Secretary of Labor obo William R. Whitmore v. Yager Materials Corp.

Plain-English summary

William Whitmore, Yager Materials' maintenance manager, alleged that he reported training problems, COVID-19 protocol concerns, a haul-truck near miss, and equipment safety defects. Yager suspended and fired him soon afterward, stating that he made inappropriate comments about extending a new employee's probationary period. Judge William Moran explained that temporary reinstatement requires only a nonfrivolous discrimination claim and does not resolve the competing explanations for discharge. He found sufficient evidence of protected activity, management knowledge, adverse action, and close timing. Yager was ordered to immediately return Whitmore to his former or a comparable position with the same pay and benefits while the merits case continued.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)-(3); 29 C.F.R. § 2700.45
• Outcome: William Whitmore was ordered immediately temporarily reinstated pending a final discrimination decision.
• Key point: Multiple documented safety complaints followed closely by suspension and discharge cleared the low nonfrivolous-claim threshold for interim reinstatement.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE
OF ADMINISTRATIVE LAW JUDGES

1331
PENNSYLVANIA  AVENUE N. W., SUITE 520N

WASHINGTON, D.C.
20004-1710

Telephone No.: 202-434-9933

Telecopier No.:
202-434-9949

August
4, 2020

SECRETARY
OF LABOR,           U.S. DEPARTMENT OF LABOR on behalf of WILLIAM R.
WHITMORE,                       

Complainant

v.

YAGER MATERIALS CORP.,

Respondent

TEMPORARY
REINSTATEMENT

Docket
No. KENT 2020-0116-DM

Mine:
Riverside Stone Mine

Mine
ID: 15-00081

Docket
No. KENT 2020-0117-DM

Mine:
Riverside Stone Mine

Mine
ID: 15-18549

DECISION AND ORDER
GRANTING TEMPORARY REINSTATEMENT

Appearances:
Thomas J. Motzny, Esq., Nashville, Tennessee, for the Secretary of Labor

Tony Oppegard, Esq.,
Lexington, Kentucky, and Wes Addington, Esq., Whitesburg, Kentucky, for the
Complainant

Arthur M.
Wolfson, Esq., Fisher & Phillips, LLP, for the Respondent

Before: Judge William B. Moran

This matter is before the Court on an
application for temporary reinstatement (“Application”) filed by the Secretary
of Labor on behalf of Complainant William R. Whitmore pursuant to Section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(c)(2) (“the Act”). The application, which was filed on July 9, 2020, seeks
reinstatement of the Complainant “to the position he held immediately prior to
the discharge, or to a similar position, at the same rate of pay, same shift
assignment, and with the same or equivalent duties.”  Application at 3.  A
video hearing on the Application was held on July 29, 2020. For the reasons
that follow, the application is granted. Respondent is ORDERED to
immediately reinstate the Complainant, William R. Whitmore, to the position he
held immediately prior to his discharge, or to a similar position, at the same
rate of pay, and the same shift assignment, and with the same or equivalent
duties.

SUMMARY OF THE EVIDENCE

As
set forth below in greater detail, on the basis of credible testimony presented
during the July 29, 2020 video hearing, the Court finds that the Complainant
established several instances of protected activity by voicing safety
complaints, that the Respondent had knowledge of those safety complaints, and
that the Complainant’s suspension and termination occurred soon after those
safety complaints were made. The Respondent’s defense did nothing to dispel the
credibility of the Complainant’s safety complaints, but rather spoke to an
alternative basis for the Complainant’s firing. That defense did not, in any
way, tend to show that Mr. Whitmore’s claim was frivolous. Accordingly, the
Court finds that the Mr. Whitmore’s Complaint was not frivolously brought and on
that basis that the Complainant is to be immediately reinstated to his former
position.

HEARING TESTIMONY AND FINDINGS OF FACT [1]

Mr.
William Whitmore, the Complainant, testified first. Whitmore began his
employment with Respondent, Yager Materials Corp, on September 30, 2019. His
job title was “maintenance manager.” [2]
Tr. 19-20. The name of the mine for both its underground and surface operations
is Riverside Stone. Tr. 60.  He described his job duties as “[s]ite-wide
maintenance management for the underground mine and the surface mine. … [which
entailed] [a]ll of the plant equipment that processes the aggregate and also
all of the mobile equipment that produces the aggregate.” [3] Tr. 20. It
is noted that, among his work experience, Whitmore is an MSHA certified
instructor and has done a lot of miner safety training in the course of his 36
years of mining experience. Tr. 62. Whitmore was terminated (fired) from his
job at Yager on April 29, 2020. Id.

Whitmore testified that, during January
2020, while he was on medical leave, he anonymously reported safety incidents, which
occurred prior to that leave, to MSHA through an online method provided by MSHA
to report such matters. Tr. 21-24. The incidents he reported through the MSHA online
method involved inadequate training and improper documentation of such
training, relating to mobile equipment operators. Id. Upon his return to
work, though no one accused Whitmore as the source for the anonymous complaint,
Bryan Ory, the site’s general manager, who was Whitmore’s immediate supervisor
at Yager, acted differently toward him. Tr. 21, 25. Whitmore presented credible
examples to support his claim that Ory treated him differently upon his return
to work following his medical leave. E.g . Tr. 28.

During
April 2020, Whitmore raised safety issues with Yager. The first was his concern
that a contractor working on-site was not complying with the mine’s COVID-19
restrictions and protocols. Tr. 28. Those protocols were put in place by
Yager’s parent company, Carmeuse. Id. He emailed his concern about this
to Jenn Carnley, Respondent’s office manager, and a human resources employee,
described as a “HR generalist.” Tr. 29. Several other Yager personnel were
included in Whitmore’s email to Carnley, including Bryan Ory. Ex. C 1 and Tr.

30. Following that, Whitmore had a face-to-face discussion with Ory about this
    issue. Tr. 31.

A separate instance occurred on April
17, 2020. This involved the Complainant’s assertion that there was a near miss
accident while he was driving in the company’s pickup truck as he came upon a
haul truck using the same road. According to Whitmore’s account which, for
purposes of this hearing , the Court finds to have been credible, a 70 to 75
ton haul truck was speeding on the road and upon hitting a dip in the road,
large pieces of aggregate (limestone ore) fell off the haul truck, narrowly
missing hitting Whitmore’s vehicle. Tr. 32. Following that event, Whitmore
drove to Ory’s office and related the event to him, including his suggestions
to remedy the safety issue he perceived. Tr. 33. Whitmore contended that Ory
acted disinterested about the matter. Whitmore also emailed others within the
Respondent’s chain of authority about this event. Tr. 34-35 and Ex. C 2, C 3, C
4, and C 5.

