this safety hazard. I worked on 05/16/2017 although in

extreme pain and discomfort. When I came out of the mine that morning I

insisted on filling out an accident report and going to the doctor. When I got

outside after the shift I filled out the accident report. On June 2, 2017, I

was given a letter stating I was terminated effective June 2, 2017. I am

requesting my job back, all lost pay, bonuses, health insurance, etc., that I

would have otherwise earned.

Application

for Temporary Reinstatement, Exhibit B.

The

Declaration of Special Investigator James Jordan was also filed with the

Application for Temporary Reinstatement, and in pertinent part is as follows:

I am a

special investigator employed by the Mine Safety and Health Administration,

United States Department of Labor. I am assigned to the Coal District 10 Office

in Madisonville, Kentucky.

As part of my

responsibilities, I investigate claims of discrimination filed under Section

105(c) of the Mine Act. In this capacity, I have reviewed and gathered

information as part of an ongoing investigation arising from a complaint filed

by Jonathan Holskey against Pennyrile Energy, LLC (“Pennyrile”). My findings as

a result of the investigation disclosed the following:

a.       

Jonathan

Holskey was previously employed by Pennyrile at the Riveredge Mine in McClean

[sic] County, Kentucky. Holskey began working at Riveredge as an employee of

Pennyrile on or about March 15, 2017. Previously, he had worked at that mine as

a contract employee. At the time of his discharge on June 2, 2017, Holskey

worked on the third shift.

b.      

Holskey was

injured at the Riveredge mine on or about May 15, 2017. When Holskey exited a

ram car, the parking brake failed, and the car rolled over his foot and leg. He

reported this injury and complained about the ineffective ram car brakes to

Tommy Boyd, the lead man on the third shift.

c.       

Holskey

returned to work the next day, May 16, 2017. Holskey was told by lead man Tommy

Boyd to take it easy because of the injury he received the night before. Near

the end of the shift, Boyd asked Holskey to finish the dust parameter checks on

the section and sign the board indicating that the examination had been

completed. Holskey told Boyd that he did not know how to do the “pitot tube”

reading on the continuous miner, so he felt uncomfortable performing the

examination and signing off on the board. Holskey also asked Boyd to fill out

an accident report form during that shift for the accident which occurred on

the previous shift. After that shift, Holskey and Boyd met with Susan Dixon, a

person in human resources, and Kris Maddox, the underground superintendent,

where Holskey’s injury was discussed.

d.      

Holskey had

also made previous complaints to Boyd and others about Pennyrile mining coal on

the third shift without the proper belt examinations being done during the

shift, as required by 30 C.F.R. § 75.362(a)(1).

e.       

Due to the

injury sustained on May 15 th , Holskey missed approximately two weeks

of work. When he returned to work, on or about May 30, 2017, Holskey worked two

additional days. After clocking in on the evening of June 1, 2017, Holskey was

told to go home and return on the morning of June 2, 2017. When he returned the

next morning, Holskey was terminated, allegedly because he was a probationary

employee.

Based upon my

investigation of these matters, I have concluded that Holskey’s complaint of

discrimination was not frivolously brought.

Application

for Temporary Reinstatement, Exhibit A.

Summary of Testimony

Jonathan

Holskey has approximately 14 years of coal mining experience. Tr. 14. He has

worked as a roof bolter, continuous mine operator, face boss, second shift mine

foreman, and lead man. Tr. 15. Holskey has Kentucky and West Virginia face

bossing papers, MSHA dust certification, and explosive blasting certification.

Tr. 15.

Holskey began working at

Pennyrile’s Riveredge Mine in late November of 2016. [3]

Tr. 15-16. He first worked through GMS for roughly four months as a contractor

as a continuous miner operator and scoop man. Tr.16.

On March 15, 2017, Holskey was

hired by Pennyrile as a continuous miner operator. Tr. 16-17, 46-47. When

hired, Holskey signed a two-sentence document, which stated: “I understand that

if Pennyrile Energy, LLC employs me, it is on a 90-day trial period (this means

90 working days). If at any time during this 90 working day period either party

is dissatisfied, employment will be terminated.” Tr. 49; RX-1. Until May 1, 2017,

he worked on a rotating shift, where he would work two weeks on the dayshift

and then two weeks on the second shift. [4]

Tr. 16-17, 44-45. On May 1, Superintendent Kris Maddox asked Holskey to

transfer to third shift, and Holskey agreed to do so. [5]

Tr. 17, 44-45.

