Aero Energy, Incorporated

Plain-English summary

Major Tony Thompson alleged that Aero Energy dismissed or sidelined him after he reported methane concerns and spoke with MSHA inspectors. The judge credited the operator's evidence that Thompson's actions were motivated by performance and conduct concerns rather than protected Mine Act activity. The judge found that the discrimination claim was not proved and dismissed the proceeding.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815(c); 29 C.F.R. § 2700.66
• Outcome: The discrimination proceeding was dismissed.
• Key point: The judge found that the adverse action was motivated by unprotected performance concerns, not protected safety activity.

Full text (FMSHRC public release)

[DOCID: f:k941191d.wais]

AERO ENERGY, INCORPORATED
May 10, 1996
KENT 94-1191-D

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, 10th FLOOR
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041


                      May 10, 1996

MAJOR TONY THOMPSON, : DISCRIMINATION PROCEEDING
Complainant :
:
v. : Docket No. KENT 94-1191-D
: PIKE CD 94-13
AERO ENERGY, INCORPORATED, :
Respondent : Mine No. 1

                        DECISION

Appearances: Herbert Deskins, Jr., Greg Bentley,and Robert Wright, Esqs.,
Pikeville, Kentucky, for the Complainant; Michael Heenan, Esq.;
William I. Althen, Esq.,Smith, Heenan, and Althen, Washington, D.C.,
for the Respondent.

Before: Judge Weisberger

                  Statement of the Case

 This case is before me based upon a Complaint filed by Major

Tony Thompson alleging that he was discriminated against by Aero
Energy Incorporated (Aero) in violation of Section 105 of the
Federal Mine Safety and Health Act of 1977 (The Act). Pursuant
to notice, the case was heard in Louisa, Kentucky
on January 29 and 30, 1996.[1]

             Findings of Fact and Discussion

 I.  Complainant's Case

 A.  Complainant's Work History at Aero

 Aero operates the Aero Energy Mine No. 1, an underground
 coal mine, which it had acquired in March 1989.  In March
 1989, Major Tony Thompson was hired as mine superintendent
 by Rex Fought, Aero's President, for whom he had previously
 worked.  Fought made Thompson responsible for the overall
 operation of the mine.  Once the mine became operational,
 production increased, production per man hour increased, and
 miners were given bonuses based on increased production
 usually three to four times a week.  Thompson also received
 production bonuses through the end of 1993, and received a
 Christmas bonus in 1993.  He received increases in salary
 during the term of his employment with Aero.

 B.  Complainant's Activities and Aero's Responses

 According to Thompson, in August 1989, he reported to Fought
 a methane reading of between four and six percent.  Fought
 told him to "be sure that I don't put it in the book because
 it was over two percent" (Tr. 30).  Thompson indicated that
 in September 1995, Fought was very upset at a withdrawal
 order issued by an MSHA inspector who had found methane.

 On November 3, 1993, Thompson indicated that he learned that
 a methane reading of seven to nine percent had been found in
 the old works of the mine, which was not an active section.
 Thompson said that he notified Fought who told him to be
 sure not to report it.  According to Thompson, on November
 4, he was informed by a belt attendant, Harold Baisden, that
 he had overheard the fireboss, Bob Boyd, report a methane
 reading of between seven to nine percent in the old works.
 Thompson then went underground, and testing by him indicated
 a methane reading of one and a half percent.  Thompson then
 reported to Fought and told him that the methane reading
 should be reported in the preshift book, and Fought told him
 not to report it.

 On November 5, Thompson talked to MSHA inspector Arlie Webb.
 On November 8, 1993, the site was inspected by MSHA
 inspectors but no citations were issued for any methane
 accumulations.

 On November 9, 1993, five MSHA inspectors inspected the site
 to check for methane.  The inspectors reported that they had
 received a complaint about methane in the old works.
 Thompson testified that at approximately 12:30 p.m., he had
 a conversation with Fought, and told him that he thought
 that the inspectors were present because of a complaint.  At
 about 3:30 in the afternoon, in Thompson's office, Fought
 informed him that there was reason to believe that he
 (Thompson) had called the inspectors.  According to
 Thompson, Fought informed him that he talked to the foremen,
 and they did not trust him "for calling the inspectors" (Tr.
 75).  Thompson stated that he informed Fought that he had
 not called the inspectors.  According to Thompson, Fought
 told him that the foremen could not trust him anymore, and
 that he was going to have to let him go "for calling the
 inspectors" (Tr. 76).  Thompson maintained that the methane
 problems that had been observed on November 3 and 4, were
 taken care of shortly after the methane had been discovered
 by shifting the ventilation in the area, and accordingly,
 there was no need to call the inspectors on November 8 and
 November 9.  Thompson indicated that Fought told him that he
 was going to send him home until he had time to investigate.
 According to Thompson, Fought told him to take the rest of
 the week off.  Thompson stated that he thought that Fought
 was sending him home because he had called the inspectors.