Whitmore then identified another safety
concern he raised with Yager. This also occurred in April 2020. Tr. 41, Ex. C

6. This matter involved maintenance concerns and his recommendation that equipment
   with safety issues should be taken out of service until repairs were made. In
   conjunction with this issue, Whitmore created a spreadsheet identifying safety deficiencies
   with particular pieces of equipment. This spreadsheet included some handwritten
   additional safety concerns involving inadequate steering control on loaded
   trucks. Ex C 6, with Whitmore’s signature on the exhibit and dated April 21,
7. That document was created entirely by Mr. Whitmore, including the handwritten
   notes on it. Tr. 76-77. Whitmore testified, again the Court finding his
   testimony to have been credible, in the context of this temporary
   reemployment proceeding , that he reported this to Ory, placing it on his
   desk. Tr. 41-42.  The report Whitmore created was not an isolated instance, as
   he presented similar such reports “every couple of weeks.” Tr. 42. The next day
   Whitmore found the spreadsheet returned to his desk, with no comment from Ory. Tr.
8. Whitmore informed the Court that reviewing the preshift notes and
   deficiencies were part of his job. Tr. 44. Whitmore provided credible detail
   about the nature of the safety issues he identified in that spreadsheet.  Tr.
   45-50.

Following the safety concerns expressed
by Whitmore, as described above, on April 23 rd , that is to say, two
days after the spreadsheet was presented to Ory, Whitmore was instructed by
Lisa Wellman to be in Ory’s office for a telephone conference that day. Tr. 51.
During that conference Wellman raised questions about Whitmore’s interaction
with a new employee, who was identified for purposes of this hearing and with
the agreement of all parties only as “Mike.” Whitmore was Mike’s direct
supervisor. Tr. 77. Focusing upon the only issue of potential pertinence to
this proceeding was the Respondent’s interest as to whether Whitmore had spoken
to Mike on the issue of whether the new employee’s probationary period could be
extended. Whitmore denied ever discussing that subject with Mike. [4] Tr. 55. The
upshot of the telephone conversation was that Whitmore was informed he was
suspended for three days, “[p]ending an investigation of conversations [that
he, Whitmore] had with Mike.” Id. The suspension began on April 23 rd .
Tr. 56. Subsequently, Whitmore was told to appear at Yager’s Owensboro
corporate office on April 29 th . Several Yager management persons
were at the meeting, including Ory, who was present, via computer, from
Battletown. Tr. 57-58. Lisa Wellman directed the meeting, and informed the
Complainant that he was being terminated. Tr.58. According to Whitmore, he
could not get an answer as to reason for his firing but eventually Wellman, as
Whitmore related her response to him, informed him that “management cannot say to
an employee “what [he Whitmore allegedly] said [to Mike] and they determined
that was unacceptable and that was grounds for my dismissal.” Tr. 58-59,
reflecting Whitmore’s recounting of Wellman’s reason for his firing. Following
that, he was on that day given his termination letter, a severance document and
informed that he had 21 days to respond to it. Tr. 59. Whitmore did not sign
the agreement presented to him by Yager. Id.

Both
at the time of the testimony under cross-examination of Mr. Whitmore and upon
review of the transcript of that cross-examination, (Tr. 78- 97), and recalling
that the Respondent has advanced in its defense the single claim that Whitmore
made inappropriate remarks about the probationary period for the employee
identified as “Mike,” the Court has concluded that only the following has
relevance to this proceeding seeking temporary reinstatement. Whitmore was
questioned by Respondent about his duties as maintenance manager and in
particular about Exhibit C 6 which, it will be recalled, involved alleged safety
issues Whitmore recorded on that exhibit. Though that exhibit listed “up” for
each equipment issue, the term being used to declare that the equipment was
still being operated, Whitmore stated that he lacked authority to tag out
equipment, making it unavailable for service. The Court finds that the
Respondent’s line of questioning regarding the equipment Whitmore listed with
deficiencies did not advance the Respondent’s attempts to diminish the
information contained in that exhibit. Whitmore added that while he tagged out
a lot of equipment, beyond the equipment listed in Ex. C 6, “in most

cases the tags were disregarded and the equipment was run anyway.” Tr. 84. It
is noted that the Respondent presented no evidence in its case on rebuttal to
challenge Whitmore’s claim on that score.

Challenged by
Whitmore’s private counsel as to the Respondent’s line of questioning about Ex.
C 6 and Respondent’s Counsel’s admission that such questions were directed to Whitmore’s
veracity about the information in that exhibit, Whitmore’s private counsel
noted that credibility findings are not within the ambit of a temporary
reinstatement proceeding. Respondent’s Counsel differed on that score,
contending that the views of two Commissioner’s in Shaffer v. Marion County ,
40 FMSHRC 39, (Feb. 2018) (“ Shaffer ”) supported the line of questioning. 
The Court ruled by noting again that the Respondent’s defense had been limited
to the claim that Whitmore had made inappropriate remarks to Mike in connection
with that employees probationary period. The Court then noted its view that the
expressions s of any two Commissioners has no precedential value. Tr. 87-88.  More
will be said about Shaffer in the discussion regarding conclusions of
law, infra . The Court also agreed that credibility determinations must
await the full discrimination action.

However, the Court
permitted Respondent’s attorney some leeway to continue that line of
questioning on the basis that “the rule itself [addressing temporary
reinstatement proceedings, at 29 C.F.R. § 2700.45(d)] says that 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. Tr. 88. Thus given limited leeway
to proceed, the Court finds that in the few questions that followed, the
Respondent made no headway on that score to advance the contention that
Whitmore’s complaint was frivolous. [5]
The Court elaborated on this subject with the following remark:

The issue with reference to C6
might be the subject of a full hearing on discrimination, but really, for
purposes of this proceeding it is just whether the respondent was aware that
Mr. Whitmore created this document. And his testimony was, if I have it
correct, that he created this document, put that and others on the desk of Mr.
Ory, and so that's the limited focus. Not whether, in fact, a backup alarm,
reverse lights were fixed and not whether the lights that were out were
corrected. The same is true for the question [Respomdent’s Attorney] just asked
about documentation and training. The subject for this hearing [in the context
of this line of questioning is] did the complainant raise issues with Yager
about training and about documentation of the training. Not into the
particulars of that. That is further down the road. So that's my ruling on that
and so you can proceed on to something else.

