Samoyed Energy Company, Inc.

Plain-English summary

Tony Wiley alleged that Samoyed Energy Company discharged him in retaliation for reporting dangerous mine conditions. Judge Gary Melick found that Wiley made protected safety complaints, including complaints about road conditions, a gas line, and inadequate bulldozer heat, but found no sufficient evidence that the complaint about the low-boy operation reached management. The judge concluded that Samoyed discharged Wiley because he failed to call in before an absence, along with other work issues, and would have taken the same action for those unprotected reasons. The discrimination complaint was denied and the case was dismissed.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 815(c)(3)
• Outcome: The discrimination complaint was denied and the case was dismissed.
• Key point: Protected safety complaints did not establish unlawful discharge where the operator proved it acted for separate, unprotected reasons and would have taken the same action anyway.

Full text (FMSHRC public release)

CCASE:
TONY WILEY V. SAMOYED ENERGY
DDATE:
19861024
TTEXT:

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          Federal Mine Safety and Health Review Commission
                Office of Administrative Law Judges

TONY WILEY, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. KENT 86-99-D
v.
PIKE CD 86-11
SAMOYED ENERGY COMPANY, INC.,
RESPONDENT

                             DECISION

Appearances: JoAnn Harvey, Esq., Appalachian Research and
Defense Fund of Kentucky, Inc., Prestonsburg,
Kentucky, for Complainant;
James P. Pruitt, Jr., Esq., Pruitt and de Bourbon,
Pikeville, Kentucky, for Respondent.

Before: Judge Melick

 This case is before me upon the complaint by Tony Wiley

under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. 801 et seq., the "Act," alleging that he was
discharged from Samoyed Energy Company, Inc. (Samoyed) on
December 31, 1985, in violation of section 105(c)(1) of the
Act.(FOOTNOTE 1)

 In order for the complainant to establish a prima facie

violation of section 105(c)(1) of the Act he must prove by a
preponderance of the evidence that he engaged in an activity
protected by that section and that his discharge was motivated in
any part by that protected activity. Secretary on behalf of
Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980), rev'd
on other grounds sub nom. Consolidation Coal Company v. Marshall,
663 F.2d 1211 (3d Cir.1981). The operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was not motivated in any part by
protected activity.

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If an operator cannot rebut the prima facie case in this manner
it nevertheless may defend affirmatively by proving that (1) it
was also motivated by the miner's unprotected activities, and (2)
it would have taken the adverse action in any event for the
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Donovan v.
Stafford Construction Company, 732 F.2d 954 (D.C.Cir.1984); Boich
v. FMSHRC, 719 F.2d 194 (6th Cir.1983). The Supreme Court has
approved the National Labor Relations Board's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act. NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).

 In this case Mr. Wiley alleges that he made periodic

complaints notifying the operator's agent, Preparation Plant
Supervisor Don Burgraff, of alleged dangers at its mine. In
particular he alleges as protected activity the reporting of: (1)
the tramming of a DÄ6 bulldozer on a low-boy trailer in such a
way that the blade of the bulldozer obstructed his view in the
rear view mirrors creating a danger in making turns without a
flagman or escort; (2) the operation of the bulldozer in the
refuse area during particularly muddy conditions and supporting
the truck beds with the bulldozer blade to keep the trucks from
turning over while dumping; (3) operating the dump trucks and
bulldozer over a gas line without sufficient fill material to
protect the gas line; and (4) the absence of a heat tube or other
heating device in the bulldozer cab during cold weather.

 With respect to the first allegation, Wiley maintains that

he began complaining about those conditions in early November and
then "every day" thereafter. With respect to the second
allegation, Wiley maintains that he complained to Burgraff about
the mud every time it rained and every evening after "it would
happen." His last complaint in this regard was allegedly made to
Burgraff the Friday before his discharge when Burgraff was at the
refuse site as they were supporting a truck with two bulldozers.
Wiley also testified that he complained "every day" to Burgraff
that "something would have to be done about the gas line." Wiley
maintains that he sent his complaints by way of the truck drivers
to Burgraff throughout the day. With respect to the fourth
allegation Wiley maintains that he complained to Burgraff "every
day it was cold" about the inadequate heat in the bulldozer.

 Truck driver Greg Pack worked with Wiley during relevant

times. Pack confirmed that he had talked to Burgraff several

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times on behalf of both Wiley and himself concerning the need for
fill material to cover the gas line and about the unsafe
conditions on the access road to the refuse site. He also
conveyed Wiley's complaints about the lack of heat in the
bulldozer and the need for a heat tube.

 Burgraff acknowledged in his testimony that Wiley had

complained to him about road conditions at the refuse site and,
in particular, about the need for fill to cover the gas line.
Wiley had also complained to him about the lack of heat on the
bulldozer. Burgraff denied however that Wiley had ever complained
to him about the operation of the low-boy. In the absence of
corroboration of the latter alleged complaint and of Burgraff's
denial (in contrast to his unqualified acknowledgement of the
other complaints) that such a complaint about the operation of
the low-boy was made to him I do not find sufficient evidence
that the complaint was in fact communicated to Burgraff as
alleged.