 On Tuesday November 16, at 6:00 p.m., Thompson returned to
 the mine, and Fought informed him that he was still investi-
 gating, and trying to find out if he (Thompson) had called
 the inspectors, and that he (Fought) would get back to him.
 Between November 16, 1993, and January 7, 1994, Thompson
 tried to call Fought eight or nine times, and talked to him
 three four times.

 On January 7, 1994, Thompson received a letter from Fought.
 In the letter, Fought indicated that he had discussions with
 Thompson concerning Thompson's job performance, lack of
 interest, and lack of commitment to the job.  The letter
 further accused Thompson of having "a major problem of
 substance abuse." On January 10, 1994, Thompson confronted
 Mr. Fought about the letter, and Fought insisted on him
 undergoing drug rehabilitation.  Thompson refused because
 he maintained that he had no drug problem.

 It was Thompson's testimony that prior to November 9, he had
 never been reprimanded or suspended by Fought.  Nor did
 Fought indicate that he was dissatisfied with his work.
 Thompson maintained that he had not been insubordinate to
 Fought.  Thompson indicated that prior to receipt of
 Fought's letter on January 7, Fought had never discussed
 with him his lack of commitment.  According to Thompson,
 Fought had never told him that his job was suffering because
 of drug abuse, and that Fought had never suggested that he
 take any drug test.  Thompson indicated that prior to
 November 9, 1993, he underwent drug testing on one occasion,
 and it was negative.  According to Thompson, he was never
 arrested for drugs or alcohol, and has never had a substance
 abuse problem.  He also maintained that there were no
 problems with morale at the site.

 According to Thompson, he had a good relationship with
 Fought through November 1993.  He was not reprimanded by him
 during that time and followed whatever Fought told him to
 do.  According to Thompson, he saw his foremen daily, and
 had safety talks with them weekly.  Thompson stated that he
 never refused to go underground at the request of Fought, or
 at a foreman's request.

 Walter Thomas Kirk, a miner employed by Double Construction
 Company, (Double C), to work at the subject mine as a
 general laborer, testified for Complainant.  Kirk, who is a
 personal friend of Thompson, indicated that on November 9,
 1993, at approximately 3:45 in the afternoon, he was walking
 toward Thompson's office and the door was open.[2]  Kirk
 indicated that no one else was in the area.  According to Kirk,
 he was six to eight feet away from the door, and overheard a
 conversation between Thompson and Fought that was "pretty
 loud" (Tr. 104).  Kirk testified that he heard Fought say as
 follows: "Tony you know we had eight and nine percent
 methane, and you had no right to call the federal men or
 inspectors in at no time" (Tr. 105).  According to Kirk,
 Thompson said that he did not call the inspectors, and
 Fought said "I have reason to believe you called them Tony
 and I'm going to have to let you go" (Tr. 105).

 According to Kirk, about a week and a half or two weeks
 later, Fought met with all first and second shift employees
 in the shower house.  Kirk indicated that Fought was "in an
 outrage," and stated that "[t]hese rumors going around is
 going to stop.  Now, I don't know who is spreading them but
 they're going to stop and whoever spread this rumor about
 methane, they ain't no methane up there.  And another thing
 . . . it's none of your god dam business . . . If this don't
 stop, I will fire every one of you . . . " (Tr. 107).

 II.  Respondent's Case

 Fought indicated that sometime toward the end of the winter
 of 1993, he began to get concerned about Thompson, as he did
 not feel that Thompson was communicating as much as he had
 done in the past.  Fought indicated that John Ratliff, a
 shift foreman, and Steven Cordial, the maintenance chief,
 commented to him that Thompson was not helping them as much
 as he used to.  According to Fought, there was general talk
 in the mine that Thompson was not going underground to help
 out.  Fought indicated that in the last two or three months
 prior to November 1993, he felt that Thompson was "ignoring
 some things I would tell him or finding excuses not to do
 them" (Tr. 140).

 Fought stated that Thompson was authorized to order
 materials.  He was responsible for checking invoices in the
 bookkeeping office in order to see if Aero was being
 properly charged.  Fought stated that Thompson had stopped
 checking the invoices, and had to be reminded to do this
 task.  He also indicated that Thompson was no longer getting
 to work prior to the commencement of the shift, as he had
 been doing for the last couple of years.

 Fought stated that sometime in the late summer or early fall
 1993, Cordial informed him that occasionally it appeared as
 if Thompson was under the influence of some substance.
 According to Fought, on three occasions between the early
 summer of 1993 and November 9, 1993, Thompson was listless,
 and exhibited slurred speech, and uncoordinated movements.
 In the summer of 1993, on one occasion, Fought sent Thompson
 home because he had placed his head on the desk, and his
 speech was slurred.

 According to Fought, in August 1993, he spoke to Thompson
 and told him that he did not seem to be going underground as
 much as he should, that supplies were disappearing, and that
 it appeared that, in general, he had lost interest.
 According to Fought, he asked Thompson whether he realized
 that mine personnel were of the opinion that he was taking
 drugs.  According to Fought, sometime around October 1993,
 he had the same conver- versation with Thompson who
 responded that he did not see what the problem was, and that
 he was doing a good job.  Fought testified that on the first
 Wednesday in November, he told Thompson as follows:  "[i]f
 you don't do another thing tomorrow, go to the office and
 okay your invoices" (sic) (Tr. 155).  According to Fought,
 Thompson did not work the next day.  Fought indicated that
 two days later he told Thompson that he "wasn't going to put
 up with it anymore," and that Thompson should take off the
 next week and think about it, "and then when he came back,
 see if we could figure out someway that we both could stay
 there and work together" (Tr. 156).  The following Monday
 when Fought called the mine, Thompson answered the
 telephone.  Fought concluded that Thompson had ignored him
 by coming to work.

 According to Fought, on November 9, at approximately 4:30 in
 the afternoon, he and Thompson had the same conversation
 they had on the previous Friday.  According to Fought,
 Thompson told him that the inspectors had come to the mine
 because there was a complaint about methane.  Thompson said
 that he thought he was doing a good job.  Fought indicated
 that he told Thompson that he was not satisfied, and that
 Thompson must satisfy him before he could come back.  Fought
 indicated that he did not think that Thompson could work at
 the mine anymore.  Fought indicated that he told Thompson to
 go home and to think about what they had talked about, and
 to see if he could conclude that there was a problem.Fought
 did not make a notation in Thompson's personnel file
 concerning the conversation he had with him about his "bad
 performance" (Tr. 180).  He could not remember any specific
 problem that Thompson "didn't help them or look at" (Tr.
 197).

 Fought said that he did not discuss methane at a meeting
 with all personnel subsequent to November 9.  Instead, he
 told the assembled personnel that he wanted to stop the
 rumors as to why Thompson was no longer at the mine.
 According to Fought, he told them that Thompson was off on
 personal leave.

 Fought indicated that on or about January 7, 1994, he sent
 Thompson a disciplinary letter, (Defendant's Ex. 5) because
 he needed to bring the matter to an end.

 Fought maintained that it is not true that he told Thompson
 not to report methane.  Fought said that on November 3, and
 November 4, 1993, Thompson had not complained to him about
 methane.  He also indicated that he did not receive any
 report that the fireboss, Boyd, had found methane in the
 explosive range or at three, four, or five percent.  Fought
 stated that it is not true that he told Thompson not to put
 methane readings more than two percent in the preshift book.
 He indicated that there was no problem controlling methane
 in the mine.

  On cross-examination it was elicited that Fought never saw
 Thompson take drugs, and did not ask whether anyone else saw
 him take drugs.  Fought also indicated that he had never
 smelled alcohol on Thompson's breath.

 John Ratliff, who was the day shift mine foreman for the
 period in question, stated that in 1992, Thompson went
 underground every two to three weeks.  Ratliff indicated
 that in the last six months prior to November 1993, Thompson
 went underground only one time.  Ratliff indicated that he would
 have benefited from more underground visits by Thompson, as
 there were matters that could have been resolved more
 efficiently had the latter gone underground and observed the
 situation.  He noted that in 1993, Thompson stopped asking
 about what was going on in the mine.  According to Ratliff,
 Thompson's speech was slurred, he stayed in the office by
 himself a lot, and took no interest in the mine.  Ratliff
 said that five or six miners told him that they thought that
 Thompson was on dope or drugs.  Ratliff also noted that
 morale was down, and that in general his relations with
 Thompson had deteriorated.