Tr. 92.

When Respondent’s Counsel questioned
Whitmore about whether, in Ex. C 1, he specifically raised the subject of social
distancing in connection with the COVID 19 pandemic, in that email, the
Court noted that while those words were not expressly in the email, it
was clearly the import of the message. When next asked if he received a
response to that email, over an objection to the question by the Secretary’s
attorney, the Court allowed the question but observed that:

for purposes of the temporary reinstatement
application, A, the respondent has not alleged that had anything to do with
Whitmore's termination. Another point is any employee, Mr. Whitmore doesn't
have to be making a safety complaint or safety issue about those within his
particular ambit, in other words those people that work directly under him or
not. If I'm electrician at a mine, which is a shocking suggestion, but if I
were and I make a complaint about someone who has a totally different job doing
something, I can still make that complaint to management or I can make an
anonymous call. It doesn't have to be something that's in my circle of
authority. So, again, I come back to the point the issue in C1 is that Mr.
Whitmore transmitted this message to Jenn Carnley and that's the extent of it.

Continuing, the Court noted that:

[h]ow they respond to [my
electrician making a safety complaint example] gets far afield to what [the
Court has] to determine in the narrow scope of this proceeding.” [As applied
here], “[d]id Mr. Whitmore send this email. Doesn't seem to be any challenge
about that. So he communicated this concern and I think beyond that, when we
get into issues about well, what did the respondent do about that, that, in my
view, gets into the question of a full discrimination proceeding and for determination
perhaps in such a proceeding if that occurs. That's my ruling on that. It is
far afield.

Tr. 95-96

With Respondent’s Counsel expressing that he was unsure
where the Court’s ruling pointed, the Court then added,

[i]t leaves you, I'm not interested
in this hearing, it might be very interesting in a full discrimination
proceeding, but I'm not interested in this proceeding whether the company did
something constructive in reaction to that because that wouldn't tell me, that
wouldn't instruct me that the complaint was frivolously brought and I would also
note that this was not the only issue that was raised by Mr. Whitmore. There
are numerous subjects that he raised during his direct testimony. It is
certainly not limited to this. For my purposes, … I view this as whether the complainant
issued what is effectively a complaint and a concern, safety and health
concern, and [ ] there's no challenge to that. He did communicate that. 

Tr.
96

The Secretary then
rested its case and the rebuttal testimony from the Respondent proceeded. Tr.

98. Ms. Lisa Wellman was then called by the Respondent. She is the HR manager
    for Carmeuse. She reports to Melissa Croll and for any other operations within
    Carmeuse she reports up through Victoria Neff.  Ms. Neff is the director of HR
    for the field operations for Carmeuse but she does not have responsibilities
    over Yager. Tr. 102-103. For Yager related matters, Wellman reports to Ms.
    Croll. Tr.103. As to this Whitmore proceeding, Wellman informed that she
    “conducted the investigation and ultimately made the recommendation to Melissa
    Croll for [Whitmore’s] termination. Tr. 104, 113-114. Again, Respondent’s
    position is that it fired Whitmore solely for his “inappropriate comments
    regarding extending a probationary period for an employee with [a] medical
    condition.” Id. Wellman then related the alleged circumstances regarded
    the claimed inappropriate comments, which comments, as have been noted, Mr.
    Whitmore has denied making them.  There is no purpose is an extended retelling
    of Ms. Wellman’s testimony on this score. In sum, she conducted her
    investigation, concluded that Mr. Whitmore’s version was not true and on that
    basis he was fired. [6]
    Wellman’s recommendation to terminate Whitmore was made to Ms. Croll, who
    agreed with that outcome. Tr. 115.

At the conclusion of
Ms. Wellman’s testimony the Court took the opportunity to remark that

for the purposes of the decision I
have to make that I'm able to and I must compartmentalize as follows: In box A,
if you will, I have Mr. Whitmore's multitude of safety and health issues which
he raised. I'm not speaking to Miss Wellman's knowledge of that. I have box A,
I have all of that testimony. And then in box B I have, if you will, the Mike
issue. It seems to me that I don't have to resolve the Mike issue in the
context of a temporary reinstatement application. If I accept for the moment
that Miss Wellman knew nothing about any of this, I'm not suggesting you did,
that nobody at Yager knew anything about any of these things, it doesn't matter
for purposes of the temporary application proceeding. What I have to find are
the bare elements, which I've reviewed already and so that would not make up,
even accepted as absolutely true, that transforms Mr. Whitmore's application
into a frivolous one. That's my view of it.            Tr. 117.

Respondent then called Melissa Croll. Ms.
Croll is based in Pittsburgh, PA and is employed by Carmeuse Americas. Tr. 126.
She is the vice-president of human resource for Carmeuse Americas. Id. As
pertinent to this proceeding, Ms. Croll stated that Lisa Wellman reports to her
only for Yager Materials activities. Tr. 127. Croll determines matters of
employee terminations and she approved Whitmore’s firing. Tr. 128. She stated
that the termination was merited because Whitmore’s remarks “that he made were
inappropriate and illegal and was worthy of termination.” Tr. 128. Thus, she
accepted Wellman’s recommendation. Id. As with Wellman’s testimony,
Croll maintained that she knew nothing about Whitmore’s various safety related
complaints. Tr. 129.

Commission Case Law on Applications for
Temporary Reinstatement

The Commission has a venerable history regarding
the standard to be applied in applications for temporary reinstatement and by
virtue of that, the applicable law to be applied in applications for temporary
reinstatement has been well established. A representative example expressing the
law to be applied is set forth here:

Section 105(c) of the Act, 30
U.S.C. § 815(c), prohibits discrimination against miners for exercising any
right afforded by the Act. Under Section 105(c)(2) of the Act, “if the
Secretary finds that [a discrimination] complaint was not frivolously brought,
the Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on the
complaint.” 30 U.S.C. § 815(c)(2). The Commission has stated that the scope of
a temporary reinstatement hearing is therefore “narrow, being limited to a
determination by the judge as to whether a miner’s discrimination complaint is
frivolously brought.” 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 (11th
Cir. 1990). This standard reflects a Congressional intent that “employers
should bear a proportionately greater burden of the risk of an erroneous
decision *637 in a temporary reinstatement proceeding.” Jim Walter
Res., Inc. v. FMSHRC , 920 F.2d 738, 748 (11th Cir. 1990).

