Great Western Coal, Inc.

Plain-English summary

Randy J. Collier alleged that Great Western Coal discharged him because he had complained about unsafe equipment and working conditions. Judge James A. Broderick found that Collier's complaints about broken steps, heat, dust, steering, windshield wipers, and truck doors were protected activity. The Judge found no evidence that those complaints motivated the discharge and concluded that Great Western acted because Collier was unable to perform the job. The discrimination proceeding was dismissed.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c)
• Outcome: The discrimination proceeding was dismissed.
• Key point: Safety complaints may be protected activity, but a discrimination claim requires evidence that the protected activity motivated the adverse action.

Full text (FMSHRC public release)

CCASE:
RANDY J. COLLIER V. GREAT WESTERN COAL
DDATE:
19900109
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

RANDY J. COLLIER, DISCRIMINATION PROCEEDING
COMPLAINANT
v. Docket No. KENT 89-198-D

GREAT WESTERN COAL, INC.,
RESPONDENT

                               DECISION

Appearances: Charlie R. Jessee, Esq., Abingdon, Virginia,
for Complainant; Joshua Santana, Esq., Brown,
Bucalos, Santana & Bratt, Lexington, Kentucky,
for Respondent.

Before: Judge Broderick

STATEMENT OF THE CASE

 Complainant contends that he was discharged from his

position as heavy equipment operator with Respondent Great
Western Coal, Inc. (Great Western) because of complaints of
unsafe working conditions, in violation of section 105(c) of the
Federal Mine Safety and Health Act of 1977 (the Mine Act). Great
Western contends that he was discharged because of physical
inability to perform the duties of his job. Pursuant to notice,
the case was heard in Abingdon, Virginia, on October 5, 1989.
Randy J. Collier, Tim Moore, and Henry Frank Doan testified on
behalf of Complainant and Jerry Wayne Brown and Ben Scearse were
called by Complainant as adverse witnesses; Linda Downs testified
on behalf of Great Western. Both parties have filed posthearing
briefs. I have considered the entire record and the contentions
of the parties, and make the following decision.

FINDINGS OF FACT
1. Complainant Randy Collier, 35 years of age, worked for
Great Western for 12 years until he was terminated on March 30,
1989. During eleven of the twelve years, he worked as a heavy
equipment operator.

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2. Great Western was the operator of a coal mine in or near
Coalgood, Kentucky, apparently having both surface and
underground facilities. The operation of the mine affected
interstate commerce.

 3. At some time in 1979, Complainant was employed driving a

Caterpillar rock truck. He attempted to move by hand a rock which
had fallen in front of his truck, and injured his back. He had
surgery for a ruptured spinal disc.

 4. At some time in 1983, the two lower steps of

Complainant's rock truck were missing, having been torn off by
contract drivers. Complainant and his immediate supervisor, Ben
Scearse complained about the broken steps for about a month but
they were not repaired. (Scearse testified that he did not recall
any such complaints and denied that the steps were broken. I am
accepting Complainant's testimony on this matter.)

  5. One evening in 1983, Complainant jumped to the ground (4

or 5 feet) from the bumper of the rock truck resulting in another
back injury. Complainant underwent surgery for a second ruptured
disc.

 6. On several occasions Complainant complained to

construction superintendent Jerry Brown, of extreme heat inside
the cab of his truck or dozer. An operating air conditioner was
not provided, although some of Great Western's equipment had air
conditioners. Complainant also complained of excessive dust which
affected a skin condition he had called hyperhydrosis.

 7. At some unknown times in the past Complainant complained

of a defective steering clutch on a John Deere dozer and
defective windshield wipers on equipment which he operated.

 8. In early 1987, Complainant was assigned to drive a truck

carrying a crew of workmen from the mine offices to the job site,
a distance of 3 or 4 miles. The truck had defective doors, both
on the driver's side and the passenger's side.

