Smith v. Kem Coal Company

Plain-English summary

Charles Smith said Kem Coal discharged him after he complained about coal falling onto his bulldozer and threatened to report safety concerns to MSHA. The administrative law judge found discrimination and awarded back pay, damages, and attorney fees. The Commission found unresolved conflicts in the testimony about the discharge and whether the operator's supervisor distorted the events, which prevented meaningful review. It vacated the judge's decision and remanded for new factual findings and reconsideration under the Mine Act discrimination test.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c), 30 U.S.C. § 823(d)(2), and the Commission's procedural rules.
• Outcome: The discrimination decision and related relief were vacated and remanded for further consideration.
• Key point: An appellate decision must explain how critical credibility conflicts and factual inferences support its discrimination finding.

Full text (FMSHRC public release)

CCASE:
CHARLES SMITH V. KEM COAL
DDATE:
19921027
TTEXT:
CHARLES T. SMITH

v. Docket No. KENT 90-30-D

KEM COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This discrimination case arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. • 801 et seq. (1988)(the "Mine Act" or "Act"),
is before the Commission by way of a petition for discretionary review filed
on March 1, 1991, by Kem Coal Company ("Kem Coal"). In its petition, Kem
Coal seeks review of Commission Administrative Law Judge William Fauver's
decision on the merits issued October 31, 1990 (12 FMSHRC 2130), and of his
final disposition on stipulated damages, costs and attorney fees issued
January 31, 1991. 13 FMSHRC 166. Kem Coal asserts that substantial
evidence does not support the judge's conclusion that Charles T. Smith
established a prima facie case of discrimination under section 105(c) of the
Mine Act, 30 U.S.C. • 815(c), and that, even assuming such a prima facie
case was established, the judge failed to address Kem Coal's affirmative
defense, which alleged that the operator would have discharged Smith in any
event for activity not protected under the Mine Act. For the reasons that
follow, we vacate the judge's decision and remand the matter for further
proceedings consistent with this decision.
I. Factual and Procedural Background
Kem Coal operates a coal processing facility, known as the No. 25
Preparation Plant, located in London, Kentucky. 12 FMSHRC 2130. The plant
utilizes three shifts per day (morning and afternoon production shifts and a
night maintenance shift) and employs between 15 and 18 miners. Tr. 40, 58.
The facility operates as follows: coal coming onto the property is
fed onto a conveyor system that deposits the coal into two round storage
bins called stacking tubes or stackers. The stackers are 20 to 25 feet high
and have windows or chutes at both the top and the bottom. When coal builds
up in a stacker to the level of the lower windows, it is supposed to spill
out of the stacker and form a cone-shaped pile below. In turn this pile is
supposed to fall through a hopper to a feeder system that carries the coal
by conveyor to the facility's washing plant. When coal from the stacker
spills away from the hopper area and the accumulation of material is
~68