The Commission has explained that
“it is not the judge’s duty … to resolve [[[any] conflict in testimony at this
preliminary stage of proceedings.” Sec’y of Labor on behalf of Albu v.
Chicopee Coal Co. , 21 FMSHRC 717, 719 (July 1999). See also ,
Sec’y of Labor on behalf of Shaffer v. Marion County Coal Co., No. WEVA
2018-117-D, 40 FMSHRC ___, slip op. at 4, 9 (Feb. 8, 2018). Nevertheless, the
Judge “need not accept testimony if it is demonstrably false, patently
incredible, or obviously erroneous.” Shaffer , slip op. at 9 (Althen,
Chairman, and Young, Comm’r). [“ Shaffer ”] [40 FMSHRC 39, 47].

The issues raised in a temporary
reinstatement hearing are “conceptually different from those implicated by the
underlying merits” of the miner’s discrimination claim. JWR , 920 F.2d at

744. The temporary reinstatement proceeding addresses “whether the evidence
     mustered by the miner[] to date establishe[s] that [his] complaint[] [is]
     nonfrivolous, not whether there is sufficient evidence of discrimination to
     justify permanent reinstatement.” Id.

While an applicant for temporary
reinstatement need not prove a prima facie case of discrimination, the elements
of a discrimination claim are relevant to the analysis of whether the evidence
presented satisfies the non-frivolous test. Sec’y of Labor on behalf of
Williamson v. CAM Mining, LLC , 31 FMSHRC 1085, 1088 (Oct. 2009). In order
to establish a prima facie case of discrimination under the Act, a complaining
miner must present evidence sufficient to support a conclusion that he engaged
in protected activity, that he suffered an adverse employment action, and that
the adverse action was motivated at least in part by that activity. Turner
v. Nat’l Cement Co. of Cal. , 33 FMSHRC 1059, 1064 (May 2011); Sec’y of
Labor on behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC 803,
817-18 (Apr. 1981); Sec’y of Labor on behalf of Pasula v. Consolidation Coal
Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds , 663
F.2d 1211 (3d Cir. 1981). The Commission has acknowledged that evidence of
motivation is frequently indirect, and has identified several “circumstantial
indicia of discriminatory intent: (i) hostility or animus toward the protected
activity; (ii) knowledge of the protected activity, and (iii) coincidence in
time between the protected activity and adverse action.” Williamson , 31
FMSHRC at 1089; Sec’y 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). The question for the judge at this stage is whether there is
a non-frivolous question as to the elements of the case. Williamson , 31
FMSHRC at 1091.

D&H Mining ,
40 FMSHRC 635, 636-637 (Mar. 19, 2018) (ALJ Miller) (“D&H”).

Recently, however, the Court has noted that
two Commissioners, Commissioner William Althen and Commissioner Michael Young,
have expressed new perspectives about the standard required in applications for
temporary reinstatement. This occurred in Sec’y of Labor on behalf of
Shaffer v. Marion County Coal Co ., 40 FMSHRC 39 (Feb. 2018) (“ Shaffer ”),
wherein they introduced the view that the “preponderance of the evidence” plays
a role in temporary reinstatements proceedings. This is new. As set forth
below, in an examination by this Court of all prior Commission level decisions,
it has not been able to find and therefore has not located any prior decision
introducing that test into the temporary reinstatement analysis. In fact, as
set forth below, a Commission majority opinion, which included Commissioner Young,
disavowed consideration of engaging a preponderance test in such matters. See ,
Williamson v. CAM Mining , 31
FMSHRC 1085 (Oct. 2009), infra.

Here is what Commissioners Young and Althen had to
say about the matter in Shaffer :

There
is no presumptive right to temporary reinstatement. Rather, the complainant’s
entitlement must be established by substantial evidence, as in any other
proceeding. Only the standard that the evidence must meet is diminished. Thus, in
a discrimination case , the complainant bears the burden of proving
discrimination by a preponderance of the evidence . 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). In contrast, at
this early stage of the proceedings, the Secretary has the burden of proving
by a preponderance of the evidence only that the claim is not frivolous.
Sec’y of Labor on behalf of Pappus , 38 FMSHRC 137, 154 (Feb. 2016),
rev’d on other grounds, CalPortland Co. v. FMSHRC , 839 F.3d 1153 (D.C.
Cir. 2016).

Preponderance
of the evidence means the greater weight of the evidence, such that the
Secretary has demonstrated that it is more probable than not that the claim is
not frivolous. The burden of proof in a temporary reinstatement case,
therefore, contains two legal standards : “preponderance of the evidence”
and “““non-frivolous.”

As
with all disputed claims, the outcome depends upon the evidence presented. If
the operator requests a hearing, the hearing is a full judicial proceeding. In Secretary
of Labor on behalf of Gray v. North Fork Coal Corp ., 33 FMSHRC 27 (Jan.
2011), the Commission quoted with approval the decision of the Eleventh Circuit
regarding the nature of a temporary reinstatement hearing:

At
[the temporary reinstatement hearing], the employer has the opportunity to test
the credibility of any witnesses supporting the miner’s complaint through
cross-examination and may present his own testimony and documentary evidence
contesting the temporary reinstatement…. [T]he statute grants [the employer]
the right to seek an adjudication from a neutral tribunal, prior to a
deprivation of its property interest, with all the regalia of a full evidentiary
hearing at its disposal.

40
FMSHRC 39 at 42 (quoting Jim Walter Res ., 920 F.2d at 747-748) (emphasis
added).

We
glean two points. First, a temporary reinstatement hearing or proceeding is a
full evidentiary process, albeit a greatly expedited one. The opportunity for
such a hearing satisfies the operator’s due process rights.