The third shift is a “dead shift,”

meaning that it is used for maintenance, rock dusting, and setting up

equipment. Tr. 18. The third shift lasts from 11 pm to 7 am, and is responsible

for setting up the unit for the day shift. The third shift has approximately

seven people, with two mechanics at the greaser, a lead man, and three setup

guys. Tr. 109. The third shift does some production when “early coal” comes in

at 5 am. [6] Tr. 19. Holskey testified

that he was originally supposed to be lead man, making $28 per hour. [7]

Tr. 17. The lead man is the responsible person on the unit; he sets up the

unit, gets it ready for the day shift to run coal. Tr. 18. As the lead man,

Holskey “took care of the miners,” by setting bits, cleaning out ductwork, and

setting up in a fresh cut. Tr. 18.

Holskey had two issues concerning

his job on the third shift. Tr. 20. His first issue was that he was supposed to

be a face boss, but instead was doing the work of a laborer. Tr. 20. He was

originally told by his face boss, Matt Allen, that he would be taking the

position as third shift face boss making $28 per hour. [8] Tr. 81. His second issue

was that the shift was ordered to run early coal when the belts had not yet

been examined and the dust parameters were not done correctly. Tr. 20. Holskey

complained about the problems concerning belt exams and dust parameters every

day to his face boss, Tommy Boyd. Tr. 20, 88. Boyd responded that they were

going to do what they were instructed to do. Tr. 21.

On the night of May 15—when Holskey’s

accident occurred—Holskey had arrived at the unit and found the green ram car

was located right behind the shack, one break outby the feeder. [9]

Tr. 21, 50. Holskey began by hauling rock dust from bottom to the unit using

the ram car. [10]

Tr. 21, 23, 50. This entails getting a ram car and going to the bottom of the

slope where the rock dust hole was located, loading it, and bring it to the

unit. Tr. 21.

When Holskey went to park the ram

car, he hit the panic bar, which “knocked the breaker on the car,” and engaged

an emergency disconnect that locks the car up and shuts it down completely. Tr.

21, 51-54. Holskey turned around in his seat, and was getting out, when the

brakes failed and the ram car backed over top of him. Tr. 21-22. The car backed

over him approximately one foot, dragging him under the cab of the car. Tr. 22.

Holskey sustained a crushing injury to his right foot, a deep bruise on his

Achilles’ heel, a bruise on his back, and a puncture hole in the back of his

neck. [11] Tr. 23, 40.

Holskey dragged himself out from

under the ram car, and walked around the back to the shack. Tr. 22-23. Holskey

saw his face boss, Tommy Boyd, at the shack, sitting at the feeder, marking up

chain hangers. Tr. 23. Holskey felt nauseous, so he could not talk to Boyd, and

instead he walked back to the shack and sat down. Tr. 23. A few minutes later,

after Holskey had gathered his composure, he flagged Boyd down. Tr. 23. Holskey

told Boyd what happed, how the brakes had failed and that the car backed over

his foot and back and slammed him to the ground. Tr. 23-24. Holskey

specifically complained that the brakes on the ram car failed. Tr. 24. Boyd

responded, “Well, let’s go check it out.” Tr. 23. They went back to where the

incident occurred, and it was visible where the chain on the car shifted back,

with Holskey’s feet and handprints from his attempts at escape. Tr. 23-24. Boyd

said, “It’s all right, Holskey. Let’s go to the shack and sit down and take it

easy for the rest of the shift.” Tr. 23.

Back at the shack, Holskey took off

his boot and showed Boyd the swelling. Tr. 24. Boyd said, “Sit here for the

rest of the shift and take it easy.” Tr. 24. Boyd sat in the shack for the

remainder of that shift. Tr. 24.

The next day, Holskey came into

work, but could not work. Tr. 25. Boyd told Holskey, “Just come on, you can sit

at the shack and take it easy.” Tr. 25. So, on the night of May 16, Holskey sat

in the shack and did not do anything until 5 am. Tr. 25. At that time, Boyd had

to leave work, and Holskey assumed the responsibilities of the face boss. Tr.

25. These included the pre-shift examinations and dust parameters. Tr. 25.

Holskey told Boyd and third shift mine foreman Matt Greer that he wasn’t

comfortable with the dust parameters because he had never been trained or

performed a Pitot reading. [12]

Tr. 25, 40. Greer responded that Holskey should just do the best he could. Tr.

25.