insufficient to maintain the automatic feeding system, a bulldozer is used
to push coal into the feeder to maintain the flow of material to the washing
plant. 12 FMSHRC at 2130-31.
Occasionally, the lower windows of a stacker become clogged with coal
and mud, causing the stacker to fill up with material which is then
discharged haphazardly from the upper windows of the stacker. The usual
corrective procedure is either to use a high pressure water hose to unclog
the windows or to lower a worker into the stacker on ropes to free up the
obstruction. 12 FMSHRC at 2131.
Complainant Charles T. Smith began working at Kem Coal's preparation
plant in October of 1988. He started as an oiler on the maintenance shift,
but in April or May of 1989, he was transferred to the afternoon shift as a
dozer operator. 12 FMSHRC at 2131-32. Tr. 42. His duties included pushing
coal into the feeders, as described above, and consolidating and compacting
refuse at a refuse pile located near the stackers. Tr. 59.
On June 20, 1989, Smith was operating the dozer and pushing coal at
the No. 2 stacker when the lower windows of the stacker became clogged and
coal began falling from the upper windows onto the dozer. He radioed the
plant's control room and asked that his foreman, Henry Halcomb, be notified
of the problem. According to Smith, Timmy Miller, who was operating the CB
radio in the control room, subsequently relayed a message from Halcomb to
Smith to "go ahead and run it." Thereafter, a chunk of coal hit one of the
dozer windows and broke it. Smith again radioed the control room and told
Miller the windows of the dozer were getting "knocked out of it and we don't
have enough coal to push." Miller again relayed the message to "go ahead
and run it." 12 FMSHRC at 2131.
At that point, a chunk of coal hit a wire in the dozer's electrical
system and its lights went out. Smith informed the control room and was
told by Miller that Halcomb had said if Smith did not want to run the
machine he could park it and go home, and Halcomb would have a mechanic fix
it. Smith pulled the dozer back from the stacker, repaired the lights, and
proceeded to push coal into the feeder. Id.
Later in June, Smith confronted Halcomb and complained to him that
Halcomb had put his life in danger by making him push coal while material
from the upper windows was falling on the dozer. According to Smith,
Halcomb replied that it was Smith's job to push coal. 12 FMSHRC at 2132.
On July 14, 1989, the incline feed belt that carries coal to the
washing plant broke and the entire afternoon crew was assigned to replace
it. The work was performed under the direction of Roger Cox, the plant
superintendent. At some point during the shift, Smith asked Cox when he
(Smith) would be given a dinner break. Cox replied that, once the belt had
been replaced, Cox would have someone relieve Smith. Cox apparently went
home after the belt replacement and no one relieved Smith. About an hour
and a half before the shift was over, Smith asked Halcomb whether he could
take a dinner break and was told it was too close to quitting time and he

would not get to eat. 12 FMSHRC at 2132.
~69
On July 15, 1989, Smith arrived at the mine with the intention of
complaining to Cox about what he regarded as general harassment by Halcomb,
but Cox was not at the mine. Smith went to the training room and found
Halcomb and other members of the afternoon shift. Smith told Halcomb that
he was going to complain to Cox about Halcomb's harassment and first cited
his missed dinner break on the night before. Halcomb replied that, since
Cox had supervised the belt replacement, Smith's argument was with Cox.
12 FMSHRC at 2132-33. As the argument progressed, the other members of the
crew left the training room, leaving Smith and Halcomb alone.
12 FMSHRC at 2133.
Smith raised the June 20, 1989, incident at the coal stacker, when
Smith felt his life had been put in danger, and threatened to report the
matter to the Mine Safety Health Administration (MSHA). Halcomb denied that
he had put Smith's life in danger and claimed that Smith's characterization
of Halcomb's message as relayed by Miller was "hearsay" and that he had not
said what Smith alleged. Smith then directed a vulgar epithet at
Halcomb.(Footnote 1) At that point Halcomb, in effect, suspended Smith
by telling him to "go to the house." Id.
Both Smith and Halcomb called Cox at home that afternoon but he was
not in. Tr. 44. Later that evening, Cox returned Halcomb's call and
Halcomb related his version of the afternoon's events. 12 FMSHRC 2133,
Tr. 44. On Monday morning, July 17, 1989, Smith went to the mine and met
alone with Cox. Smith complained to Cox about Halcomb's harassment and
specifically mentioned the stacker incident and the missed dinner break.
Cox asked Smith if he had sworn at Halcomb, and Smith told Cox that he had.
Cox then told Smith that he was fired. 12 FMSHRC at 2133-34.
The judge found (1) that since Superintendent Cox was also an ordained
minister, Halcomb "was aware of or could reasonably expect [Cox's]
sensitivity to profane language and his philosophy of supporting his
supervisors"; (2) that Halcomb "shaped his factual account to Cox concerning
the argument with [Smith] to injure [Smith] in Cox's eyes" by inaccurately
indicating to Cox that Smith used "God damn" in his epithet and that the
epithet was expressed in front of other members of the crew; (3) that
Halcomb did not tell Cox that Smith had apologized immediately after using
the epithet; and (4) that Halcomb did not tell Cox that Smith had said he
was going to take his safety complaints about Halcomb to MSHA.
12 FMSHRC at 2133.