Second,
the opportunity to test credibility identified by the Commission in Gray
would be meaningless without a genuine exposition of the evidence presented. If
versions of events diverge without dispositive proof of either, the outcome at
the reinstatement stage may not rest upon a choice between the versions, and
the miner must be reinstated. However, a Judge need not accept testimony if it
is demonstrably false, patently incredible, or obviously erroneous, because
such evidence fails to qualify as “substantial evidence” upon which a
reasonable person might rely.

Thus,
all evidence relating to the adverse employment action is relevant in a
temporary reinstatement proceeding -- even that which seems directed to an
affirmative defense or rebuttal of the miner’s claim. While we agree that the
Judge should not make credibility and value determinations of the operator’s
rebuttal or affirmative defense, if the totality of the evidence or testimony
admits of only one conclusion, there is no conflict to resolve. It is the
Judge’s duty to determine whether the claim is frivolous, in light of
undisputed or conclusively-established facts and inescapable inferences.

Id.
at 46-47 (emphasis added). [7]                                                                                                                                                                                                                                                                                                                                                                                                             

Of course, the opinions of any two
Commissioners, as with the views of Commissioners Althen and Young recounted
here, when unaccompanied by other Commission majority decisions subscribing
to such views , is of no precedential value. Commissioner Young has observed
this in The American Coal Co. , 35 FMSHRC 380 (Feb. 2013) (“ American Coal ”), expressing
that:

the Secretary was
unable to persuade a majority of the Commission of the propriety of that
definition then, at least in Phelps Dodge flaming combustion was the
actual hazard occasioned by a stubborn grease fire ignited by cutting a piece
of mining equipment with a torch. Id. at 647. Two Commissioners rejected
then the imposition of a relevant broader definition, in part based on a
reasonable concern about unintended consequences.
See id. at 663 (Duffy and Young, concurring) (“Far-ranging conclusions,
not necessary to the disposition of issues presented to the reviewing court in
one case, may, ironically, end up constricting the court’s discretion in
subsequent cases where the facts may be significantly different.

Id. at 390 (Commissioner Young, concurring in part and dissenting in
part) (emphasis added). [8]

The Court’s Research of Commission Case
Law on Applications for Temporary Reinstatement and the Term “preponderance of
evidence.”

The Court’s research revealed fifteen (15) cases where the
phrase “ preponderance of evidence ” was expressed, but only
in Shaffer has the term
been employed to an applicant for temporary reinstatement . What
follows are the cases uncovered by the Court’s review.

In Cobra Natural Resources, LLC , 35 FMSHRC 394 (Feb.
2013), a temporary reinstatement proceeding, the Commission employed the
phrase, but in the context of an operator affirmatively proving that a
layoff justifies tolling temporary reinstatement by a preponderance of the
evidence. Id. at 397 (citing Gatlin , 31 FMSHRC at 1055).

In KenAmerican Resources , 31 FMSHRC 1050 (Oct. 2009), also
a temporary reinstatement proceeding, the issue of whether the duration of a
temporary reinstatement should be modified was involved. There, the Commission
instructed that the judge “should determine whether [the mine operator] KenAmerican
has proven by a preponderance of the evidence that the occurrence of the
layoff is a legitimate reason for tolling Mr. Gatlin’s economic reinstatement.
… In sum, in order to justify termination of economic reinstatement, KenAmerican
must prove by a preponderance of the evidence that Mr. Gatlin’s
inclusion in the layoff was entirely unrelated to his protected activities.” Id.
at 1055 (emphasis added). [9]

In C.R. Meyer and Sons Co., 35 FMSHRC 1183 (May 2013),
yet another temporary reinstatement proceeding, the question of tolling the
reinstatement obligation was again involved. The phrase “preponderance of the
evidence” arose there, but again only in the context of the mine operator’s
burden, with the Commission stating “[s]hould the Secretary fail to
sufficiently establish the possibility that any inclusion of Rodriguez in the
layoff might have been motivated by the miner’s protected activity, the judge
must then consider the entire record and determine whether the operator has
proven by a preponderance of the evidence that the layoff of local miners, … justifies
tolling its obligation to temporarily reinstate [the miner].” Id. at
1188 (emphasis added).

In the temporary reinstatement proceeding of CalPortland, 38
FMSHRC 137, (Feb. 2016), a Commission majority affirmed the miner’s temporary reinstatement.
In that case Commissioner Althen dissented on grounds not pertinent to this
review of cases, referring to the “preponderance of the evidence,” but his
remark was in the context of a full discrimination proceeding , that “if
the Secretary or [the miner] can prove by a preponderance of evidence that
CalPortland refused to hire [the miner] based on protected activity, [the
miner] will be entitled to full relief under section 105(c). Id. at 148 ,
n. 1

Sec’y of Labor obo Williamson v. CAM Mining , 31
FMSHRC 1085 (Oct. 2009), is yet another temporary reinstatement matter but it
is of particular importance regarding the preponderance of evidence
applicability in such matters. There, an administrative law judge denied
reinstatement, a decision the Commission reversed and for which it ordered the
immediate reinstatement of the miner. Pointedly all four members then composing
the Commission, which group included Commissioner Young , stated: “we
note that evidence that Williamson was discharged for unprotected activity
relates to the operator’s rebuttal or affirmative defense. In essence, the
judge weighed the operator’s rebuttal or affirmative defense evidence against
the Secretary’s evidence of a prima facie case. In doing so, the judge erred by
assigning a greater burden of proof than is required . In a temporary
reinstatement proceeding, the Secretary need not establish a prima facie
case of discrimination by a preponderance of the evidence . Rather, the
Secretary was required to prove only that a non-frivolous issue exists as to
whether Williamson’s discharge was motivated in part by his protected activity.
Id . at 1091, also citing, Chicopee Coal Co., 21 FMSHRC at 719
(emphasis added). 

In Reading Anthracite , 22 FMSHRC 298, (Mar. 2000),
involved was a review by the Commission vacating a judge’s determination that
Reading did not violate the Act’s section 10(c) discrimination provision. There
the miner had been previously temporarily reinstated. Reference to the
preponderance of the evidence appears only in the dissent. However, the dissent
was somewhat atypical because the dissenting commissioners agreed that the
judge erred; their dissent was that it was unnecessary to send the matter back
to the judge and that the judge’s decision could simply be reversed, finding in
favor of the complainant miner. The dissenting commissioners reminded that the
mine operator, “Reading must prove its affirmative defense by a preponderance
of the evidence,” Id. at 314, citing ( Sec’y of Labor on behalf of
Price v. Jim Walter Resources, Inc ., 14 FMSHRC 1549, 1556 (Sept. 1992)). (“ Price
and Vacha ”).