At approximately 6:55 am, Holskey

went outside and saw that Boyd was still there. Tr. 26. Holskey went to

retrieve an accident report, and testified that he “[caught] grief” from

Superintendent Kris Maddox and Susan Dixon from HR. Tr. 26-27. They did not

want Holskey to fill out the accident report or go to his doctor. Tr. 41. At

first, they refused to show Holskey where the accident reports were located,

but eventually they showed him. Tr. 41. Holskey asked Boyd to sign it, but Boyd

said that he would fill it out while Boyd talked to the MSHA inspector. [13]

Tr. 27. Holskey had to sign it quickly because Boyd was in a rush to leave to

his daughter’s graduation. Tr. 61. Holskey testified that he did not have an

opportunity to review the accident report. Tr. 61. Holskey then went to Maddox

and Dixon to discuss which doctor Holskey would see. Tr. 27. They wanted

Holskey to see a doctor in Madisonville, and Holskey wanted to see a doctor in

the same facility closer to his house in Owensboro. Tr. 27.

After the conversation with Maddox

and Dixon, Holskey went straight to the urgent care clinic, where the doctor

put Holskey in an orthopedic boot, took x-rays, explained his injuries, and

sent him home. Tr. 29. The doctor told Holskey to continue to wear the boot,

and that the more he walked on it the better he’d work it out. Tr. 29.

When Holskey went to work that

night, a safety man called “Slick” Burnet met him at the time clock and asked

Holskey for his papers. Tr. 29. Holskey handed them to Burnet, and Burnet said,

“Well, I got to call Keith [Whitehouse] because you got some restrictions.” Tr.

29. Whitehouse said that because of Holskey’s restrictions, he couldn’t work

that night, so Holskey went home. Tr. 30.

The next morning, Holskey went back

to the doctor to try to get some of the safety restrictions lifted. Tr. 30.

Holskey continued going to the doctor every third day, because he felt that his

injuries were getting better. Tr. 31. On Friday, the doctor told Holskey that

if he wanted to be released to go back to work Sunday night, he would sign the

release. Tr. 31. On Sunday night, Holskey was preparing to go back to work, but

his foot was still giving him some issues, so he went back to the doctor on

Monday and the doctor placed Holskey back on the restrictions. [14] Tr. 31.

Approximately one week after the

injury, Holskey was released back to work, but he was not able to perform work

because he still had to wear the boot and elevate his foot with ice. Tr. 32.

Holskey’s foot was so swollen that the doctor was considering lancing it open

in order to relieve the swelling. Tr. 33.

On May 30, Holskey was released to

work a second time. Tr. 33-34. When he returned, he was taken off the unit and

put on rock dusting. Tr. 34. It was unusual for Holskey to perform this type of

work, because the entire time he worked at the mine he worked with the miner.

Tr. 34.

Holskey worked two shifts. Tr. 35.

When he arrived for his third shift following his release back to work, Matt

Greer, the third shift foreman met Holskey at his basket and told him to go

home and come in the next day at 10 am. Tr. 35.

The following day, Holskey arrived

to the mine at 10 am, and went to Kris Maddox’s office, where Maddox, Dixon,

day shift mine foreman Wyatt Oates, and maybe Whitehouse were sitting. Tr.

35-36. No one said anything to Holskey, but instead slid a paper across the

desk to him. Tr. 36; GX-1. Holskey picked up the paper and read it, and asked

Maddox, “Is this because of the accident?” Tr. 36. Maddox replied, “No.” Tr.

36.

The letter stated in pertinent

part, “Effective 6/2/2017, your employment with Pennyrile Energy is terminated.

The basis for your termination is the established policy of the Probationary

Period Clause.” [15] Tr. 37; GX-1. Holskey

was not provided an explanation for the termination by anyone in the room. Tr.

37. Holskey said, “Okay,” and left to clean out his basket. Tr. 36. Holskey was

not provided any further reasons for the termination or any further information

about the probationary period. Tr. 38. Maddox testified that he told Holskey,

“that it wasn’t working out with us and it wasn’t working out with him, so I

was just going to let him go due to the probationary period.” Tr. 119-120.

Maddox was involved in both the

hiring and firing processes. Tr. 103. Maddox testified that no subordinates had

authority to assign people positions or pay. Tr. 103. When employees are hired,

they are placed on a 90-day trial or probationary period. [16]

Tr. 104. Maddox testified that the policy is explained to new employees during

orientation. Tr. 105. Maddox testified that he has terminated approximately

four or five other probationary employees. Tr. 114-115.

Maddox testified that Holskey’s

performance while he was at GMS was “very good.” Tr. 105. However, when he was

hired full time by Pennyrile, “his work performance laxed.” Tr. 105. Maddox

testified that Holskey began “getting a lot of miner cables,” and that he was

sometimes absent from his miner. Tr. 106. This information came from Holskey’s

direct supervisor, Matt Allen. Tr. 106. Maddox testified that Holskey was moved

to third shift around May 1 because Allen told Oates that “he was tired of

chasing Holskey around the unit to get him to his job.” Tr. 107. Additionally,

Maddox testified that Holskey had asked Maddox to be moved to third shift. Tr.

