Manalapan Mining Co.

Plain-English summary

Prabhu Deshetty alleged that Manalapan Mining Company discharged him because he raised safety concerns about mine ventilation fan stoppages, permissible pumps, and a county-owned bridge used to access the mine. Judge Gary Melick found that the complaints were protected activity and that the bridge complaint contributed to the discharge decision. The judge also found that the company proved it would have discharged Deshetty for unprotected performance reasons, including declining production and failure to establish a maintenance program. The discrimination complaint was dismissed.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1); 30 U.S.C. § 815(c)(3)
• Outcome: The discrimination complaint was dismissed.
• Key point: A protected safety complaint may contribute to a discharge, but the claim can still fail if the operator proves it would have taken the same action for independent, unprotected reasons.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                       December 12, 1996

PRABHU DESHETTY, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. KENT 96-201-D
: BARB CD 96-05
v. :
: Mine: No. 2
MANALAPAN MINING CO., : Mine ID: 15-02002
Respondent :

                            DECISION

Appearances: Timothy L. Wells, Esq., Hyden, Kentucky, for
the Complainant;
Susan C. Lawson, Esq., Harlan, Kentucky, for the
Respondent.

Before: Judge Melick

 This case is before me upon the complaint by Prabhu Deshetty

under Section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et. seq., the “Act,” alleging that the
Manalapan Mining Company (Manalapan) discharged him on
December 30, 1995, in violation of Section 105(c)(1) of the Act.1

 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 coal or other
mine of an alleged danger or 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 potential transfer under a standard published pursuant to
Section 101 or because such miner, representative of miners or

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In particular Mr. Deshetty alleges that his discharge was a
direct result of safety complaints regarding the mine access
bridge, the availability and use of permissible pumps and the
Respondent’s alleged failure to properly evacuate miners during
periods of ventilation fan shutdowns.

 Deshetty has a bachelor’s degree in geology and mining

engineering and a master’s degree in mining engineering. He also
has 20 years experience in the mining industry including work as
a section foreman and mine foreman. Deshetty was hired as Vice-
President for Operations (in charge of both production and
maintenance) by Manalapan President Duane Bennett on
July 10, 1995. Bennett was looking for someone to take over and
improve production.

 Deshetty testified at hearing regarding his four alleged

safety complaints made between the commencement of his work on
July 10, 1995, and his discharge on December 30, 1995. Toward
the end of July, about two weeks after he began working for
Manalapan, as he was driving home from work he heard on his “CB”
radio that there had been a power outage at the mine causing a
ventilating fan stoppage. Returning to the mine and arriving
about 30 minutes later, Deshetty met Ralph Napier, the overall
superintendent of Manalapan mines. Napier told Deshetty that the
miners were still underground and that the fan was still down.
Deshetty observed that the law requires miners to be evacuated if
the fan is down for 15 minutes. Deshetty described his meeting
with Napier in the following colloquy:

      Judge Melick:   And What did you learn when you got back
 to mine property?

      The Witness:   The power was still off. That’s when
 I asked Ralph, you know, “What are the people doing?” He
 said, you know, “They are still underground.” . . .

      The Witness:    He said, “The power is off.   They are
 still underground.   They are working.”

applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or has

Footnote 1 Continued

testified or is about to testify in any such proceeding, 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 the Act.”

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      Judge Melick:   Any further conversation?

      The Witness:  Yes. I told him, you know, “I can’t
 believe this. We are supposed to bring the people out after

 15 minutes.” And I cautioned him right then, you know, that
 it should not happen anymore.

      Judge Melick:   Were the men brought out at that time?

      The Witness:   No. Then the next question for me was
 -- I asked him, “How long will it take to get the power and
 the fans back on?” He said, “In about 15, 20 minutes, they
 will have the power back up, and the fan started.”

 Although he was in charge of the mine and Napier was his

subordinate, Deshetty did not order the miners to be evacuated.
Napier agreed with Deshetty that the mine should have been
evacuated and agreed to evacuate the miners if a fan stoppage
occurred again. Deshetty apparently maintains that his protected
complaint occurred a few days later when he saw mine owner Duane
Bennett and “mentioned that to him, you know, this has been going
on, and I don’t like it.” (Tr. 18). Bennett agreed that the
miners should be removed from the mine whenever there is a fan
stoppage.

 Subsequently, at the end of September, Deshetty’s position

had changed so that he was in charge only of maintenance. Carson
Shepherd was then brought in to handle operations and production.
Deshetty testified that when this change was made Bennett warned
both he and Shepherd that if production did not improve they
would both be removed.

 Deshetty alleges that his second protected activity resulted

from events in October 1995, regarding an intentional fan
stoppage while power cables were being replaced. According to
Deshetty, the fan had already been off for 15 minutes when he
arrived and they began running another cable with the fan still
off. When he complained to Shepherd about this procedure
Shepherd purportedly responded only that “there is one more cable
to be done” (Tr. 23). Deshetty maintains that when he later told
Bennett about this incident, Bennett responded “I am not worried
about something happening, because we don’t have that much gas in
these mines” (Tr. 25). Deshetty did nothing to stop this
apparently unlawful procedure claiming that he was not then in
charge.

 The third alleged protected activity occurred sometime

before the first week of November, 1995. A security guard had

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reported to Deshetty that truck drivers had been complaining
about the safety of a county-owned bridge providing the only
access to mine property. Gary Tucker, Manalapan’s resident
engineer, told Deshetty that the bridge had a load limit of 3
tons and Deshetty was aware that the trucks using the bridge
weighed 30 tons. Deshetty had also observed that one of the
bridge slabs was so weak you could see it move when the loaded
trucks passed over (Tr. 30). Deshetty accordingly directed

Tucker to contact the department of transportation regarding its
safety. One of the bridge slabs subsequently collapsed and it
was repaired by Manalapan.

 Later, at a meeting with Bennett at which Larry Ellis,

Olin Pennington and Carson Shepherd were also present, Bennett
asked Deshetty if he had approached the “DOT” about the bridge.
When Deshetty admitted that he had done so Bennett purportedly
responded as follows:

      You should not have done that. You should not have
      gone over my head. Don’t do this in the future. . .
      You know what happens if the bridge -- if something
      happens to the bridge . . . We both better hope
      nothing will happen to the bridge.2

 The fourth alleged safety complaint occurred during the

first week of December after a citation had been issued for a
non-permissible pump in the return air course. Deshetty told
Bennett of the need for a new permissible pump and Bennett
purportedly responded “[h]ere we go again. . . You want to spend
more money” (Tr. 40). Deshetty nevertheless directed the
purchasing department to obtain the pumps.

 According to Deshetty, at the December 30 meeting at which

he was terminated, Bennett told him that he had not accomplished
anything and that he could not afford to retain him. Deshetty
acknowledged that when hired he was told to increase production
and reduce costs in the four existing mines and that he was to
open a fifth mine. He acknowledged that he never did get the
fifth mine operating in the three months he was in charge.

 This Commission has long held that a miner seeking to

establish a prima facie case of discrimination under
Section 105(c) of the Act bears the burden of persuasion that

 2
    Bennett later testified that he was concerned that

government officials might condemn the bridge, the only access to
the mine, thereby shutting down operations.

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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 grounds, sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); and Secretary on behalf of Robinette v. United 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
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).

 It may reasonably be concluded that the two conversations

Deshetty had with Bennett concerning the fan stoppages and his
conversation with Bennett regarding the need to obtain a
permissible pump were protected safety complaints. Deshetty’s
initiation of complaints to the county government “DOT”
concerning the safety of a bridge providing access to mine
property is more problematic because the bridge was not in fact
on mine property. Under Section 105(c)(1) a complaint is
protected if it is “under or related to” the Act. Since the
bridge at issue provided the only access over which coal haulage
trucks could transport coal from the subject mine thereby
exposing miners to a serious safety hazard, I conclude that the
action of Deshetty in initiating safety complaints about that
bridge were sufficiently “related” to the Act to be within its
protections. Accordingly I find all four of Deshetty’s claimed
activities to have been protected under the Act.

 As noted, the second element of a prima facie case of

discrimination is a showing that the adverse action was motivated
in any part by the protected activity. As this Commission
observed in Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508
(November 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

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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.”

 With the exception of Deshetty’s complaint about the unsafe

bridge access to mine property none of his alleged "safety
complaints" to Bennett were made in a context from which one
would expect retaliation. Indeed, with respect to the first fan
outage incident, it was Deshetty's own responsibility as Vice
President of Operations, after he learned that miners remained
underground longer than the 15 minutes allowed by law, to have
those miners evacuated. Deshetty merely cautioned his
subordinate, Ralph Napier, that the miners should have been
evacuated and warned him not to let it happen again. Moreover,
in discussing this incident with his supervisor, Manalapan
President Duane Bennett, the next morning, Bennett agreed that
when the fan is "out" for more than 15 minutes, the miners should
be evacuated from underground. Deshetty acknowledged moreover
that Bennett was not angry at this meeting and there is in fact
no evidence to suggest that Bennett bore any animus toward
Deshetty as a result of this incident. I cannot therefore
conclude that Deshetty's discharge about five months later was
motivated in any part by this incident.

 Deshetty's claimed protected activity regarding the second

“fan stoppage” incident, in October 1995, was apparently his
report of this incident to Bennett the next day. According to
Deshetty, Bennett said, in response to his report, that he was
not worried about anything happening because there was not much
gas in the mine. Bennett denied making the statement. He
credibly testified that he was at the mine when the new high
voltage line was taken underground and the procedures were
explained to him. Deshetty was also then present but turned and
drove off apparently without comment. Deshetty fails to suggest
any evidence of animus or reason to retaliate for this event.
Under the circumstances it cannot reasonably be inferred that
Deshetty's subsequent discharge was motivated in any part by this
incident.

  Around December 9-10, 1995, at a meeting with Mr. Bennett

and all the foremen, Deshetty mentioned to Bennett that Manalapan
needed to buy some permissible pumps for the No. 2 Mine. Bennett
responded "here you go again, you want to spend more money."
Deshetty nevertheless obtained quotes for the pumps and directed
the purchasing department to buy the pumps at the lowest price.
Deshetty acknowledged that Bennett did not refuse to authorize

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the purchase of the pumps. Deshetty also acknowledged that
Bennett liked to joke around from time to time and that when he
made the noted comment Deshetty did not believe the statement
would have any impact on his continued employment with Manalapan.

 Chief Electrician Earl McKnight testified that when Bennett

made the noted comment he thought Bennett was talking to him
rather than Deshetty and interpreted it as one of Bennett's jokes
because Bennett had a "friendly attitude" at the time. At
Bennett's direction, McKnight obtained quotes and gave them to
Deshetty. Thereafter, McKnight discovered a permissible pump
already at the mine and this pump was utilized without the need
to purchase a new one. There is again simply no evidence to
suggest that this event had anything to do with Deshetty's
discharge.

 Clearly however Bennett showed hostility towards Deshetty’s

protected complaints about the unsafe county-owned access bridge,
telling Deshetty that he “should not have done that” and that he
“should not have gone over my head”. Bennett also told Deshetty
not to report problems with the bridge to governmental
authorities in the future. Indeed Bennett himself testified that
he told Deshetty that he should not get involved in the local
politics because he, Bennett, had lived in Harlan County all of
his life and it “came back to him.” He was concerned that if the
bridge was condemned then mine operations would have to close
down. Bennett denied however that Deshetty’s activities in this
regard had anything to do with his firing.

 There was also a close relationship in timing between this

protected activity and the adverse action in that the bridge
defects were apparently reported to the county in early November
and on December 30th Deshetty was discharged. I therefore
conclude that Bennett (and therefore Manalapan) was motivated, at
least in part, by this protected activity. Deshetty has
accordingly established a prima facie case of discrimination that
is unrebutted.

 In accordance with the Pasula analysis the issue then is

whether Respondent has affirmatively defended by proving that it
would have taken the adverse action in any event on the basis of
Deshetty’s unprotected activity alone. In this regard Bennett
testified that Deshetty was discharged solely because he was not
productive and that things were going from "bad to worse". In
addition Deshetty had failed to open the new fifth mine during
his tenure. Bennett testified that by August he noted in regard
to production, maintenance and the "whole management of the
mines" that "instead of things going forward, I saw them going

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backwards" (Tr. 215-216). According to Bennett, July was a
losing month and August was even a "much bigger loser." The
average cost per clean ton in the first six months of 1995 had
been $15.73 and in July it went up to $25.05. While costs came
down to $20.47 in August, to $17.37 in September, to $17.69 in
October, to $18.09 in November and to $14.30 in December, Bennett
observed that over the last six months of the year the mine lost
over a million dollars. He noted that the $15.73 average cost
per clean ton in the first six months went up to $18.01 for the
last six months.

 Bennett also noted, and it is undisputed, that, while

Deshetty had been transferred out of production responsibilities
and into maintenance around the end of September he told both
Deshetty and Carson Shepherd (who assumed the production
responsibilities) that they would both be removed if production
did not improve. When production did not improve and Deshetty
"never got a maintenance program off the ground" they were both
removed. Bennett also found that Deshetty was not aggressive in
getting things done.

 Within this framework of evidence I conclude that indeed

Respondent has sustained its burden of proving that it would have
discharged Complainant in any event for unprotected reasons
alone. In reaching this conclusion I am cognizant that Shepherd
was subsequently retained in another capacity at another
Manalapan mine. I do not however find that this evidence is of
sufficient weight to alter my conclusion herein. This case must
accordingly be dismissed.

                          ORDER

 Docket No. KENT 96-201-D is hereby dismissed.




                       Gary Melick
                       Administrative Law Judge

Distribution:

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Timothy L. Wells, Esq., P.O. Box 1861, Hyden, KY 41749

Susan C. Lawson, Esq., Lawson & Lawson, P.S.C., Wheeler Building,
Suite 301, 103 North First Street, P.O. Box 837, Harlan, KY 40831

/jf

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