Speaking of Price and Vacha, four members of the Commission ,
affirming the judge’s decision upon remand that Jim Walter Resources
discriminatorily applied its drug program against the complainants, referred to
the “preponderance of the evidence” but in the context of the mine
operator’s burden in its affirmative defense , stating: “[a]n operator must
prove this affirmative defense by a preponderance of the evidence. E.g .,
Eastern Associated Coal , 813 F.2d at 642.” 14 FMSHRC 1549 at 1556.

In Sec’y of Labor on behalf of Bernardyn v. Reading
Anthracite, 23 FMSHRC 924, (Sept. 2001), the Commission again remanded the
matter to the administrative law judge, after that judge again found no violation
of section 105(c)(1). This decision reiterates the point made in Price and
Vacha , and cites to that decision for the principle that in order “[t]o make
out its affirmative defense, the operator must prove by a preponderance of
the evidence that it would have taken the adverse action in any event
because of unprotected activity alone. Id . at 929. (emphasis added).

Hopkins County Coal , 38 FMSHRC 1317 (June 2016)
is yet another decision by the Commission which refers to the phrase “preponderance
of the evidence,” but its use is not of value to this discussion, as it
employed the phrase only in the context of the Secretary’s burden to establish
the validity of a section 104(b) order, a burden which the Secretary met. The
discrimination matter involved a separate dispute. It involved violations which
were issued in response to the mine’s refusal to release personnel records to
inspectors as part of an MSHA discrimination investigation, records which the
Secretary sought in order to determine whether there was a violation of the
anti-discrimination provisions of the Act. Three commissioners, which is to say
a majority, affirmed that the order was validly issued. Commissioners Althen
and Young dissented, but they made no mention to the preponderance of the
evidence, although they believed that the Secretary “utterly failed to carry
his burden of proof of showing a reasonable basis for the document demand.” Id .
at 1338. In making no mention of the burden of proof, even when they were referencing
temporary reinstatements, the dissenters, Commissioners Althen and Young,
described for that process that “MSHA’s preliminary investigation “must
determine only whether there may be validity to the miner’s
claim, or in other words, that the claim was ‘not frivolously brought.” Id .
at 1344, n.9. (emphasis in original).

From
the foregoing, it can be seen that invoking “preponderance of the evidence” in
the context of an application for temporary reinstatement has no place in the determination
of whether a claim is not frivolously brought. Even the Commission itself,
through the vehicle of a majority opinion, has acknowledged this to be the
case. Sec’y of Labor on behalf of Williamson v. Cam Mining , 31 FMSHRC
1085 (Oct. 2009), supra. This makes sense as a general matter as well,
since establishing a fact by a preponderance of the evidence means to prove
that the fact is more likely true than not true. Fischl v Armitage, 128
F.3d 50, 55 (2d Cir. 1997). That burden is decidedly not required in a
temporary reinstatement proceeding. In fact, it is inappropriate to engage in
such determinations. Mixing the concepts of “not frivolously brought” with
“preponderance of the evidence” is inappropriate, as they are mutually
exclusive concepts in the context of temporary reinstatement applications and doing
so introduces a layer of consideration which can only invite conflict. [10]

Summary of the Court’s Conclusions and Findings
Regarding Complainant William R. Whitmore’s Application for Temporary
Reinstatement

The Court finds
that the credible evidence adduced during the temporary reinstatement hearing
established, writ large, that William Whitmore’s application for temporary
reinstatement was not frivolously brought. [11] Mr. Whitmore’s testimony was not demonstrably false, nor patently
incredible, nor obviously erroneous. The Court finds that the testimony
mustered by Whitmore presented evidence sufficient to support a conclusion that
he engaged in protected activity, that he suffered an adverse employment
action, and that the adverse action was motivated at least in part by that
activity and in light of that, established that his complaint was not frivolously
brought. [12]

The Application for Temporary
Reinstatement is hereby GRANTED . Immediately upon receipt of this
decision Respondent is ORDERED to reinstate Complainant William R.
Whitmore to his former position at the mine, or to a comparable position within
the same commuting area at the same rate of pay and benefits he received prior
to his discharge, pending a final Commission order on the discrimination
complaint. The court retains jurisdiction over this temporary reinstatement
proceeding. 29 C.F.R. § 2700.45(e)(4).

Per 30 U.S. Code § 815,
titled, “Procedure for enforcement,” and in particular, subsection (c)(3) of
the section, the Secretary is directed to comply with that provision which
commands that “[ w]ithin 90 days of the receipt of a complaint filed
under paragraph (2)[of subsection (c)], the Secretary shall notify , in
writing, the miner, applicant for employment, or representative of miners of
his determination whether a violation has occurred.” (emphasis added). The
Secretary shall diligently pursue completion of the investigation in the
underlying discrimination complaint. Immediately upon completion of the
investigation, the Secretary SHALL notify counsel for Yager Materials Corp. and
this court, in writing, whether a violation of Section 105(c) of the Mine Act
has occurred. The Court considers the Secretary’s duty to comply with this
provision to be of high importance. The mine operator’s rights in defending
against the discrimination claim are significantly affected by delays in
meeting this statutory deadline.

SO ORDERED.

/s/
William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Thomas
J. Motzny, Esq., Office of the Solicitor, U. S. Department of Labor, 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]

Wes
Addington, Esq., Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg,
KY 41858   [email protected]

Arthur
M. Wolfson, Esq., Fisher & Phillips, LLP, Six PPG Place, Suite 830,
Pittsburg, PA 15222

a wolfson @fisherphillips.com

[1] This section of
the Court’s decision and order represents a more detailed summary of the
hearing testimony and is derived from what the Court determined to be the
salient evidence for the limited nature of the issue to be resolved in this
hearing. It is not intended as a substitute for the entirety of the transcript.
The parties were all provided with a copy of the transcript on the morning of
July 30, 2020, the day following the hearing.

[2] According to
Whitmore, “Yager Materials never had a maintenance manager for that site since
1954, approximately, whenever they started mining there.” Tr. 64. Once Carmeuse
acquired Yager, they determined it “necessary to have a maintenance manager
on-site,” and he was the first maintenance manager hired for that mine. Tr.
64-65. It was Whitmore’s understanding that Bryan Ory, the site’s general
manager, had worked at Yager for some 32 years. Tr. 65.

