Peter L. Dunne v. Vulcan Construction Materials, L.P.

Plain-English summary

Peter Dunne alleged that Vulcan fired him because he had earlier reported finding a blasting cap and booster on his roof bolter. Judge L. Zane Gill found that the earlier report was protected activity and that Dunne barely established an initial inference of discrimination. The evidence nevertheless showed that Vulcan fired him 14 months later because he knowingly gave an MSHA inspector a false explanation for missing identification tags. Vulcan investigated that incident, applied its personnel policies, and showed that the false statement alone justified termination. The judge found no meaningful connection between the safety report and the firing and dismissed the complaint.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)
• Outcome: Dunne's discrimination complaint was dismissed.
• Key point: An operator rebuts an initial discrimination inference when it proves that a later, independent false statement alone motivated and justified the termination.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

1331 Pennsylvania Ave., N.W.

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

December 14, 2012

PETER L. DUNNE,

Complainant,

v.

VULCAN CONSTRUCTION

MATERIALS, L.P.,

Respondent.

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DISCRIMINATION PROCEEDING

Docket No. LAKE 2011-457-DM

NC-MD 11-01

Mine: Bartlett Underground Mine

Mine ID: 11-03115

DECISION

Appearances:  Peter L. Dunne, pro se Complainant, Hannover Park, Illinois; Complainant

William K. Doran, Esq., OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C., Washington, D.C., for Respondent.

Before:            Judge L. Zane Gill

This discrimination case was filed pro se by complainant Peter L. Dunne (“Dunne”)
against Vulcan Construction Materials (“Vulcan” or “Respondent”) , alleging a violation of
section 105(c) of the Federal Mine Safety and Health Act of 1977 (the “Act” or “Mine Act”). 30
U.S.C. §815 (c) (2012). A trial was held in Bartlett, Illinois on December 13, 2011.

I. Procedural History

Dunne initiated his discrimination action pursuant to section 105(c) (2) of the Mine Act
by mailing a standard complaint form to the Mine Safety and Health Administration (“MSHA”),
dated December 12, 2010. Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2)
(2012). MSHA informed Dunne in a letter dated February 15, 2011, that based on the
information gathered during its investigation of his complaint of discrimination, it had
determined that a violation of section 105(c) of the Mine Act had not occurred. Without the
assistance of counsel, Dunne initiated this phase of his case under section 105(c) (3) of the Act in
a letter to the Commission dated March 13, 2011. Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c) (2) (2012). Dunne alleges that Vulcan terminated his employment at the
Bartlett mine for complaints he made regarding health and safety at the Bartlett mine.

Vulcan does not acknowledge that Dunne was engaged in protected activity or suffered
any actionable adverse action. It asserts that Dunne was removed from his position operating a
roof bolting machine because he made a false report to an MSHA inspector which was in no way
connected to or motivated by Dunne’s alleged protected activity.

For the reasons set forth below, I dismiss Dunne's discrimination claim.

II. Statement of the Case

After conducting an internal investigation, Vulcan terminated Dunne’s employment on
September 16, 2010, allegedly because he made a false statement to an MSHA inspector. The
inspector had cited Vulcan because he found, during the course of a routine inspection, that
Dunne was underground without his company-issued, brass ID tags. Dunne told the inspector
that his granddaughter had been playing with his keys and had removed the ID tags just the day
before the inspection without his knowing it. Vulcan’s investigation determined and confirmed
that Dunne had noted his ID tags’ absence some weeks before the citation was issued, and that
he had knowingly and admittedly given the MSHA inspector false information about the missing
ID tags at the time of the inspection.

Fourteen months prior to the ID tag incident, Dunne claimed to have found a “bomb”
consisting of a common blasting cap and a charge booster on the roof bolter he was operating.
Dunne turned the device over to the appropriate co-worker for disposal, but did not report finding
this “bomb” until two weeks later when, in a display of anger over being transferred to a new
work shift, he claimed that someone had planted the device on his roof bolter. During his
outburst, Dunne also quit his job, only to be talked into retracting by his co-workers. Vulcan
investigated the blasting cap incident, reached a dead end, and was unable to determine what had
happened to extent necessary to take any action. The company concluded its investigation,
deemed the matter closed internally, and turned the related information over to the local police
department. Neither Vulcan nor the police department did anything else in response to the
investigation.

Dunne resurrected the “bomb” incident in the context of his firing, 14 months later.
Vulcan considered it a closed issue and approached the termination solely as a response to
Dunne’s false report to an MSHA inspector. Dunne filed the discrimination complaint that
initiated this case with MSHA on March 13, 2011. The MSHA investigation that resulted from
Dunne’s complaint was limited to the circumstances surrounding the false report. MSHA
concluded that no violation had occurred. Dunne initiated and presented his case at trial without
legal counsel.

III. Legal Principles

Section 105(c) (1) of the Mine Act provides that a miner cannot be discharged,
discriminated against or interfered with in the exercise of his statutory rights because he “has
filed or made a complaint under or related to this Act, including a complaint notifying the
operator […] of an alleged danger or safety or health violation.” Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(c) (1) (2012).

In order to establish a prima facie case of discrimination under section 105 (c) (1), 30
U.S.C.A. 815(c) (1), Dunne must show: (1) that he engaged in protected activity; and (2) that the
adverse action he complains of was motivated, at least partially, by that activity. Drissen v.
Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.1998); Sec’y of Labor on behalf of
Robinette v. United Castle Coal, Co., 3 FMSHRC 803 (Apr. 1981); Sec’y of Labor on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d. Cir. 1981). To satisfy his burden
of establishing a prima facie case, Dunne must first show that he engaged in protected activity.
In the context of this case, Dunne must show that he had a reasonable, good faith concern that the
blasting cap he found on his roof bolting machine constituted a safety hazard. See, e.g., Bennett
v. Newmont Gold Co., 21 FMSHRC 252, 262 (Feb. 1999) (ALJ).

Under section § 105(c), 30 U.S.C.A. § 815(c), the operator may rebut the miner’s 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. Pasula, 2 FMSHRC at 2799-800. If the operator
cannot rebut the prima facie case in this manner, it may nevertheless defend affirmatively by
proving that it was also motivated by the miner's unprotected activity. It is not enough under 30
U.S.C.A. § 815(c) for the operator to show that the miner deserved to be fired for engaging in the
unprotected activity. The operator must show that it did, in fact, consider the miner deserving of
discipline for engaging in the unprotected activity alone and that it would have disciplined him in
any event. Id. at 2800; Robinette, 3 FMSHRC at 817-18; see also E. Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

In analyzing a mine operator's asserted justification for taking adverse action under the
Pasula-Robinette framework for evaluating discrimination claims under the Act, the inquiry is
limited to whether the reasons are plausible, whether they actually motivated the operator's
actions, and whether they would have led the operator to act even if the miner had not engaged in
protected activity. The ALJ may not impose his own business judgment as to an operator's
actions, Sec’y on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-517 (Nov.
1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983), and he may not substitute his own
justification for disciplining a miner over that offered by the operator. Sec’y on behalf of McGill
v. U.S. Steel Mining Co., 23 FMSHRC 981, 989 (Sep. 2001).

IV. Findings of Fact and Conclusions of Law

a. Stipulations

1. Vulcan Construction, LP is a mine operator subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 807.  

2. Bartlett Underground Mine is a 'mine' as defined by the Mine Act, and the mining
operations at the Bartlett Underground Mine are subject to the jurisdiction of the Mine Act.

3. The Administrative Law Judge and the Federal Mine Safety and Health Review
Commission have jurisdiction to hear and decide these proceedings.

4. Peter Dunne reported the finding of a blast cap to Jason Hook on July 13, 2009.

5. On September 16, 2010, Vulcan terminated Peter Dunne's employment.

b. Post-Hearing Stipulation

1. The anonymous hazard complaint referred to in the hearing transcript and in Exhibit
R-2 was made on or about November 17 or 18, 2010.

c. The Story

Dunne worked for Vulcan as an underground miner in its Bartlett, Illinois facility. At the
times relevant to this case, Dunne operated a roof bolting machine. (Tr. 37:6-14; 68:19-24.) The
Bartlett mine produces limestone products (Tr. 26:19-23), which are mined underground in a
process that involves a mining “cycle” of drilling blast holes, packing the holes with explosives
and detonation caps, blasting the rock, mucking out the blasted material, and preparing the site
for the next identical cycle. (Tr. 53:2-54:2.)

(1) The “Bomb”

On approximately July 8, 2009 (Tr. 10:5-21; Ex. D-1),

Dunne found a damaged blasting
cap (Tr. 25:6-15; 32:10-11; 36:20-37:1) and attached cast booster

(Tr. 26:24-27:6) lying on an
articulation point of the drive line of his roof bolting machine. (Tr.10:5-21; 30:5-11; 48:15-20;
Joint Stipulation 4.) It was most likely a misfire, inasmuch as it was damaged in ways that are
consistent with it having been a misfire. (Tr. 28:21-29:9; 36:20-37:1; 31:18-32:11; 53:22-54:2.)
Dunne testified

that he considered this unusual and potentially dangerous because: (1) all such
explosives were to be accounted for by company policy and should not have been found where
this was (Tr. 260:3-261:3); (2) he believed it could explode unexpectedly (Tr. 28:21-29:21); and
(3) he believed the cap and booster to have a potential blast strength equal to a full stick of
dynamite. (Tr. 11:3-8; 271:10-272:8; 285:1-21.)

Dunne showed the cap and booster to co-workers Ivan Beans

and Ernie Faga.

(Tr.
10:12-21; 22:1-9; 23:11-13.) Beans’ duty was to dispose of misfired ordnance. (Tr. 23:5-8.) He
took possession of the cap and booster and disposed of it later that day by exploding it along with
other misfires, which was his normal procedure.

(Tr. 23:5-20; 33:12-19; 37:2-5; 67:11-68:1.)
No one reported the discovery to management at that time. (Tr. 37:15-23.) Beans gave alternate
reasons why he did not report it to management. First he testified that he did not pass on the
report because Dunne asked him not to. (Tr. 37:21-38:5.) Then he claimed that it was because he
did not want to get Dunne in trouble. (Tr. 280:23-281:11.) Beans later changed his explanation
to state that he had not reported the find because he had destroyed the cap and booster, along
with other items, and had not noted the incident in the log book. (Tr. 280:23-281:18.) Dunne
also failed to report the incident to his union steward and lead miner Jimmy Warren, who along
with Beans was authorized to handle misfired ordnance. (Tr. 127:2-20; 63:24-64:9.)

On July 13, 2009, Dunne’s supervisor, Jason Hook, told Dunne that he and his roof
bolting machine were being moved to the second shift. (Tr. 11:9-20; 52:21-53:1; 68:19-69:17.)
Dunne became very agitated. (Tr. 69:22-70:5; 76:24-77:5; 127:23-128:4.) He told Hook and
Jimmy Warren, who was also present, that he was going to quit and told them to take him to the
surface immediately because he was done with Vulcan. (Tr. 70:6-9; 77:3-17; 124:21-125:1.) As
they were getting ready to return to the surface, Dunne told Hook and Warren about finding the
cap and booster and showed them where he had found it. (Joint Stipulation 4; Tr. 7:23-24; 11:21-12:4; 54:11-13; 70:13-20.) Hook told Dunne that he would have to pass the report on to higher
management. As he had done with Beans, Dunne tried to convince Hook not to report the
discovery (Tr. 128:12-23), but Hook told him that he was obligated to take the report to higher
authority even if Dunne carried out his threat to quit his job. (Tr. 71:9-17; 72:1-11; 128:12-23.)
Hook reported the incident to his area manager, Phil Hovis. (Tr. 55:17-24; 64:22-65:1; 65:8-66:1; 71:18-24.)

Vulcan conducted an investigation into the blasting cap incident within days of the report.
(Tr. 49:13-20; 72:12-17; 257:1-5.) An inventory of explosives was taken; nothing was missing.
(Tr. 257:6-16.) Dunne and other miners were interviewed. (Tr. 12:5-10.)

Vulcan was unable to
determine if anything actionable had happened with regard to the blasting cap and booster report.
(Tr. 137:22-138:11; 231:20-233:16; 248:15-249:6; 258:2-16.) The company determined that the
cap and booster had not been planted on Dunne’s equipment and that nothing had happened that
would require a report to MSHA. (Tr. 232:11-18; 260:18-261:13.) Within a week of starting
their investigation, Vulcan management met with local police officials, turned over their
investigation materials, and left any further action up to them. (Tr. 248:15-23; 258:13-260:7;
263:23-264:7.) Vulcan concluded its investigation without taking any action. (Tr. 232:5-233:16;
267:6-268:4.)

After meeting with the Bartlett police, Vulcan had a closeout interview with Dunne about
the investigation into the blasting cap incident. Terry Browning

explained Vulcan’s
investigation process and their consultation with the police. (Tr. 248:24-249:6.) Browning
explained why Vulcan did not report to the Bureau of Alcohol, Tobacco and Firearms (“ATF”).
(Tr. 260:7-17; 264:17-266:17.) From that time until Dunne was terminated for the ID tag issue
some 14 months later, there was no more discussion of the issue. (Tr. 205:7-16; 222:22-223:13;
233:4-16; 266:18-267:2.)

Someone made an anonymous report of the blasting cap incident to MSHA on or about
November 17, 2010. (Post-Hearing Stipulation; Ex. R-2; Tr. 14:20-15:3; 261:14-262:3.) MSHA
sent an investigator to the Bartlett mine to look into the allegations. (Tr. 15:4-15; 97:13-23; Ex.
S-2.) MSHA concluded its investigation and determined that it would not take any action on the
complaint. (Tr. 98:6-12; 137:22-138:11; 261:14-262:3.)

(2) ID Tags

It is a matter of training and common knowledge that all Vulcan miners must carry metal
ID tags any time they are working underground. (Tr. 39:14-40:10; 42:11-14; 50:12-17; 73:18-74:8; 151:18-153:9.) They are required to “tag in” when they go underground and “tag out”
when they return to the surface. (Tr. 49:21-50:10.) This facilitates knowing who is underground
and is particularly helpful in case of an underground emergency. (Tr. 40:13-19.)

On September 15, 2010, some 14 months after the blasting cap incident (Tr. 233:17-20),
MSHA inspector James Kirk came to the Bartlett mine to conduct a regular quarterly inspection.
(Tr. 147:10-148:7.) Dunne was responsible for one of the three citations Kirk issued that day.
(Tr. 59:13-15; 60:3-6.)

Dunne did not have his metal ID tags on his person. (Tr. 41:22-42:9.) Kirk spoke to
Dunne during his inspection and asked him to produce his ID tags. (Tr. 132:22-133:8.) Dunne
told Kirk that he did not have them and that, unknown to him, his granddaughter had removed
them from his key ring the evening before while she was playing with them. (Tr. 150:8-13;
199:6-200:16.) Kirk required that Dunne return to the surface immediately to get new ID tags.
(Tr. 134:4-135:3; 150:24-151:10; 190:13-22.) Kirk issued a citation for Dunne’s failure to have
ID tags while underground. (Ex. R-1; Tr. 135:4-6; 140:9-141:8.) On the way to the surface,
Dunne told Jimmy Warren that he had given inspector Kirk false information about the missing
ID tags, and that in reality the tags had been stolen out of his work locker several weeks before.
(Tr. 135:7-137:4; 285:22-287:3.) After returning underground, Dunne also told mine manager
George Taylor that he had lied to Kirk about the ID tags. (Tr. 190:23-191:15.)

While Kirk was still at the Bartlett mine, Vulcan management decided they had to reveal
that they believed that Dunne had lied to Kirk about the ID tags. Management was concerned
that Vulcan could be liable for a serious penalty if the company was aware that Dunne had made
a false statement to an MSHA inspector and took no action. (Tr. 155:21-158:20;160:12-161:13.)
Before Kirk left the mine, Vulcan’s Safety and Health Manager, Jerry Murphy, and Mine
Manager, George Taylor, met with him in an inspection close-out meeting. Murphy told Kirk
that Dunne had lied about what happened to his ID tags. (Tr.192:6-22.)

Graham Ault, Midwest Division Human Resources Manager, suspended Dunne on
September 16, 2010, pending an investigation.