 According to Ratliff, on November 8, at approximately
 8:00 a.m., Thompson told him as follows: "John, there's all
 kind of talk on the bottom about a high methane build up in
 the old works . . . You know they'd be all kinds of
 inspectors here before the day's out" (sic)(Tr. 230-231).
 He indicated that Thompson kicked the wall and a chair, and
 slapped the wall.

 Ratliff corroborated Fought's version of the meeting that
 was held in the shower house sometime after November 9.

 According to Boyd, testing at the old works on November 4,
 indicated a methane reading of nine-tenths of one percent
 which he entered in the preshift examination book.  He said
 that methane had not been found at that site before.  Boyd
 indicated that no one told him not to report methane, and no
 one told him not to enter any methane readings.  He
 corroborated Fought's version of the meeting held with the
 miners after Thompson had left the mine.

 Cordial indicated that he told Fought that Thompson showed
 favoritism, and that some men were resentful and thinking of
 quitting.  He indicated that when he started to work at the
 mine in 1991, Thompson was going underground four to five
 times a week, "[a]nd it would be probably ninety percent of
 the time he was underground." (Tr. 347)  Cordial indicated
 that starting around March 1993, Thompson "wasn't going
 underground as much" (Tr. 347).  According to Cordial,
 miners made comments to him as follows:  "Tony's on his
 stuff today." (Tr.348)  According to Cordial, on several
 occasions, Thompson evidenced slurred speech, and "would
 seem either completely down or really hyper" (Tr.348).
 Cordial indicated that he discussed these problems with
 Fought in October or September 1993, and the latter was
 "really concerned about it" (Tr. 349).

 Cordial also corroborated Fought's version of the meeting in
 the shower room.

 III.  Analysis

 The principles governing analysis of a discrimination case
 under the Mine Act are well established.  A miner
 establishes a prima facie case of prohibited discrimination
 by proving that he engaged in protected activity and that
 the adverse action complained of was motivated in any part
 by that 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 (3d Cir. 1981); Secretary on
 behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803,
 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.  Pasula, 2 FMSHRC at 2799-2800.  If the
 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, 2 FMSHRC at 2800;
 Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal
 Corporation, v. United Castle Coal Co., 813 F.2d 639, 642
 (4th Cir. 1987).

 A.  Protected Activities

 At a minimum, Thompson engaged in protected activities when
 he spoke to an inspector on the evening of November 5, 1993.
 The actions that he took in response to reports of various
 methane readings, and his comments to Fought that excessive
 methane readings should be recorded in the preshift reports
 are all protected.

 B.  Motivation

 According to Thompson, he was sent home by Fought on
 November 9, because Fought thought he had complained to MSHA
 inspectors about methane at the mine, and had requested an
 inspection which resulted in the inspection on December 8
 and 9.

 In Thompson's version of relevant events, Fought (1) never
 expressed any dissatisfaction with his work prior to March
 9; (2) manifested an animus toward his activities in
 reporting methane findings, and (3) told him expressly on
 November 9, that he was being let go "for calling the
 inspectors" (Tr. 76).  I find Thompson's version to be
 without merit for the reasons that follow.

      1.  Thompson's Performance Prior to November 9

 Fought was generally satisfied with Thompson's work until
 about six months prior to November 1993.  He increased his
 salary, and had given him bonuses based upon production.
 According to Thompson, he had never been reprimanded by
 Fought prior to November 9, and Fought had never expressed
 any dissatisfaction with his work.

 On the other hand, Fought referred to four specific
 instances prior to November 9, 1993, wherein he expressed
 dissatisfaction with various aspects of Thompson's work.[3]
 It is significant that Thompson did not testify on rebuttal
 to rebut or contradict this specific testimony.  Therefore,
 I accept Fought's testimony in these regards.