107. Maddox stated that he did not terminate Holskey’s employment at that time

because “you want to give somebody a chance to be put in another position so

they maybe excel better at that position.” Tr. 107.

Maddox testified that on Holskey’s

second night on the third shift he received complaints that Holskey “was acting

like the mine foreman.” Tr. 110. Maddox testified that he had a conversation

with Holskey to tell him that Boyd was the boss. [17]

Tr. 110. Maddox further testified that Holskey had a conversation with Maddox

stating that he wanted to run coal early, and that he would pre-shift the

belts. [18] Tr. 111. Maddox replied,

“No. I don’t want—I don’t want that. I want the unit set up ready to go at

7:00, and we can start loading. I don’t want early coal.” Tr. 111. Maddox said

this because he wants “to give the third shift the opportunity to make sure

everything is right.” [19] Tr. 112. Maddox

testified coal production usually starts at approximately 7:00 am. Tr. 111.

Third shift stays for approximately 30 minutes until dayshift gets there. Tr.

111-112.

Pennyrile sometimes issues written

warnings, and has an employee handbook. Tr. 125. They also sometimes reduce

oral warnings to writing. Tr. 126. Holskey was never written up for allegedly

cutting the miner cable, but Maddox testified that he was “talked to.” Tr. 126.

Similarly, he was not written up for being absent from the miner, but he was

“talked to.” Tr. 126. Similarly, he was not written up for “acting like a

boss,” but Maddox testified that he was “talked to.” Tr. 127. Maddox testified

that “everybody” was coming into his office complaining about Holskey. Tr. 129.

However, when asked to name any miners who complained about Holskey, Maddox

could only remember Boyd. Tr. 129. Maddox had no written documentation or

recollection of anyone complaining about not working well with Holskey, other

than Boyd. Tr. 128-130. There was also no documentation for any of the previous

problems of Holskey’s that Maddox described. Tr. 128. Maddox never told Holskey

that he would be discharged or terminated for any of his conduct. Tr. 130-131.

There are no written warnings or documentation of any problems in Holskey’s

personnel file. Tr. 131.

Maddox testified that he had

discussions with Oates on May 12 about Holskey, and that they were “probably

going to let Mr. Holskey go.” Tr. 114. His decision was also based on

discussions with Boyd, Allen, Whitehouse, and Greer. Tr. 125. The decision to

fire Holskey was “because of the cables, poor work performance, not working

well with the others.” Tr. 114. Maddox testified that he never heard about any

safety complaints from Holskey, and that the accident report did not factor

into his decision to fire Holskey. [20] Tr. 120. Maddox

testified that Holskey was not physically on the property on May 12, and that

when he terminates the employment of someone during the probationary period, “I

have to make sure that he’s on property.” Tr. 114. On cross examination, Maddox

admitted that nothing prevented him from firing Holskey during the three-week

period between May 12 and June 2. Tr. 121-122.

Maddox testified that he did not

want to fire Holskey on May 15 because Holskey had filled out an accident

report that day, but the accident report was not filled out until a few hours

into Maddox’s shift. Tr. 123. Maddox did not have a reason for not terminating

Holskey on May 16, when Holskey came into work. Tr. 124. Maddox testified that

he did not fire Holskey when he returned to work two more shifts starting on

May 30, because he “just tried to let him work to finish the week out.” Tr.

124. When it was pointed out to Maddox that those two shifts fell on a Tuesday

and Wednesday, and asked “how is that finishing the week out?” Maddox simply

responded, “I don’t know.” Tr. 124.

Contentions

The

Complainant, through the Secretary and private counsel, argue that Holskey has

met his burden of establishing that his complaints are non-frivolous, and as a

result he should be temporarily reinstated. The Complainant highlights his

protected activities of daily complaints concerning walking the belts on the

third shift, his accident report, complaints about the brakes on the ram car,

and his complaint that he did not know how to do the required Pitot readings.

Holskey’s termination followed shortly after these protected activities, and

the Complainant argues there was knowledge and animus towards the protected

activities.

Respondent

Pennyrile argues that Holskey was terminated because he cut the cables too

often, had poor work performance, and was not working well with others. The

Respondent argues that the 90-day probation policy permitted the operator to

fire Holskey for any reason.

Analysis

The

scope of this proceeding is narrow. Credibility determinations are not made;

conflicts in testimony are not resolved. It is well recognized by the Courts

that the Secretary’s burden is “relatively insubstantial”. For example, beyond

the scope of the hearing is testimony and/or documentary evidence that the

adverse action was justified by unprotected activity alone or was also

motivated by unprotected activity or other non-discriminatory grounds. For the

reasons set forth below, I find that the record presents a reasonable cause to

believe the instant Discrimination Complaint was not frivolously brought.