1 The precise wording of the epithet was in sharp dispute between the
parties and, as will be discussed below, was a significant issue in the judge's
ultimate determination in favor of Smith. Smith testified, and the judge found,
that Smith called Halcomb a "lying son of a bitch." Tr. 24. Halcomb testified
that Smith called him a "God damn son of a bitching liar." Tr. 88. Cox

testified that Smith had admitted using the latter phrase when Cox questioned
him about the incident. Tr. 71. Smith also testified, and the judge found,
that he apologized to Halcomb immediately after swearing at him, whereas
Halcomb
testified that Smith offered no apology. Tr. 24, 89. Cox testified that neither
Halcomb nor Smith indicated to him that Smith had apologized. Tr. 63.
~70
The judge determined that Smith's safety complaints constituted
protected activity. The judge specifically cited the June 20, 1989,
incident at the coal stacker when Smith radioed his safety complaints to
Halcomb through the control room operator; the confrontation in late June
when Smith complained in person to Halcomb about the stacker incident; and
the confrontation on July 15, 1989, when Smith reiterated his complaints to
Halcomb and threatened to take his complaints to MSHA. 12 FMSHRC at 2135.
The judge found that Halcomb took adverse action against Smith in
retaliation for his protected activity by suspending Smith without pay on
July 15, 1989, and by "giving a distorted factual account" of the July 15,
1989, argument to Cox "with the intention or expectation of influencing the
superintendent to discharge [Smith]." 12 FMSHRC at 2136.
As a basis for the latter conclusion, the judge found that "Halcomb
knew, or could reasonably expect that the superintendent, who was a
practicing pastor, would be offended by the religious epithet he substituted
for Complainant's actual language, and that the superintendent would
consider cursing a foreman in front of his crew a dischargeable offense."
12 FMSHRC 2136.
The judge went on to conclude that the "distorted factual account"
resulted in Smith's discharge because Cox fired Smith for insubordination
and "cussing" at Halcomb; Cox was unaware that "God damn" was not used in
the epithet or that the epithet was expressed when Smith and Halcomb were
alone; and because, according to Cox, if Smith and Halcomb had been alone
"`it could have probably been resolved', that is, without discharging
[Smith]." 12 FMSHRC at 2136-37. Lastly, the judge held that even though
Cox had been deceived by Halcomb, it did not alter the fact that management,
through Halcomb, had taken discriminatory action against Smith that resulted
in his discharge. Accordingly, the judge found Kem Coal in violation of
section 105(c).
The judge ordered the parties to confer in an effort to stipulate
damages, including back pay and litigation costs. By a subsequent decision
issued January 31, 1991, the judge awarded Smith $21,864.18 in back pay and
other damages plus any additional back pay accruing until his reinstatement
or his rejection of reinstatement, and attorney fees of $4,522.50.
II. Disposition of Issues
The Commission has long held that a miner seeking to establish a prima
facie case of discrimination under section 105(c) of the Mine Act bears the
burden of production and proof to establish that he engaged in protected

activity and that the adverse action complained of was motivated in any part
by that activity. Secretary o.b.o. Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2797-2800 (October 1980) rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary
o.b.o. Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April 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. Robinette, 3 FMSHRC at 818 n.20. Failing
~71
that, the operator may nevertheless affirmatively defend against the prima
facie case by proving that it was also motivated by unprotected activity and
would have taken the adverse action in any event for the unprotected
activity alone. See also Donovan v. Stafford Construction Co., 732 F.2d
954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th
Cir. 1983)(specifically approving the Commission's Pasula-Robinette test).
Substantial evidence supports the judge's conclusion that Smith
engaged in protected activity when he complained about coal falling on his
bulldozer on June 20, 1989, and when he complained again to Halcomb in their
confrontations later in June and during their argument on July 15, 1989.
Furthermore, it is undisputed that adverse action was taken against Smith by
reason of his suspension without pay on July 15, 1989, and his ultimate
discharge on July 17, 1989. The Pasula/Robinette test also requires the
Commission and its judges to determine whether the adverse action complained
of was motivated in any part by the complainant's protected activity.
The judge found that Halcomb was motivated to discriminate against
Smith by Smith's safety complaints and his threat to take those complaints
to MSHA. 12 FMSHRC 2136. The judge went on to find that Halcomb's
discriminatory conduct included giving "a distorted factual account" of the
July 15, 1989, argument to Cox "with the intention or expectation of
influencing the superintendent to discharge [Smith]." Id. The critical
elements of what the judge deemed Halcomb's "distorted account" to Cox were:
(1) that, knowing Cox to be a practicing pastor, Halcomb told him that Smith
had used a religious epithet; (2) that Halcomb failed to tell Cox that Smith
immediately apologized; (3) that Halcomb told Cox that Smith swore at him in
front of the crew; and (4) that Halcomb failed to inform Cox that Smith had
threatened to take his complaint to MSHA.
In his decision the judge concludes that Cox, as a practicing pastor,
would have been offended if the epithet Smith used was religious in nature
and if it was said in front of other members of the crew. 12 FMSHRC 2136.
"Halcomb was aware of, or could reasonably expect, the superintendent/
minister's sensitivity to profane language and his philosophy of supporting
his supervisors." 12 FMSHRC at 1233. Aside from Cox's statement that he
doesn't "use that kind of language" and that Smith had "no right to call a
man those kind of names," (Tr. 71) Cox's testimony and other record evidence
do not suggest any special susceptibility to Halcomb's alleged intrigue