 It is clear however that the remaining complaints by Mr.

Wiley concerning allegedly dangerous conditions were communicated
at some point in time to Burgraff. Wiley's testimony in this
regard is corroborated in essential respects by both Greg Pack
and Burgraff himself. Accordingly I find that the complainant has
met the first element of a prima facie case and that indeed he
was engaged in a protected reporting of alleged dangers at the
mine site to an agent of the mine operator.

 The Complainant also maintains that his discharge was

motivated by that protected activity. In support of this causal
relation he cites evidence that he made repeated safety
complaints and that the reason given to him by mine management
for his discharge i.e., absence without calling in, was
inconsistent with what he was told was company policy.

 It is not disputed that Wiley was absent from work on

December 30, 1985 and that he failed to notify his employer of
this anticipated absence. Wiley says that he was ill that day
with arthritis and therefore went to see his doctor. When he
showed up for work on December 31, he presented a doctor's excuse
to Burgraff. Wiley maintains that his first supervisor at
Samoyed, Frank Price, told him only that if he missed a day of
work and did not call in he "had better bring in a doctor's
excuse" the first day back. Price testified at hearing and fully
corroborated Wiley's testimony in this regard.

 Clifford Marenko, Samoyed's president testified that it was

Samoyed policy that if an employee expected to be absent from
work because of illness he was required to call in or have
someone call on his behalf to notify the mine. Marenko admits
that he never told Wiley of this policy. Marenko

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testified that after Wiley failed to show up on December 30, and
had not called in, he met with Don Burgraff and William
Higginbotham to discuss the situtation. Greg Pack who car-pooled
with Wiley was also absent that day and at the time of the
meeting it was thought that he too had not called in. Pack was
also therefore discharged at that meeting.

 Marenko felt that Wiley's absence without calling in was

"the last thing that I could tolerate". In deciding to discharge
Wiley, Marenko also considered however that Wiley had previously
been tardy on several occasions and had failed to obtain hard toe
safety shoes. Marenko had previously warned Wiley that he could
be fired for not wearing safety shoes. Marenko testified that he
had discharged approximately 10 other employees over a period of
2 to 3 years for failing to call in when sick.

 Don Burgraff also participated in the decision to discharge

Wiley and Pack. He too believed that it was company policy to
call in when sick. He decided that Wiley should be discharged
based on the fact that he failed to call in sick that day, that
he had not obtained safety shoes as he had been told to do, that
he had been tardy on a number occasions and that there was "some
question" about his work ability. Wiley's absence on December
30th was a particular problem because it necessitated the shut
down of the preparation plant until a substitute bulldozer
operator could be transferred to the refuse site. Burgraff denied
that this discharge was the result of safety complaints.

 According to Marenko and Burgraff, Greg Pack was

subsequently reinstated when it was discovered that someone had
in fact called the security guard on his behalf early on the
morning of December 30, to advise that he would not report to
work that day because of illness. When Pack was rehired he was
warned by Burgraff that it was necessary for him to call in if he
was sick to give advance notice.

 In finding that Wiley did not suffer an unlawful discharge

in this case I have considered that other employees of Samoyed
(including the complainant's witnesses Greg Pack and Joe Alston)
had complained of two of the three allegedly dangerous conditions
that Wiley himself had complained of and suffered no apparent
retaliation. I have also considered that other employees (10 or
11 employees over the previous 2 or 3 years according to the
undisputed testimony of Marenko) had also been discharged for the
same reason given to Wiley i.e. for failing to call in and notify
the mine operator of absence because of illness. Other employees
similarly situated were thus treated in the same manner as Wiley.
Indeed I therefore conclude that the mine operator has rebutted
the complainant's case by showing that the adverse action was not
motivated in any part by the protected

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activity. In any event the evidence is sufficient to show that
Samoyed would have discharged Mr. Wiley for his unprotected
activities alone. Haro, supra.

 In reaching these conclusions I have not disregarded the

evidence that Wiley had not been specifically told of the company
policy requiring employees to call in when sick. Such a policy
is, however, one that the ordinary working man would be expected
to know without the necessity of being told. This is
particularily true where the employee is working in a critical
job (as was Wiley) and where his absence would cause considerable
disruption of his employer's business. The credible evidence is
that it is also the accepted industry practice for employees to
call in when anticipating an absence due to illness.

 In any event there is no evidence that the officials

responsible for discharging Wiley were even aware that he had not
been informed of that policy. Thus I cannot ascribe any animus
from the fact that Wiley was discharged at least in part based on
a policy about which he had not been specifically informed.

 Under the circumstances the complaint of unlawful discharge

herein must be denied and this case dismissed.

                         Gary Melick
                         Administrative Law Judge

1 Section 105(c)(1) of the Act provides in part as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the statutory rights
of any miner, . . . in any coal or other mine subject to this
Act 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, . . . at the coal or other
mine of an alleged danger or safety or health violation in a coal
or other mine . . . or because of the exercise by such miner,
. . . on behalf of himself or others of any statutory right
afforded by this Act.