Holskey

Engaged in Protected Activity

The

record contains evidence of multiple complaints and actions over a short time

period that each constituted protected activities. First, after Holskey was

transferred to the third shift on May 1, 2017, he began complaining daily to

his face boss, Tommy Boyd, that the belts had not yet been examined and the

dust parameters were not performed correctly as required by the ventilation

plan. Tr. 20, 88. There is no question that such safety complaints constitute

protected activity under the Mine Act. Indeed, Section 105(c)(1) explicitly

states that a miner shall not be discriminated against because such miner “has

filed or made a complaint under or related to this Act, including a complaint

notifying the operator or the operator’s agent…of an alleged danger or safety

or health violation in a coal or other mine.” 30 USC §815(c)(1). Holskey’s

daily complaints concerned health and safety matters that he believed were a

violation of the Act.

Second,

after being crushed by the ram car on the night of May 15, Holskey reported the

accident and injury to Boyd. The Commission has held that the act of reporting

an injury is a protected activity under §105(c), and explained that such

reporting is integral to the proper functioning of the Act. See Swift,

Snyder, and Cunningham v. Consolidation Coal Co ., 16 FMSHRC 201, 205 (Feb.

14, 1994). [21] Third,

Holskey signed an accident report and submitted it to management. Tr. 27, 61.

Fourth,

after the accident, Holskey complained to Boyd that the brakes on the ram car

failed. Tr. 24. This safety complaint constituted a protected activity under

the Act.

Fifth,

on May 16, 2017, when Holskey was ordered to perform the dust parameters, he

told Boyd and Greer that he was not comfortable performing the Pitot readings

because he had never been trained on how to do them. Tr. 25-26, 40. This

statement constituted a health and safety complaint. It is unclear from the

record if Holskey ended up performing the Pitot readings, but if he refused to do

work that he considered unsafe, then it also constituted a protected work

refusal.

Each

of these safety complaints and accident reports constituted protected

activities under the Act. 30 U.S.C. §815(c)(1).

Holskey

Suffered an Adverse Employment Action

On

June 2, 2017, Holskey went to Maddox’s office, and met with Maddox, Dixon,

Oates, and perhaps Whitehouse. Tr. 35-36. Nothing was said to Holskey, but he

was handed a letter that terminated his employment. Tr. 36; GX-1. The basis for

the termination, as explained in the letter, was “the established policy of the

Probationary Period Clause.” GX-1. Holskey was not provided any other reason

for his termination. Tr. 38. The Act clearly states that a discharge is an

adverse employment action. 30 USC §815(c)(1).

A

Nexus Existed Between the Protected Activity and the Adverse Employment Action

As

discussed supra , to obtain a temporary reinstatement a miner must raise

a non-frivolous claim that he engaged in protected activity with a connection,

or nexus, to an adverse employment action. Having concluded that Holskey

engaged in protected activities and suffered an adverse employment action, the

examination now turns to whether those activities have a connection, or nexus,

to the subsequent adverse action. The Commission recognizes that direct proof

of discriminatory intent is often not available and that the nexus between

protected activity and the alleged discrimination must often be drawn by

inference from circumstantial evidence rather than from direct evidence.  Phelps

Dodge Corp. , 3 FMSHRC at 2510. The Commission has identified several

circumstantial indicia of discriminatory intent, including: (1) hostility or

animus toward the protected activity; (2) knowledge of the protected activity;

(3) coincidence in time between the protected activity and the adverse action;

and (4) disparate treatment of the Complainant.  See, e.g., CAM Mining,

LLC , 31 FMSHRC at 1089;  see also, Phelps Dodge Corp. , 3 FMSHRC

at 2510.

Knowledge

of the protected activity

According

to the Commission, “the Secretary need not prove that the operator has

knowledge of the Complainant's activity in a temporary reinstatement

proceeding, only that there is a non-frivolous issue as to knowledge.”  CAM

Mining, LLC , 31 FMSHRC at 1090,  citing Chicopee Coal  Co.,

21 FMSHRC at 719. In the instant matter, there is sufficient evidence of knowledge

by Pennyrile of the various protected activities to meet the evidentiary

threshold.

Holskey’s

daily complaints about the dust parameters, not walking the belts for the third

shift, the faulty brakes on the ram car, the accident, and his lack of training

on the Pitot readings were made to his face boss, Tommy Boyd. Tr. Tr. 20-21,

23-24, 25, 27. Furthermore, Holskey asked Maddox and Dixon for a blank accident

report to fill out. Tr. 26-27. Maddox testified that he was aware of the

accident report as soon as it had been filled out. Tr. 123. Therefore, the Respondent

had knowledge about each of Holskey’s protected activities.