owing to the superintendent's status as a "practicing pastor." While Cox's
demeanor on the witness stand might have indicated a hypersensitivity to
what might otherwise be considered garden variety discourse in the mining
environment, the judge does not indicate that in his decision.
The judge's conclusions with respect to the motivations and conduct of
Halcomb appear to be based upon certain credibility determinations and a
series of inferences drawn from the evidence. It is clear that the judge
believed the testimony of Smith and disbelieved the testimony of Halcomb and
Miller with respect to the coal stacker incident, and that he believed Smith
and disbelieved Halcomb on all disputed points thereafter. Kem Coal
concedes that it is within the discretion of the trial judge to make such
credibility determinations, and the Commission has held that a judge's
~72
credibility resolutions cannot be overturned lightly. Robinette, supra,
3 FMSHRC at 813; Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629-30
(November 1986). As for the inferences drawn by the judge, we have held
that such inferences "are permissible provided they are inherently
reasonable and there is a logical and rational connection between the
evidentiary facts and the ultimate fact inferred." Secretary v. Mid-
Continent Resources, Inc., 6 FMSHRC 1132, 1134 (May 1984).
The confounding factor on review, however, and one vigorously argued
by Kem Coal, is that the judge implicitly believed the testimony of Cox even
though in some aspects it supports Halcomb's testimony while contradicting
Smith's testimony. In other words, while the issues on review do not
concern the credibility determinations made by the judge in evaluating the
testimony of Smith versus Halcomb, they do concern the testimony of Smith
when viewed against certain contradictory statements of Cox. It is neither
appropriate nor possible for an appellate body to resolve such conflicts.
Accordingly, we remand the matter to the judge for further credibility
findings and for analysis and explanation of the bases for his ultimate
conclusions regarding the nexus between Smith's protected activity and his
discharge by Kem Coal. In particular, we direct the judge to set forth the
evidentiary bases for the first three elements of Halcomb's "distorted
account," set forth above.(Footnote 2)
First, with respect to the allegedly blasphemous component of the
epithet directed at Halcomb by Smith, the judge concluded that Halcomb
deceived Cox in that regard. Cox testified, however, that he specifically
asked Smith whether he had called Halcomb "those names," and that he used
the initials, "G.D. lying S.O.B.," in asking the question. Tr. 71-72.
According to Cox, Smith admitted using those words. Id. As indicated
above, however, (n.1), Smith denied using "G.D." Second, as to whether
Smith immediately apologized to Halcomb for swearing at him, while the judge
credited the testimony of Smith that an apology was made, the judge does not
reconcile Smith's testimony that he had told Cox of the apology (Tr. 36)
with Cox's testimony that he was not told by either Halcomb or Smith that

Smith had immediately apologized. Tr. 63. Third, there are unresolved
ambiguities in the record as to how Cox arrived at the mistaken belief that
Smith swore at Halcomb in the presence of other members of Halcomb's crew.
The judge needs to explain the basis for his conclusion that "[t]he account
that Halcomb gave Cox ... [that] Complainant cursed him in front of the crew
... was inaccurate" (12 FMSHRC at 2133).
Both Smith and Halcomb testified before the judge that they were alone
when the swearing took place. Tr. 34, 120. Smith's testimony makes clear
that he told Cox that his (Smith's) brother was not present (Tr. 28), but it
does not indicate any conversation with Cox regarding the presence of