 In general, Fought's version that he had been dissatisfied
 with Thompson prior to November 9, as the latter had
 exhibited various behavioral problems, is corroborated by
 Ratliff, and Cordial, who noted that Thompson exhibited
 slurred speech, and
 in his last six months at the mine, did not go underground
 as frequently as he had in the past.  In this connection,
 Thompson did not rebut Fought's testimony that in the summer
 of 1983 he had suggested to Thompson to go home because he
 was exhibiting slurred speech, and had placed his head on
 the desk, and the former complied.  For these reasons, I
 accept Fought's version.

      2.  Fought's Animus Regarding Reports of Methane

        According to Thompson, in September 1989, after an
      MSHA inspector issued a withdrawal order based upon
      finding the presence of methane, Fought was "very
      upset" and "very irate" (Tr. 34).  Fought did not rebut
      or impeach this testimony.  According to Thompson, when
      he reported to Fought methane readings in excess of two
      percent in August 1989, November 3,
      and November 4, Fought told him not to enter the
      findings in the preshift examination books.  On the
      other hand, Fought denied that he had told Thompson not
      to report methane, and not to put methane readings more
      than two percent in the examination book.  Fought also
      indicated that Thompson did not report to him that Boyd
      had found methane in an explosive range, or more than
      three percent.  I observed the witnesses' demeanor, and
      found Fought to be more credible in these regards.

        I also find that Fought's version finds corroboration
      in the testimony of Boyd that no one told him not to
      report methane findings, and not to enter methane
      readings.  Indeed the  examination book indicates that
      methane readings were noted by Boyd (Defendant's Ex.
      4).

      3.   The November 9 Conversation Between Fought and
           Thompson

 According to Thompson, on November 9, the date of the MSHA

inspection of the mine, Fought told him he was going to let him
go "for calling the inspectors" (Tr. 76). In support of his
version, Thompson offered the testimony of Kirk. Kirk testified
that at 3:45 p.m., on November 9, he overheard Fought telling
Thompson that he was going to let him go because he had called
the inspectors.

 I discount Kirk's testimony.  Based upon my observations of
 his demeanor, I find Fought the more credible witness.  I
 also note that records kept by Kirk's employer in the
 ordinary course of business indicate that Kirk did not work
 in the mine on November 9.

 Further, since I find more credible Fought's version of
 Thompson's work history prior to November 9, (See,
 (I)(C)(2)(b) infra,), it follows that Fought's version of
 the November 9 conversation is more credible.  I therefore
 accept Fought's testimony that on November 9, he expressed
 his dissatisfaction with Thompson, and told him to go home
 to think about their conversation, and to acknowledge there
 were problems.

 For all the above reasons, I conclude that Fought's actions
 in sending Thompson home on November 9, and sending him a
 disciplinary letter (Defendant's Ex. 5) were motivated
 solely by Thompson's unprotected activities which Fought was
 dissatisfied with.  I thus find that Thompson has failed to
 establish that he was discriminated against in violation of
 Section 105(c) of the Act.

                          ORDER

 It is ORDERED that this case be DISMISSED.






                               Avram Weisberger
                               Administrative Law Judge

Distribution:

Herbert Deskins, Jr., Esq., P.O. Box 1199, 105 � Division Street,
Pikeville, KY 41501 (Certified Mail)

Michael T. Heenan, Esq., and William I. Althen, Esq., Smith,
Heenan & Althen, 1110 Vermont Avenue, N.W., Suite 400,
Washington, DC 20005-3593(Certified Mail)

/ml

FOOTNOTES

 [1]:Initially the case was scheduled for hearing on
 December 20, 1994.  Based upon the parties' agreement, an
 order was issued on January 3, 1995, continuing the hearing
 due to a pending parallel proceeding in the Pike Circuit
 Court in Kentucky.  On May 4, 1995, an order was issued
 granting Complainant's Motion to Continue and Staying
 Proceedings for
 60 Days.  On October 6, 1995, an order was issued lifting
 the Footnote 1 cont'd.

 stay, and scheduling the case for hearing on November 13,
 1995.  On October 23, 1995, an order of continuance was
 issued based upon Respondent's request that was not opposed
 by Complainant, and the case was rescheduled for hearing on
 January 29.

 [2]:Records kept in the ordinary course of business by
 Double C indicate that Kirk did not work on November 9.

 [3]:Some corroboration for Fought's testimony in this regard
 is found in the testimony of Cordial, whom I found to be a
 very credible witness, that in October and September 1993,
 he discussed Thompson's problems with Fought, and the latter
 was "really concerned about it" (Tr. 349).