Ikerd-Bandy Co., d/b/a Cockrell's Fork Mining

Plain-English summary

Ronnie Gay alleged that Ikerd-Bandy refused to hire him because he had reported safety problems while working for the predecessor operator, Whitaker Coal Company. Judge Gary Melick excused Gay's late filing because he did not learn of his rights under the Mine Act until shortly before filing. The judge found that Gay had engaged in protected safety activity, but the Secretary did not prove that Ikerd-Bandy's decision not to hire him was motivated by that activity. The discrimination proceeding was dismissed.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1) and (c)(2); 30 U.S.C. § 802(g)
• Outcome: The discrimination proceeding was dismissed.
• Key point: Protected safety complaints and employer knowledge alone did not prove that the non-hiring decision was motivated by those complaints.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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



                          March 6, 1996

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-597-D
on behalf of RONNIE GAY, :
Complainant : BARB CD 95-08
v. :
: Perry County No. 1 Strip
IKERD-BANDY CO., d/b/a : Mine ID 15-08038
COCKRELL'S FORK MINING :
Respondent :

                              DECISION

Appearances: Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee for
the Complainant;
William I. Althen, Esq. and Donna C. Kelly, Esq.,
Smith, Heenan and Althen, Washington, D.C.
and Charleston, West Virginia, respectively on
behalf of Respondent.

Before: Judge Melick

 This case is before me upon the complaint by the Secretary

of Labor on behalf of Ronnie Gay under Section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the “Act,” alleging that Ikerd-Bandy Company, Inc. (Ikerd-
Bandy) violated Section 105(c)(1) of the Act when it did not hire
Mr. Gay, an applicant for employment, in early July 1994.1 In a

 1
     Section 105(c)(1) of the Act provides 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, representative of miners or
 applicant for employment in any coal or other mine subject
 to this Act because such miner, representative of miners or
 applicant for employment has filed or made a complaint under
 or related to this Act, including a complaint notifying the
 operator or the operator’s agent, or the representative of
 the miners at the cola or other mine of an alleged danger or

Page 2

preliminary motion to dismiss Ikerd-Bandy argues that Mr. Gay
failed to meet the filing requirements under Section 105(c)(2) of
the Act in that he “unjustifiably failed to file the charge of
discrimination within (60) days of the date of the alleged
violation, and the delay results in some specific prejudice to
Respondent”.

Motion to Dismiss

 In relevant part, Section 105(c)(1) of the Act prohibits

discrimination against a miner or applicant for employment
because of his exercise of any statutory right afforded by the
Act. n.1, supra. If a miner or applicant for employment believes
that he has suffered discrimination in violation of the Act and
wishes to invoke his remedies under the Act, he must file his
initial discrimination complaint with the Secretary of Labor
within 60 days after the alleged violation in accordance with
Section 105(c)(2) of the Act.2 The Commission has held that the
purpose of the 60-day time limit is to avoid stale claims, but
that a miner’s late filing may be excused on the basis of
“justifiable circumstances.” Hollis v. Consolidation Coal
Company, 6 FMSHRC 21 (1984); Herman v. IMCO Services, 4 FMSHRC

 safety or health violation in a coal or other mine, or
 because such miner, representative of miners or applicant
 for employment is the subject of medical evaluations and

Footnote 1 Continued

 potential transfer under a standard published pursuant to
 Section 101 or because such miner, representative of miners
 or applicant for employment has instituted or caused to be
 instituted any proceeding under or related to this Act or
 has testified or is about to testify in any such
 proceedings, or because of the exercise by such miner,
 representative of miners or applicant for employment on
 behalf of himself or others of any statutory right afforded
 by this Act.
 2
   After investigation of the miner’s complaint, the

Secretary is required to file a discrimination complaint with
this Commission on behalf of the miner or applicant for
employment if the Secretary determines that the Act was violated.
If the Secretary determines that the Act was not violated, he is
required to so inform the individual complainant and that person
may then file his own complaint with the Commission under Section
105(c)(3) of the Act.