2 There appears to be no question as to the fourth element listed above,
Halcomb's failure to inform Cox that Smith had threatened to take his
complaint to MSHA. Cox testified that he was not told that Smith had made
such a statement (Tr. 48) and Halcomb admitted that he "[didn't] think" he
relayed that information to Cox. Tr. 96.
~73
others. Nor does Halcomb's testimony indicate that he discussed the
presence of witnesses with Cox.
The only testimony from Cox as to the source of his belief that the
crew members were present during the swearing is as follows:
Q. (By Mr. Endicott, counsel for Complainant) You went
under the opinion that this argument that transpired
between [Smith] and [Halcomb], when the words were
spoken, there were other people present at the time?
A. (By Mr. Cox) Yes, sir.
Q. Is that what [Halcomb] told you?
A. Later on, other people came to me and
rehearsed to me the seriousness of the
situation, yes.
Q. What other people would that be?
A. One boy by the name of Bryan Collins.
Bryan had -- the argument had gotten
kind of out of hand and Bryan said he
just got up and left, he knew it was
getting bad. And -- well, he's the only
one that knew of it, first hand, I
think. I don't think anybody else was
present.
Q. But he got up and left at that, didn't
he, Bryan did?
A. Yes, after the words. Yes.
Q. After or before, are you sure?
A. I think he heard -- actually heard the
words spoken from what he told me now.

Tr. 63-64.
Just before the above testimony, Cox stated that prior to discharging
Smith, he had not spoken to anyone but Halcomb and his (Cox's) own
supervisors. Tr. 63. Cox's testimony is ambiguous as to how he came to
believe that Smith had "called [Halcomb] these names in front of [Halcomb's]
people." Tr. 63. Cox's misapprehension of the facts as to who was present
when the swearing took place admits of several possible explanations, e.g.,
Cox's recollection at trial was hazy; Cox's testimony on the issue was
purposely evasive; Cox, having been told by both Smith and Halcomb that
others were present when the argument began, mistakenly assumed that some
crew members were still present when the swearing took place; or, as the
~74
judge concluded, Cox was deceived by Halcomb into thinking there were
witnesses to the swearing. While we do not second-guess the judge as to the
most plausible explanation for Cox's mistaken belief regarding the presence
of witnesses to the swearing incident, it is necessary for purposes of
"meaningful review" to know the reasons or bases for the judge's conclusion
on this critical issue. Secretary v. Anaconda Company, 3 FMSHRC 299, 300
(February 1981).
Reconciling the ambiguities surrounding this issue is important
because of Cox's frank admission elsewhere in the record that while the
swearing was "still insubordinate ... if it had been a personal thing, just
between [Smith] and [Halcomb], it could have probably been resolved, yes."
Tr. 65. Resolving these ambiguities is a necessary prerequisite to an
evaluation of Kem Coal's claims that it rebutted Smith's prima facie case
or, in the alternative, that it affirmatively defended against the prima
facie case by establishing that it would have discharged Smith, in any
event, for his unprotected activity alone, i.e., his insubordinate swearing
at Halcomb. We note that the judge did not expressly address the
affirmative defense issue in his decision.
We find that the judge's failure to reconcile critical differences in
the testimony of Smith and Cox and the lack of a clear connection between
the evidence in the record and certain inferences drawn by the judge as to
Halcomb's conduct preclude our meaningful review of the judge's conclusion
that Smith was discriminated against in violation of the Act. Accordingly,
we direct the judge to resolve the factual issues we have raised and then to
determine anew, by applying the Pasula/Robinette test, whether Smith has
established a prima facie case of discrimination. If the judge so finds, he
should then determine whether Kem Coal has rebutted that case, or has
affirmatively defended against it by demonstrating that it would have
discharged Smith, in any event, for his unprotected activity alone.
~75
Accordingly, we vacate the judge's decision and remand the matter for
further consideration in light of the questions raised in this decision.
Ford B. Ford, Chairman

Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner