CBM Mining, Inc., Roy F. Collier and James H. Booth

Plain-English summary

Roy Lee Stroud brought a discrimination complaint under Section 105(c) of the Mine Act against CBM Mining, Inc., Roy F. Collier, and James H. Booth. The complaint concerned an alleged adverse action after Stroud filed a discrimination complaint with MSHA. Judge Roy J. Maurer found that Collier's physical assault of Stroud was motivated by longstanding personal animosity and would have occurred regardless of the protected complaint. The judge found no credible evidence that Booth participated in the assault, dismissed the complaint, and denied the requested relief.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed and the claims for relief were denied.
• Key point: The judge found the adverse action would have occurred because of unprotected personal conflict, not because of the protected activity.

Full text (FMSHRC public release)

CCASE:
ROY LEE STROUD V. CBM MINING
DDATE:
19921023
TTEXT:

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ROY LEE STROUD, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. KENT 91-986-D
:
CBM MINING, INC., : PIKE CD 91-09
ROY F. COLLIER AND :
JAMES H. BOOTH, : No. 2 Mine
Respondents :

                            DECISION

Appearances: Tony Oppegard, Esq., Appalachian Research & Defense
Fund of Kentucky, Inc., Lexington, Kentucky, for
Complainant;
Michael J. Schmitt, Esq., Wells, Porter, Schmitt
& Walker, Paintsville, Kentucky, for Respondent.

Before: Judge Maurer

 This proceeding concerns a discrimination complaint, as

presently amended, filed by the complainant, Roy Lee Stroud,
against the corporate respondent, CBM Mining, Inc. (CBM), and the
individual respondents, Roy F. Collier and James H. Booth, who
are both part-owners and corporate officials of CBM, pursuant to
section 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq. (the "Act").

 Pursuant to notice, a hearing was conducted in Paintsville,

Kentucky, on April 15-16, 1992. Subsequently, both parties filed
post-hearing briefs and/or proposed findings and conclusions,
which I have considered along with the entire record of
proceedings in this case in making the following decision.

            FINDINGS OF FACT AND CONCLUSIONS OF LAW

 1. Complainant, Roy Lee Stroud, is the brother-in-law of

respondent, Roy F. Collier. Collier is married to Stroud's
sister, Patricia.

 2. Over the previous several years, going back to at least

1986, Stroud had sought employment at one or the other of
Collier's businesses to no avail. They had a very poor personal
and family relationship and Collier absolutely did not like
Stroud for a variety of personal reasons. The record reflects a
long history of animosity between them. However, Collier's wife,

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Patricia, wanted him to give her brother a job, so at one point
he finally gave his approval for Stroud to work for CBM and he
was subsequently hired as a belt shoveler at $8.00 per hour.

 3. His career at CBM was short-lived, however. Stroud's

first day of work was January 29, 1991. He worked 8 hours that
day. The next day, January 30, 1991, he worked 2 hours and
walked off the job over a dispute with the mine superintendent
about his rate of pay. The superintendent had erroneously told
him that his rate of pay was going to be $6.00 per hour. When
Collier learned of this later, and was teased about it, he became
quite upset and threatened to whip Stroud the next time he saw
him.

 4. On February 5, 1991, Stroud filed a complaint of

discrimination with MSHA, falsely alleging that he had been fired
from his job as a beltline shoveler, by Superintendent Tommy
Rouse on January 31, 1991, ostensibly because he had complained
to Rouse about his smoking underground.

 5. MSHA mailed two separate copies of Stroud's

discrimination complaint to CBM on February 5, 1991, each with a
cover letter informing the company that a discrimination
complaint under section 105(c) of the Mine Act had been filed
against it. One of the letters was addressed to Booth
(Complainant's Exhibit No. 3); the other letter was addressed to
Rouse (Complainant's Exhibit No. 4). The complaints were both
received by the company on February 7, 1991.