                            2

Page 3

2135 (1982). In those decisions the Commission cited the Act’s
legislative history relevant to the 60-day time limit:

 While this time-limit is necessary to avoid
 stale claims being brought, it should not
 be construed strictly where the filing of
 a complaint is delayed under justifiable
 circumstances. Circumstances which could
 warrant the extension of the time-limit would
 include a case where the miner within the 60-day
 period brings the complaint to the attention of
 another agency or to his employer, or the miner
 fails to meet the time-limit because he is mislead
 as to or misunderstands his rights under the Act.
 (citation omitted).

The Commission noted accordingly that timeliness questions must
be resolved on a case-by-case basis, taking into account the
unique circumstances of each situation.

 It is undisputed in this case that the alleged act of

discrimination commenced on July 2, 1994, when Ikerd-Bandy did
not hire Gay and that Gay did not file his complaint with the
Secretary until December 13, 1994. His signed complaint is dated
December 14, 1994.

 Gay testified at hearing as justification for the delay that

he was unaware of his rights to file a complaint of
discrimination under the Act until a coincidental meeting with
Federal Mine Inspector Dash on December 12, 1994. Dash was
purportedly investigating an unrelated matter at the subject mine
in which rock from an explosives blast struck nearby homes. A
conversation ensued with Gay in which Gay related his experience
at the Whitaker mine operation (predecessor to Ikerd-Bandy)
concerning safety reports he prepared regarding the absence of a
guard for the cooling fan on his bulldozer. Dash purportedly
advised Gay of his right to file a complaint with the Mine Safety
and Health Administration (MSHA) and the next day Gay filed the
complaint at issue with the Hazard, Kentucky, MSHA office.

 Gay’s testimony on this issue is not disputed and, indeed,

provides justification for the relatively brief delay in the
filing of his complaint. Accordingly Gay’s late filing may be
excused.

The Merits

                            3

Page 4

 In his amended complaint filed at hearing the Secretary

alleges in relevant part as follows:

      The Complainant, Ronnie Gay, was employed as a bull
 dozer operator by Whitaker Coal Company (“Whitaker”) until
 June 30, 1995 and was a “miner” within the meaning of
 Section 3(g) of the Act [30 U.S.C. 802(g)].

      Between June 15 and June 27, 1994 Ronnie Gay
 communicated safety complaints to Whitaker through its
 agent, Superintendent Carson Sizemore (“Sizemore”).

      On or about June 20, 1994 Sizemore, as Whitaker’s
 superintendent ordered Ronnie Gay, through Whitaker’s
 foreman Raymond Walker, to stop communicating his safety
 complaints to Whitaker.

      Ronnie Gay continued to communicate safety complaints
 to Whitaker.

      On June 30, 1994 all Whitaker miners, including Ronnie
 Gay, were laid off by Whitaker.

      As of July 1, 1994 mine operations were purchased by
 respondent, Ikerd-Bandy Co., Inc.

      Ikerd-Bandy Co., Inc. used the same equipment, same
 employees, and same methods of mining to extract coal from
 the same coal seam mined by Whitaker. Ikerd-Bandy Co., Inc.
 was a successor operator to Whitaker.

      Ikerd-Bandy Co., Inc. hired Sizemore as its
 superintendent as of July 1, 1994.

      On July 2-3, 1994 all Whitaker miners who had filed
 applications for work with Ikerd-Bandy were interviewed by
 Sizemore and another representative of Ikerd-Bandy Co., Inc.

      On July 1, 1994 Ronnie Gay filed an application for
 work with Ikerd-Bandy and on or about July 2, 1994 was
 interviewed by Sizemore and another agent of Ikerd-Bandy.
 Ronnie Gay was an applicant for employment within the
 meaning of the Act.

      Ronnie Gay was discriminated against on or about
 July 2, 1994, when he was denied employment by Ikerd-
 Bandy because, prior to this date, he had communicated
 safety complaints to Ikerd-Bandy’s agent Sizemore while

                            4

Page 5

 both Ronnie Gay and Sizemore were employed by Ikerd-Bandy’s
 predecessor, Whitaker. The safety complaints related to
 the condition of the bulldozer Ronnie Gay operated for
 Ikerd-Bandy’s predecessor, Whitaker.