Coincidence

in time between the protected activity and the adverse action

The

Commission has accepted substantial gaps between the last protected activity

and the adverse employment action. See e.g.  CAM Mining, LLC , 31

FMSHRC at 1090 (three weeks) and  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). The Commission has stated “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 34 at 47 (quoting  Hicks

v. Cobra Mining, Inc. , 13 FMSHRC 523, 531 (Apr. 1991).

In

the instant matter, extremely close proximity in time between the

protected activities and the adverse actions greatly favors a finding that a

nexus existed between the protected activities and the adverse actions. The

protected activities at issue here began on May 1, with Holskey’s daily

complaints to Boyd about the dust parameters and belt. Tr. 20. The other

protected activities surrounding the accident all occurred on May 15 and May

16. Holskey was terminated on June 2. Tr. 35-36. Therefore, the timespan between

the termination and the protected activities ranged from 17 to 32 days.

Hostility

or animus towards the protected activity

The

Commission has held, “[h]ostility towards protected activity-- sometimes

referred to as ‘animus'--is another circumstantial factor pointing to

discriminatory motivation. The more such animus is specifically directed

towards the alleged discriminatee's protected activity, the more probative

weight it carries.”  Secretary of Labor on behalf of Chacon v. Phelps

Dodge Corporation , 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted).

Although

a single instance, even circumstantial in nature would suffice, here there are

several indications of animus. Boyd repeatedly disregarded Holskey’s health and

safety complaints in a manner that bordered on contempt. In response to

Holskey’s daily complaints about the dust parameters and belt examinations,

Boyd told Holskey to simply do what they were instructed to do. Tr. 20-21.

Following Holskey’s accident with the ram car, where Holskey had his foot

crushed, his heel and back bruised, and a puncture hole in the back of his

neck, Boyd simply told Holskey to “sit down and take it easy for the rest of

the shift.” Tr. 23, 40. When Holskey complained to Boyd and Greer that he felt

uncomfortable doing the Pitot readings because he had not been trained, Greer

responded that Holskey should just do the best he can. Tr. 26. Furthermore, when

Holskey asked Maddox and Dixon for a blank accident report in order to report

his ram car accident, they initially refused to tell Holskey where they were

kept. Tr. 41. These responses to Holskey’s complaints and accident reports

evidence animus towards Holskey’s protected activities. [22]

Disparate

treatment

“Typical

forms of disparate treatment are encountered where employees guilty of the

same, or more serious, offenses than the alleged discriminatee escape the

disciplinary fate which befalls the latter.”  Secretary of Labor on

behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2512 (Nov. 1981).

The Commission has previously held that evidence of disparate treatment is not

necessary to prove a  prima facie  claim of discrimination when

the other indicia of discriminatory intent are present.  Id.  at

2510-2513.

Maddox

testified that approximately 30 employees that made safety complaints were not

fired, and that Holskey was not fired after his accident report in March. Tr.

115, 120-121. These statements, without more information in terms of the nature

of the other safety complaints, or other employees who made complaints that

were fired, is not sufficient to make a determination on disparate treatment.

The

Respondent’s Reliance on the Probation Policy is Misplaced

The

Respondent’s central argument was that because the signed probationary policy

states that they were permitted to terminate a new employee’s employment for

any or no reason within 90 days, the termination of Holskey was permissible. Pennyrile’s

Riveredge Mine is a non-union mine, and all employees are at-will. Tr. 39.

Maddox testified that all miners at Pennyrile, whether in the probationary

period or not, may be fired for any reason or no reason. Tr. 137. Respondent’s

counsel further argued that as a matter of employment law, probationary

employees have fewer rights than permanent employees. Tr. 192-196.

While

Pennyrile may be able to fire any at-will or probationary employee for any legal

reason, it cannot rely on a signed policy to terminate an employee for reasons

impermissible by law. A host of labor, employment, civil right, health and

safety, whistleblower, and other laws protect employees in the workplace, and

no policy or signed agreement can permit the company to violate those laws. The

probationary policy does not and cannot negate any provision of the Mine Act,

and the company may not force employees to sign away any rights under the Mine

Act as a condition of employment. Therefore, any reading of the probation

policy that includes protected activities is impermissible.

The

Respondent’s reliance on the probationary policy is misplaced. The Respondent

may be permitted to terminate the employment of employees for any legal reason,

but it cannot use the policy to terminate employment for illegal reasons.