[3] Yager
Materials, at both its surface and underground facility, produces limestone. Tr.

78. The operation is located in Battletown, Kentucky. Tr. 20.

[4] In later
testimony, as discussed infra , Yager employees arrived at a different
conclusion, determining that, in their view, Whitmore had raised the
topic with Mike.

[5] Similarly, the
Court finds that the Respondent made no advances to establish frivolousness,
when Whitmore was asked about his anonymous complaint regarding inadequate
training and insufficient documentation of such training. Tr. 89-90.

[6] Although
Counsel for the Respondent, in response to an objection, that his question to
Ms. Wellman was for the limited purpose of showing that those who decided to
fire Whitmore had no knowledge of his protected activity and were only making
the decision because the Whitmore’s alleged remarks to Mike, the Court
sustained the objection.  The Court explained its ruling further noting that “it's
enough if I have, if I accept the veracity of the complainant's testimony and
then we have a close in time termination, which is what we have here. I do have
some evidence that he communicated some of these safety concerns via email and
via his testimony about the spreadsheet. So, … beyond that, that's all I have to
have in meeting the very low bar for whether this complaint is frivolous[ ] or
not.” Tr. 110-111.

[7] In Shaffer,
Commissioner Mary Lu Jordan and now former Commissioner Robert F. Cohen Jr.
hewed to the traditional and longstanding analysis applied to temporary
reinstatement application proceeding, expressing:

“ Under section 105(c)(2) of the Mine Act,
“if the Secretary finds that [a discrimination] complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the
Secretary, shall order the immediate reinstatement of the miner pending final
order on the complaint.” 30 U.S.C. § 815(c)(2). The Commission has recognized
that the “scope of a temporary reinstatement hearing is narrow, being limited
to a determination by the [J] udge as to whether a miner’s discrimination
complaint is frivolously brought.” See 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 (11th Cir. 1990). The “not frivolously brought” standard reflects a
Congressional intent that “employers should bear a proportionately greater
burden of the risk of an erroneous decision in a temporary reinstatement
proceeding.” Jim Walter Res., Inc. v. FMSHRC , 920 F.2d 738, 748 (11th
Cir. 1990).

Courts and the Commission have likened
the “not frivolously brought” standard set forth in section 105(c)(2) with the
“reasonable cause to believe” standard applied in other statutes. Jim Walter
Res., Inc. v. FMSHRC , 920 F.2d 738, 747 (11th Cir. 1990) (“there is
virtually no rational basis for distinguishing between the stringency of this
standard and the ‘reasonable cause to believe’
standard”); Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC ,
34 FMSHRC 1875, 1877 (Aug. 2012) (other citations omitted). The Commission has
noted that in the context of a petition for interim injunctive relief under the
National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(j), courts have
recognized that establishing “reasonable cause to believe” that a violation of
the statute has occurred is a “relatively insubstantial” burden. Argus Energy ,
34 FMSHRC at 1878 (citing Schaub v. W. MI Plumbing & Heating, Inc. ,
250 F.3d 962, 969 (6th Cir. 2001). The Commission stated that in Schaub ,
“the Court explained that the proponent ‘need not prove a violation of the NLRA
nor even convince the district court of the validity of the Board’s theory of
liability; instead he need only show that the Board’s legal theory is
substantial and not frivolous.”’ Id. (citations omitted). It noted that
the Court cautioned:

An
important point to remember in reviewing a district court’s determination of
reasonable cause is that the district judge need not resolve conflicting
evidence between the parties. See Fleischut [v. Nixon Detroit Diesel, Inc. ,
859 F.2d 26, 29 (6th Cir. 1988)] (stating that the appellant’s appeal did not
seriously challenge whether reasonable cause exists; instead it simply showed
that a conflict in the evidence exists); Gottfried [v. Frankel , 818 F.2d
485, 494 (6th Cir. 1987)] (same). Rather, so long as facts exist which could
support the Board’s theory of liability, the district court’s findings cannot
be clearly erroneous. Fleischut ,
859 F.2d at 29 ;
Gottfried , 818 F.2d at 494.

Id. (citations omitted).

Similarly, at a temporary
reinstatement hearing, the Judge must determine “whether the evidence mustered
by the miner[] to date established that [his or her] complaint[] [is]
nonfrivolous, not whether there is sufficient evidence of discrimination to
justify permanent reinstatement.” JWR , 920 F.2d 744. As the Commission
has recognized, “[i]t [is] not the [J]udge’s duty, nor is it the Commission’s,
to resolve the conflict in testimony at this preliminary stage of proceedings.”
Sec’y of Labor on behalf of Albu v. Chicopee Coal Co. , 21 FMSHRC 717,
719 (July 1999). The Commission applies the substantial evidence standard in
reviewing the Judge’s determination. Sec’y
of Labor on behalf of Bussanich v. Centralia Mining Co. , 22 FMSHRC 153, 157
(Feb. 2000).

While
an applicant for temporary reinstatement need not prove a prima facie case of
discrimination, it is useful to review the elements of a discrimination claim
in order to assess whether the evidence at this stage of the proceedings meets
the non-frivolous test. CAM Mining, LLC , 31 FMSHRC 1085, 1088 (Oct. 2009).
In order to establish a prima facie case of discrimination under section 105(c)
of the Mine Act, a complaining miner bears the burden of establishing (1) that he engaged in protected
activity and (2) that the adverse action complained of was motivated in any
part by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation
Coal Co. , 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds , 663 F.2d 1211
(3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal
Co. , 3 FMSHRC 803 (Apr. 1981). The Commission has identified the following
indicia of discriminatory intent to establish a nexus
between the protected activity and the alleged discrimination: (1) knowledge of
protected activity; (2) hostility or animus toward the protected activity; (3)
coincidence in time between the protected activity and the adverse action; and
(4) disparate treatment of the complainant. CAM Mining , 31 FMSHRC at
1089 (other citations omitted).” Shaffer at 41-43.