 9. Complainant and his immediate foreman Ben Scearse

complained to the Superintendent Jerry Brown about the condition
of the doors, but Brown declined to have them repaired. The last
time Complainant discussed the condition with Brown was about
March 1, 1987. Both Brown and Scearse denied that Complainant
made such complaints, and Complainant's testimony is not
supported by his coworkers Tim Moore and Henry Frank Doan.
Nevertheless, I find as a fact that Complainant did in fact make
such complaints to Brown and related them to safety.

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10. On April 7, 1987, Complainant struck the door twice to open
it and again injured his back and neck. He was taken to the
hospital. He was x-rayed and treated with medication and remained
off work 4 or 5 days.

 11. He returned to work but continued to have pains in his

neck, chest and arm. In September 1988, Great Western told him
that he could not continue to work unless he promised he would
run the equipment without taking pain pills and muscle relaxers.

  12. He continued working until December 1988. A myelogram

was performed on December 29, 1988, and showed nerve root
compression in the cervical spine. A spinal fusion was performed
in February 1989. He has not worked for Great Western since that
time.

 13. Complainant's physician was of the opinion that

Complainant was disabled for the work of heavy equipment operator
or truck driver.

 14. On March 30, 1989, Great Western terminated

Complainant's employment "because of [his] unavailability for
work." (R. Ex. 2.)

 15. At the time his employment was terminated, Complainant

was paid at the rate of $13.45 an hour. He also had company-paid
health insurance, retirement benefits, vacation pay and "coal
bonuses," amounting to from $1.50 to $1.75 an hour.

 16. In April 1989, Complainant filed a workers' compensation

claim in which he stated he was totally disabled from performing
his work. At the time of the hearing in the instant case, a
decision had not been rendered in the workers' compensation case.

ISSUES

 1. Was Complainant discharged from his employment for

activities protected under the Mine Act?

  2. If so, to what remedies is he entitled?

CONCLUSIONS OF LAW
1. Complainant Collier and Respondent Great Western are
subject to and protected by the provisions of the Mine Act,
Complainant as a miner and Respondent as a mine operator. I have
jurisdiction over the parties and the subject matter of this
proceeding.

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2. Under the Act, a miner establishes a prima facie case of
discrimination if he proves that he was engaged in protected
activity and was subjected to adverse action which was motivated
in any part by the protected activity. Secretary/Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Secretary/Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (1981). The mine 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 the
protected activity. If the operator cannot rebut the prima facie
case in this manner, it may defend affirmatively by proving that
it was also motivated by the miner's unprotected activity, and
would have taken the adverse action for that activity in any
event.

 3. Complainant's complaints in 1983 of the absence of steps

on the rock truck which he was operating (Finding of Fact No. 4);
his complaints of extreme heat and excessive dust inside the cab
of the truck and dozer he was operating (Finding of Fact No. 6);
his complaints of a defective steering clutch and defective
windshield wipers on equipment he was operating (Finding of Fact
No. 7); and his complaints of defective doors on the truck used
to convey miners to the worksite (Finding of Fact No. 9) were all
activities related to safety and protected under the Mine Act.

 4. Complainant's discharge on March 30, 1989, constituted

adverse action.

 5. There is no evidence that Complainant's discharge was

motivated in any part by the safety complaints referred to in
conclusion of law No. 3, nor is there evidence from which I could
infer that his discharge was motivated by such complaints. I
conclude that his discharge was motivated by his inability to
perform the duties of his job. Complainant worked for many years
after the 1983 complaints and for almost 2 years following the
1987 complaints. The evidence is clear that none of these
complaints were factors in his discharge.

 6. Complainant's injuries were due in part to defective

equipment at work (broken steps on the rock truck in 1983;
defective door on the miner carrying truck in 1987). These facts
do not establish a discrimination case under section 105(c) of
the Mine Act.

 7. Complainant has filed for state workers' compensation

benefits, and Great Western has contested his claim. The
discharge of an employee with a pending workers' compensation
case does not state a case of discrimination under section 105(c)
of the Mine Act.

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8. I conclude that Complainant has failed to establish a prima
facie case of discrimination since he has not shown that the
adverse action was motivated in any part by protected activity.

                          ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED that this proceeding is DISMISSED.

                          James A. Broderick
                          Administrative Law Judge