Therefore, the argument by Maddox and by Respondent’s counsel that Holskey was

fired because of the probationary policy does not negate the necessity of an

inquiry as to whether Holskey has made a non-frivolous complaint of

discrimination under §105(c) of the Act.

Conclusion

In

concluding that Holskey’s complaint herein was not frivolously brought, I find

that there is reason to believe he engaged in protected activities, and that

there was a nexus between the protected activities and his termination. Miner Jonathan Holskey is entitled to Temporary

Reinstatement under the provisions of Section 105(c) of the Act.

ORDER

It is

hereby ORDERED that Jonathan Holskey be immediately TEMPORARILY

REINSTATED to his former job with Pennyrile Energy at the Riveredge Mine at

his former rate of pay, overtime, and all benefits he was receiving at the time

of his termination.

This Order SHALL

remain in effect until such time as there is a final determination in this

matter by hearing and decision, approval of settlement, or other order of this

court or the Commission.

I retain

jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. §

2700.45(e) (4). The Secretary SHALL provide a report on the status of

the underlying discrimination complaint as soon as possible . Counsel for

the Secretary SHALL also immediately notify my office of any

settlement or of any determination that Respondents did not violate Section

105(c) of the Act.

/s/

Kenneth R. Andrews

Kenneth

R. Andrews

Administrative

Law Judge

Distribution (Via E-mail and Certified Mail):

Thomas Motzny, Esq., Office of the Solicitor, U.S.

Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219 [email protected]

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

Mark E. Heath, Esq. & Denise Smith, Esq., Counsel for

Pennyrile Energy, LLC, Spilman, Thomas & Battle, PLLC, P.O. Box 273, 300

Kanawha Boulevard, East, Charleston, WV 25329 [email protected]

[1] A pagination error in the original Decision has

been corrected.

[2] A Substantial evidence @ means A such

relevant evidence as a reliable mind might accept as adequate to support [the

judge = s] conclusion. @ Rochester &

Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated

Edison Co. V. NLRB , 305 U.S. 197, 229 (1938)).

[3] The Pennyrile Mine is nonunion. Tr. 39.

[4] Holskey misstated the date early in the hearing as

June. Tr. 16-17.

[5] Kris Maddox testified at hearing on behalf of the

Respondent. Maddox worked as the superintendent of Riveredge Mine until a week

before hearing. Tr. 102-103. At the time of hearing, he was general manager of

the mine. Tr. 102-103. As superintendent, Maddox’s duties included daily

operations of the mine, mine planning, and workforce. Tr. 103.

[6] According to Holskey, “early coal” usually started

at 5 am, but it could start a few hours earlier or later. Tr. 86-87.

[7] Maddox described Holskey’s job as a third shift

utility job, with responsibilities to help get the unit ready for the day shift

by scooping, rock dusting, and helping move power. Tr. 108. Maddox testified

that he never told Holskey that he would be the supervisor on that section, and

that no one else would have the authority to assign him to be the lead man. Tr.

109. Similarly, no one besides Maddox could establish Holskey’s rate of pay.

Tr. 110. The difference in pay between a miner operator and utility man is

$1.50 per hour, and miners who have papers receive an extra 25 cents per hour.

Tr. 110.

[8] Holskey testified that at the mine, the terms “face

boss” and “lead man” were used interchangeably. Tr. 82.

[9] The “shack” is where the power box is located, and

it serves as a gathering place. Tr. 39. It is a physical structure, with a

bench where people will sit. Tr. 39.

[10] The height in the mine is five feet. Tr. 22. The

ram car is approximately 30 feet long, and has a bed like a pickup truck, which

pivots in the middle, with the batteries that power the car on the other end of

the vehicle. Tr. 22. The operator lays down in the compartment, with the

controls to each side of him. Tr. 22. There is a chain on the car that goes

from tire to tire, which smooths out the road as one is traveling back and

forth. Tr. 24.

[11] Nicky Stevens testified

at hearing on behalf of the Respondent. Stevens worked in maintenance in the

third shift at Riveredge Mine. Tr. 147. He has worked in the mines for

approximately 40 years, and worked for Pennyrile for approximately two years.

Tr. 157. He was working at the Sebree Mine when Ricky Thorpe got crushed to

death. Tr. 157.

On May 14, the second shift called out that “the brakes were

spongy” on the green ram car, so Chris Pettus and Stevens worked on it. Tr.

148-149. They worked on the car for approximately two to three hours. Tr. 151.

Stevens testified that he did not witness the incident with Holskey and the ram

car. Tr. 152.