 6. Even though Collier and Booth claim not to have known

about this section 105(c) complaint until sometime later, the
circumstantial evidence is strong that both Collier and Booth
knew that Stroud had filed a section 105(c) complaint with MSHA
on or about February 7, 1991, and in any event before the assault
actually took place on February 8, 1991 (See Finding and
Conclusion No. 8, infra). In accordance with the preponderance
of that evidence I find that all the respondents did have
knowledge that Stroud had engaged in protected activity, i.e.,
filed a section 105(c) complaint, prior to the adverse action
that was taken against him.

 7. In the days between January 30, 1991 and February 8,

1991, Collier was becoming still angrier with Stroud because he
would stop by the mine office frequently trying to pick up his
paycheck for the 10 hours pay he had coming. The regular payday
was not until February 15, 1991, but Stroud continued to stop in
the office seeking his check. Collier had asked one of the
clerks there, Gladys Parsons, to notify him the next time Stroud
came into the office.

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8. On February 8, 1991, Stroud once again was on his way to
the mine office to check on his paycheck. On his way to the
office, Stroud drove by Collier's home in nearby Beauty,
Kentucky. When Stroud passed Collier's home around noon, Collier
was standing outside talking with Booth. Collier and Booth saw
him and followed him to the mine office, arriving separately, but
simultaneously a few minutes later. Collier told Booth to clear
the female employees out of the front office and he picked up an
l8-inch long piece of hydraulic hose and went into the office
after Stroud. Booth did as he was requested. Collier then
entered the office and started whipping Stroud with the hydraulic
hose. He struck him multiple blows on the head and back while
Stroud attempted to fend off the blows. Booth did not
participate in the assault.

 9. Prior to February 8, 1991, Booth and Stroud had no

personal relationship whatsoever; and I find no credible evidence
in this record to prove that Booth participated in the assault on
Stroud. The only evidence to that effect comes from Stroud
himself, whose credibility approaches zero. The mere fact that
Booth was present in the office and did not come to the aid of
Stroud or try to stop Collier does not amount to taking adverse
action against Stroud on the part of Booth. Therefore, I am
ordering dismissal of Stroud's complaint against Booth on this
basis alone.

10. On February 8, 1991, after being examined at a hospital

for the injuries he received during the assault, Stroud notified
MSHA by telephone of the assault. MSHA thereafter investigated
Stroud's assault claim as part of his previously filed
discrimination case.

11. On April 3, 1991, MSHA issued its determination that in

its opinion, a violation of section 105(c) had not occurred.
Stroud then filed a pro se complaint with the Commission alleging
that he had been discharged by CBM for reporting safety
violations and that he had also been "beaten by officials of the
company" after reporting safety violations to the Department of
Labor, meaning the original discrimination compliant filed with
MSHA.

12. On October 22, 1991, I granted Stroud's motion to amend

his pro se complaint. By this time he was represented by
counsel. Stroud's amended complaint dropped his claim that he
had been discharged by CBM in violation of section 105(c) of the
Mine Act, but retained the claim that he had been assaulted by
officials of the company because of the filing of his original
discrimination complaint with MSHA. In addition, the amended
complaint added Collier and Booth as individual respondents,
based on Stroud's allegation that Collier and Booth assaulted him
on February 8, 1991.

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DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS

 The general principles governing analysis of discrimination

cases under the Mine act are well settled. In order to establish
a prima facie case of discrimination under section 105(c) of the
Act, a complaining miner bears the burden of production and proof
in establishing that (l) he engaged in protected activity and
(2) the adverse action complained of was motivated in any part by
that protected activity. Secretary on behalf of 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 on behalf of
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 in no part motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone. Pasula, supra; Robinette, supra. See also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642, (4th Cir.
1987); 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). Cf. NLRB v. Transportation Management Corp.,
462 U.S. 393, 397-413 (1983) (approving nearly identical test
under National Labor Relations Act).