 The Secretary is seeking, inter alia, an order directing

Ikerd-Bandy to pay “damages in an amount equal to full back pay,
all employment benefits, all medical and hospital expenses and
any and all other damages suffered by Ronnie Gay as a result of
the discrimination from the date of the discrimination until the
date Gay was reinstated to full employment status with Ikerd-
Bandy, i.e. until June 23, 1995, and a civil penalty of $6,000.”

 This Commission has long held that a miner or applicant for

employment seeking to establish a prima facie case of
discrimination under section 105(c) of the Act bears the burden
of persuasion 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 (1980), rev’d on grounds, sub nom.
Consolidation Coal Co. V. Marshall, 663 F.2d 1211 (3rd Cir.
1981); and Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (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
the protected activity. If an operator cannot rebut the prima
facie case in this manner, it may nevertheless defend
affirmatively by proving that it would have taken the adverse
action in any event on the basis of the miner’s 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 dispute in this case that Gay filed numerous

safety complaints during his four years while working for
Whitaker, including as many as 200 pre-shift driver’s reports
citing equipment defects and the more recent pre-shift reports
citing the absence of a guard over the radiator fan on his
bulldozer (Joint Exhibit No. 1). It is not disputed that Gay
continued to file such reports through his last day of work for
Whitaker on June 30, 1994, when Whitaker closed down operations
at the subject mine and released all of its workforce.

                            5

Page 6

Considering this undisputed evidence it is clear that Gay had in
fact thereby engaged in protected activity.

 The second element of a prima facie case of discrimination

is a showing that the adverse action (in this case the decision
of Ikerd-Bandy not to hire Gay on or about July 2, 1994) was
motivated in any part by the protected activity.3 As this
Commission noted in Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508
(1981), rev’d on other grounds sub nom. Donovan v. Phelps Dodge
Corp., 709 F.2d 86 (D.C. Cir. 1983), “[d]irect evidence of
motivation is rarely encountered; more typically, the only
available evidence is indirect.” The Commission considered in
that case the following circumstantial indicia of discriminatory
intent: knowledge of protected activity; hostility towards
protected activity; coincidence of time between the protected
activity and the adverse action; and disparate treatment. In
examining these indicia the Commission noted that the operator’s
knowledge of the miner’s protected activity is “probably the
single most important aspect of the circumstantial case”.

 In this regard it is undisputed that former Whitaker Mine

Superintendent Carson Sizemore was Gay’s supervisor while Gay
worked at Whitaker as a bulldozer operator until Whitaker ceased
operations on June 30, 1994. Gay testified that he began filing
pre-shift driver’s reports on the missing fan guard as early as
April or May 1994, and continued through June 30, 1994.
According to Whitaker foreman Raymond Walker, it was the practice
for the pre-shift reports to be completed by the equipment
operators before each shift to notify management of mechanical
and/or safety defects. Walker would collect these reports from
the operators on his shift and turn them over to Robert Baker in
the mine office. According to Walker, Baker then made a list of
the reported problems and provided that list to Sizemore.

 Gay testified that although Sizemore had never talked to him

directly about these reports, Raymond Walker, who was his
foreman, told him on June 7, 1994, that Sizemore did not want him
to continue reporting the absent bulldozer fan guard. Gay
testified that he told Walker that he would nevertheless continue
to write the reports.

 In his testimony Walker confirmed that, following complaints

to Sizemore about the missing fan guard on Gay’s bulldozer,
Sizemore told Walker to tell Gay not to report this problem any

 3
   Gay was subsequently hired by Ikerd-Bandy and began work

on June 23, 1995.

                            6

Page 7

more. Walker confirmed that he reported Sizemore’s response to
Gay. This corroborated and credible testimony may reasonably be
considered evidence not only of knowledge by Sizemore of Gay’s
protected activity but also of animus toward that activity.
Sizemore’s contrary testimony is also accordingly afforded but
little weight. The Secretary alleges that Sizemore, as successor
Ikerd-Bandy’s new superintendent, thereafter retaliated against
Gay when he presumably rejected Gay’s July 1994, application for
employment with Ikerd-Bandy.