Stevens tested all the breaking methods in the blue ram car

and they worked. Tr. 154. Stevens testified that there was no way that Holskey

could have been driving the green car. Tr. 155-156. Stevens had told others at the

mine that he did not know how Holskey could have been run over by a ram car,

and doubted the facts of the accident. Tr. 158. Stevens testified that he did

not like to be around Holskey because he complains, and he could not remember

if he told an MSHA representative that he did not like Holskey personally. Tr.

167.

Stevens reported to Danny Young and Greg Bowser that he did

not find anything wrong with the car Holskey was driving. Tr. 170-171.

Greg Badertscher also testified at hearing on behalf of Respondent.

Badertscher was the maintenance chief at the Riveredge Mine responsible for all

underground maintenance, repair, and upkeep of the cars and equipment. Tr.

172-173. Badertscher further cast doubt on Holskey’s account of the accident.

Tr. 172-183.

[12] The dust parameters were required under the mine’s

ventilation plan. Tr. 26. The Pitot reading is necessary because there must be

a certain amount of air going through the scrubber for the dust parameter in

order to mine coal. Tr. 40. The scrubber is the exhausting system for the

continuous miner that gathers dust out of the atmosphere. Tr. 40.

[13] On that day’s day shift

MSHA had two dust samplers coming in to run dust. Tr. 26.

[14] During this time period, Holskey wore the boot

intermittently because the doctor said that Holskey needed to walk on his foot,

and said he should wear the boot on an as-needed basis. Tr. 65.

[15] Maddox told Dixon that

Holskey was being terminated because he “could not perform his job duties, cuts

a bunch of cables, and can’t get along with others,” and she typed the

termination letter. Tr. 132. Nothing in the termination letter mentions these

reasons. Tr. 133.

[16] Maddox testified that

during the probationary period, an employee can be fired for any reason or no

reason at all. Tr. 137. Maddox also testified that after the probationary

period an employee can be fired for any reason or no reason at all. Tr. 137.

[17] Holskey denied that such a conversation took place.

Tr. 90.

[18] Holskey denied that such a conversation took place.

Tr. 89-90.

[19] Holskey denied that such a conversation took place.

Tr. 89-90.

[20] Maddox testified that

Pennyrile’s policy on reporting accidents at the mine are to report them

immediately to the direct supervisor. Tr. 115. He testified that approximately

30 accidents reported by employees, and that none of these employees were

fired. Tr. 115, 121. He further pointed out that Holskey was not fired after

filling out his accident report in March. Tr. 120-121.

[21] In Swift , the Commission stated:

We affirm the judge's conclusion that a miner's reporting

of injuries to an operator constitutes protected activity. Section 2(e) of the

Act provides that “operators of ... mines with the assistance of the miners

have the primary responsibility to prevent the existence of [unsafe and

unhealthful] conditions and practices in such mines.” 30 U.S.C. § 801(e). In

order to carry out this responsibility, mine operators need to know about

unsafe conditions that cause accidents and injuries. Further, accurate

information must be gathered by operators in order to comply with the

Secretary's regulations at 30 C.F.R. Part 50 (1993), requiring operators to

file with MSHA reports of all accidents and injuries that occur at mines.

Operators can be fully informed about accidents and injuries only with the

cooperation of miners. Therefore, taking adverse actions against miners for

their reporting of injuries would restrict the free flow of information and

compromise accurate reporting and mine safety.

We reject the operators' contention that the act of

reporting a personal injury would qualify as protected activity only if the

report contains a safety complaint; this approach takes too narrow a view of

such reports. The legislative history of the Act makes clear the intent of

Congress that protected rights are to be construed expansively.  See  S.

Rep. No. 181, 95th Cong., 1st Sess. 36 (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 624 (1978) (“ Legis. Hist. ”).

The right to report injuries, however, carries with it a

corresponding responsibility that miners report injuries and accidents. The

legislative history of the Act shows that Congress provided protection to

miners against discrimination in order to encourage their active role in

enhancing mine safety:

If our national mine safety and health program is to be

truly effective, miners will have to play an active part in the enforcement of

the Act.... [I]f 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.

Legis. Hist.  at

623.

Swift,

Snyder, and Cunningham v. Consolidation Coal Co ., 16 FMSHRC 201, 205 (Feb. 14, 1994).

[22] The Respondent’s presentation of Nicky Stevens and

Greg Badertscher further illustrate animus towards Holskey’s protected activity

of making an accident report. These witnesses had no relevant information to

offer concerning any argument or defense by Respondent, but instead simply

insinuated that Holskey’s accident report was untrue. Respondent’s defense that

Holskey’s termination was wholly unrelated to the accident or accident report

was belied by the presentation of these witnesses.