[8] By analogy,
this is in keeping with the somewhat related concept that where two
Commissioners vote to grant a motion and two to deny, the original decision
stands. See, e.g., Sec'y of Labor on behalf of McGary v. Marshall County
Coal Co., 40
FMSHRC 767, 768

(June
28, 2018) (Commissioners Jordan and Cohen, in favor of denying the stay and
then Acting Chairman Althen and Commissioner Young, in favor of granting the
stay).

[9] A few of the
cases found by the Court have been relegated to this footnote as follows. In the temporary reinstatement
proceeding in North Fork Coal Corp., 33 FMSHRC 27 (Jan. 2011),    a
majority of the Commission held that the miner’s reinstatement was not
dissolved following the Secretary of Labor’s decision to not pursue the full
discrimination proceeding. The miner, however, as permitted under the statutory
scheme, then filed his own action under section 105(c)(3).  Commissioners Young
and former Commissioner Duffy dissented on that outcome, but as it pertains to
this review, “preponderance of the evidence” only arose in the context of those
dissenting commissioners referring to the Secretary’s burden of proof in the
full discrimination proceeding . Id. at 55. In Lehigh
Cement Co. , 2020 WL 4366183 (July 2020), a unanimous Commission
concluded that the judge erred in tolling a miner’s economic reinstatement. Here
again, although the phrase “preponderance of the evidence” was invoked, it was
to point out that “ [ o ] perators bear the burden of showing
by a preponderance of the evidence that tolling is justified.” Citing, Sec’y
of Labor on behalf of Ratliff v. Cobra Natural Res., LLC , 35 FMSHRC
394, 397 (Feb. 2013). Id. at *3 (emphasis added). Note, in a related Lehigh
Cement Co. case, 2020 WL 4366184 (July 2020), distinctive only in that a
different docket number was involved, the same result was reached. In Robinette
v. United Castle Coal , 3 FMSHRC 803, (April 1981),
the Commission remanded to address an aspect of the discrimination issue. For
the purposes of this review, the phrase “burden of proof” only arose in a
footnote analogy concerning unfair labor practices in NLRB matters and therefore
is of no consequence to this review. Id. at 818, n. 20. Last, in Contractors Sand
and Gravel, 20
FMSHRC 960, (Sept. 1998), that case too is only tangential to this review
because its thrust concerned the recovery of attorney’s fees and expenses under
the Equal Access to Justice Act. In speaking to that issue, the Commission
found that the Secretary’s position had a reasonable basis in fact and rejected
the contention that the Secretary had to establish its position under the
preponderance of evidence standard. Id . at 973.

[10] Although the
Court’s exposition of the Commission’s case law regarding temporary reinstatement
is dispositive, it is noted that in other non-mine safety and health matters,
courts have eschewed comingling the concepts of preponderance of evidence and
frivolousness. For example, in National Labor Relations matters pertaining to
temporary injunctive relief, the 5 th Circuit observe that it was not
their duty at that “juncture to pass upon whether violations have been
established by a preponderance of the evidence, but merely to decide that the
Board’s theories are substantial and not frivolous.” Boire v. Pilot Freight
Carriers, Inc ., 515 F.2d 1185, 1191 (5th Cir. 1975).

[11] The Court
received a “Post-Hearing Statement” from the Respondent. (“R’s Statement”).  The
parties representing the Complainant were given an opportunity to respond and
declined to do so. The Court finds that the Complainant’s representatives’
decision to not respond is understandable, given the record testimony. Further,
the body of this decision ordering Mr. Whitmore’s immediate reinstatement
effectively addresses the contentions raised by the Respondent. However, the
Court makes the following additional comments about the R’s Statement. Respondent
raises two challenges in an attempt to show that the application is frivolous. First,
Respondent contends that Complainant’s April 6, 2020 email expressing his
concern about a contractor employee and whether that individual was practicing
social distancing in light of COVID 19 did not constitute protected activity. R’s
Statement at 5. The Court does not agree. The Court refers the reader to the
transcript summary above. By raising his concern, the Complainant was voicing a
health concern, which constitutes protected activity. The Respondent then
states that such a concern may be analogized to a protected work refusal. Id.
From that argument, the Respondent seems to argue that a miner’s expressed
health concern, when not specifically covered by a standard, evaporates once
the miner has been given reassurance about the concern. The analogy does not
hold up; Whitmore did not make a work refusal in connection with his expressed
health concern. Further, expressing his concern was protected activity and its
status as such remained so, even if the employer addressed it.

Respondent’s
second contention is that without showing that the Respondent’s
decision-makers, meaning the two individuals who decided to fire the
Complainant, knew of, that is to say “had knowledge of” Whitmore’s several
instances of protected activity, the complaint is frivolous. Respondent asserts
that the only evidence of record is that the two individuals who decided to
fire Whitmore testified that they knew nothing of his protected activities and
terminated him solely on another basis, as described above in the body of this
decision. As such, Respondent asserts that, their decision being pure of any
protected activity knowledge, makes Whitmore’s complaint frivolous. Id. 7-9.
As the discussion of the applicable case law, set forth above, makes clear, the
temporary reinstatement application proceeding may not be based on such claims,
as it would transform the proceeding into resolving conflicts in testimony. Such
a conflict is plainly present. A conflict can exist in less direct forms than a
contention and a denial. Thus, the mere assertion by two witnesses maintaining
certain factual contentions, even if not specifically denied, can still
present a conflict, when viewed from the perspective of the entire record. In
short, a conflict can exist in more subtle forms than an assertion and a
parallel denial. At this stage, made for the purpose of determining only
non-frivolity, it is not required for the Complainant to establish that the two
individuals made their decision on grounds beyond their claimed basis. Instead,
again as plainly described above, the Complainant established multiple instances
of protected activity, each of which the Court found to be have been
communicated, that he suffered the adverse action of termination, and that such
termination occurred within a short period of time following expression of his
safety and health concerns. “Requiring the Judge to resolve alleged
inaccuracies and conflicts in testimony when the parties have not yet completed
discovery would improperly transform the temporary reinstatement hearing into a
hearing on the merits.” Sec. obo Deck v FTS Int’l , 34 FMSHRC 2388, 2391
(Sept. 2012), citing Chicopee Coal , 21 FMSHRC at 719; CAM Mining ,
31 FMSHRC at 1088-89 .

[12] It is worth
restating that in the context of an application for temporary reinstatement the
test is not whether there is sufficient evidence of discrimination to
justify permanent reinstatement.