 There is no doubt that Stroud engaged in protected activity

in this instance. The mere filing of a discrimination complaint
under section 105(c) of the Mine Act constitutes protected
activity. And that is so even if that complaint contains
allegations which are known to be false by the complainant at the
time he makes them. There is also no doubt that adverse action
in the form of a physical assault on the person of Stroud was
taken by Collier on February 8, 1991, some 3 days after he filed
that discrimination complaint. Furthermore, the preponderance of
the circumstantial evidence is clearly to the effect that
Collier's assault on Stroud was motivated at least in part by
complainant's filing of the discrimination complaint with MSHA.
The coincidence in time alone is enough to convince me that the
two events are related.

 Collier has, however, raised an affirmative defense in this

case. He maintains that he was motivated to assault the
complainant by his unprotected activity and in fact assaulted him
for that reason alone. But since I have already determined above
that he was motivated at least in part by Stroud's protected
activity, he then urges that this is a mixed motivation case and
that he would have taken the adverse action in any event for
Stroud's unprotected activity alone.

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There is certainly more than adequate evidence in this
record of trial that there have been hostile feelings both ways
between Stroud and Collier for years prior to this assault at
bar. They have been on the threshold of coming to blows on
several prior occasions. The police have been called on one
occasion. There is jealousy on the part of Stroud over Collier's
material possessions. There is disdain on the part of Collier
towards Stroud because he perceives him to be a ne'er-do-well,
dependent on the charity of his family, most particularly when it
involves his own wife, Patricia. The fact that Collier for years
would not give him a job in one of his many businesses grated on
Stroud. Then when Collier finally relented and gave him a job,
he only lasted 2 hours into the second day before he quit. That
embarrassed and grated on Collier, especially when others teased
him about it, as did State Mine Inspector Sexton at the CBM Mine
Office the same day that Stroud quit. Collier at that time
already promised to whip Stroud the next time he saw him. Stroud
continued to aggravate the situation by frequently stopping by
the mine office trying to pick up his paycheck for the short time
that he did work. Collier perceived this as harassment of his
clerical help. Finally, he received word somehow, I am quite
sure, that Stroud had filed the discrimination complaint with
MSHA.

 It is difficult in this case to determine at what exact

point Collier was pushed to his limit and formed the intent to
perpetrate the assault on Stroud. It does not help that there is
little in the way of credible evidence contained in this lengthy
record from the principals involved. I find the credibility of
Stroud, Collier, and Booth to be tainted by inconsistent and
illogical testimony. And the testimony of the supporting
witnesses, which primarily consists of various members of the
Stroud family, is mostly in direct conflict depending on which
side that particular witness supports. The Stroud family
siblings are split over whether they are on the side of Collier
and his wife, Patricia, or Stroud and his wife, Rose.

 This is basically a domestic relations case that wound up

before this Commission simply because a coal mine was
peripherally involved as the situs of employment of the
complainant. The case has nothing to do with mine safety or
health issues. The incident giving rise to the case could just
as easily have played out in one of Collier's gas stations.
Perhaps more appropriately, there is also concurrently a civil
tort action pending in state court in Kentucky for damages as a
result of the admitted assault.

 After reviewing the evidence once again and considering the

arguments of the parties, I find that the assault on Stroud by
Collier was based upon long-standing personal animosity between
the two men, and would have taken place with or without Stroud
filing the discrimination complaint. Accordingly, I find that

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Collier would have taken the adverse action complained of herein
because of the unprotected activity of the complainant, Stroud,
alone.
ORDER

 In view of the foregoing findings and conclusions, and on

the basis of a preponderance of all the credible testimony and
evidence adduced in this case, I conclude and find that the
complainant has failed to establish a violation of section 105(c)
of the Act. Accordingly, his complaint IS DISMISSED, and his
claims for relief ARE DENIED.

                            Roy J. Maurer
                            Administrative Law Judge

Distribution:

Tony Oppegard, Esq., Mine Safety Project, Appalachian Research &
Defense Fund of Kentucky, Inc., 630 Maxwelton Court, Lexington,
KY 40508 (Certified Mail)

Michael J. Schmitt, Esq., Wells, Porter, Schmitt & Walker,
327 Main Street, P. O. Box 1179, Paintsville, KY 41240-5179
(Certified Mail)

dcp