 The record shows that on July 1, 1994, Whitaker sold

substantially all of the assets of the subject mine to Ikerd-
Bandy, an unrelated business entity. According to William Rich,
Ikerd-Bandy’s president, two or three weeks prior to that date he
told the Whitaker miners at meetings at the mine that he intended
to hire from among the miners who were already working and did
not intend to bring miners in from other jobs. While there is
some disagreement over the precise words used by Rich, even one
of the Secretary’s own witnesses, Daryl Baker, agrees that Rich
did not say he would hire all of Whitaker’s employees. I,
therefore, find Rich’s testimony to be the most credible.
Indeed, Rich projected that of Whitaker’s work force of about 155
employees (110 of whom worked on the mine site) he planned on
retaining only 65. Rich nevertheless invited all Whitaker miners
to apply for jobs with Ikerd-Bandy and more than one hundred
Whitaker miners, including Gay, did apply.

 As noted, Ikerd-Bandy hired Whitaker’s former

superintendent, Sizemore, on July 1, 1994 to help with the
transition. Around July 2-3, 1994, Ikerd-Bandy’s operations
manager, Stephen Huey, and Sizemore interviewed every Whitaker
miner who applied for work with Ikerd-Bandy, including Gay.
Within a week of Whitaker’s closing, Ikerd-Bandy commenced mining
operations at the same site but with only about sixty-five
miners, not including Gay.

 Indeed, while some circumstantial evidence, including

knowledge of protected activity and timing, may suggest an
illegal motivation for not hiring Gay in July 1994, I find that
such evidence is neutralized by other credible evidence, the
absence of credible evidence of disparate treatment, and, on
balance that the Secretary has failed to sustain her burden of
proving such unlawful motivation.4 I have considered, in this

 4
   I have also considered the subsequent purported statement

on January 3, 1995, of Huey that they would not hire Gay because
he filed the instant proceedings. While this statement, if made,
would clearly show animus toward Gay’s protected activity of

                            7

Page 8

regard, the long history of Gay and co-workers, Durscle Stephens
and Prentiss Baker, for filing safety complaints while employed
by Whitaker and working for Sizemore but without evidence of
previous retaliation. Indeed, several of these former Whitaker
employees with long histories of filing safety complaints were
offered jobs and hired by Ikerd-Bandy. I also find credible the
testimony of Ikerd-Bandy’s president, William Rich, as to the
hiring procedures followed in July 1994, based upon unprotected
rationale (Tr. 229-235), and that he planned to and did retain
only 65 of the 155-man workforce maintained by his predecessor,
and the evidence that Sizemore had no input as to Ronnie Gay
(Tr. 204, 217).

 It is also noteworthy that Gay himself admitted that he has

no knowledge as to how Ikerd-Bandy chose its employees and was
only speculating that he was not hired because he had filed pre-
shift reports. Finally, there is no credible evidence of
disparate treatment of Gay based upon his protected activity and,
indeed, there is no credible evidence that anyone less qualified
than Gay was hired by Ikerd-Bandy before Gay himself was hired.

 It should be noted that even assuming, arguendo, the

Secretary had established a prima facie case of discrimination,
the above evidence would nevertheless establish an affirmative
defense that Ikerd-Bandy would not have hired Gay in July 1994,
for unprotected reasons alone.

 Under the circumstances this discrimination proceeding must

be dismissed.

                          ORDER

 Discrimination Docket No. KENT 95-597-D is hereby dismissed.

filing the instant discrimination case and could very well
provide grounds for an independent cause of action, I do not, in
any event, find this evidence to be sufficiently connected to the
claim in this case to have any decisive bearing.

                            8

Page 9

                          Gary Melick
                          Administrative Law Judge
                          703-756-6261

Distribution:

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)

William I. Althen, Smith, Heenan & Althen, Suite 400, 1110
Vermont Ave., N.W., Washington, D.c. 20005 25329-2549
(Certified Mail)

Donna C. Kelly, Esq., Smith, Heenan & Althen, One Valley Square,
Suite 1380, P.O. Box 2549, Charleston, WV 25329-2549 (Certified
Mail)

\jf

                            9