(Tr. 196:16-197:2; 214:1-215:5.) Ault’s
investigation focused on the two issues Dunne had already admitted to: (1) failure to have ID tags
while underground; and (2) giving false information to an MSHA inspector. (Tr. 199:6-24;
217:18-23; 220:16-221:20.) At the time of the suspension, Dunne asked Ault what Vulcan had
done in response to his earlier report of finding the cap and booster. Ault told him that the issue
had been investigated before, discussed with Dunne, and was considered a closed issue. (Tr.
222:22-223:13.)

Ault consulted with Taylor and Murphy (Tr. 215:17-219:14), referenced Vulcan’s
personnel policies (Ex. R-3), and determined preliminarily that not having ID tags underground
and knowingly giving false information to an MSHA inspector could violate two separate
company policies. (Tr. 217:18-23.) Ault determined that the false statement should be treated as
a “Level One” violation, which justified immediate termination under the personnel policies in
place at the time. (Tr. 226:1-227:3; Ex. R-4.)

On September 20, 2010, Ault and Taylor met with Dunne and union business agent Dan
Opatkiewicz to confirm Dunne’s information about the missing ID tags and the false statement.
(Tr. 219:15-222:18.) During the meeting, Dunne confirmed that he had been without his ID tags
for some time and that he had given Inspector Kirk false information about how he lost his ID
tags. (Tr. 220:16-222:21.) Ault notified Dunne that the false statement violation was serious and
that the company would take some time to make a final decision. (Tr. 222:4-12.) Dunne was
later terminated, effective September 16, 2010. (Joint Stipulation 5; Tr.8:1-2.)

(3) Inferential Evidence

In assessing whether Dunne has successfully stated a prima facie case under the Act, the
Court must decide whether Vulcan’s decision to terminate Dunne was in any way influenced by
his revelation that he found the blasting cap and booster on his roof bolting machine. To make
this determination, the Court may factor in reasonable inferences drawn from circumstantial
evidence.

[T]he consideration of indirect evidence when examining motivational intent
necessarily involves the drawing of inferences. As the Commission stated in
Bradley v. Belva Coal Co.,”circumstantial evidence [of discriminatory
motivation] and reasonable inferences drawn therefrom may be used to sustain a
prima facie case.” 4 FMSHRC 982, 992 (June 1982). Furthermore, inferences
drawn by judges are “permissible provided they are inherently reasonable and
there is a logical and rational connection between the evidentiary facts and the
ultimate fact inferred.” Mid- Continent Res., Inc., 6 FMSHRC 1132, 1138 (May
1984).”

Colorado Lava, Inc., 24 FMSHRC 350, 354 (April 2002).

I summarize here the evidence relating to Dunne’s prima facie burden and conclude that
certain inferences are possible– thus, legally sufficient for use in supporting his prima facie case–
but I do not make findings as to this inferential evidence beyond the acknowledging that a
reasonable person could draw the inference.

Dunne’s arguments at hearing suggested two possible motives for his firing: to protect
another employee from a potentially damaging inquiry, and to cover up the failure of measures
Vulcan had recently put in place to improve the handling of misfired ordance. In support of the
first possible motive, Dunne suggested that the two men who worked the shift just before he
discovered the blasting cap, Juan Serrano and Ben Manis, could have planted the cap on his roof
bolting machine. (Tr. 13:11-15; 54:14-55:9; 111:11-114:2; 245:21-246:6; 272:9-274:4.) Ben
Manis is Vulcan’s Mid-West division president Rob Vogel’s son-in-law. Dunne intimated that
he was fired in order to short-circuit any inquiry that might harm Manis. (Tr. 13:19-21; 240:16-241:10.) George Taylor, Vulcan’s Bartlett plant manager and the person who made the decision
to fire Dunne, did not consult with Vogel prior to making the decision. (Tr. 187:16-188:6.)
Taylor had been with Vulcan only a short time prior to Dunne’s termination. He had not heard
about the cap and booster incident, had not played any part in the investigation, or been alerted to
any issues involving Dunne. (Tr. 166:1-14.) He first learned of the cap and booster incident
when MSHA inspector David Thomey responded to the anonymous complaint and showed up at
the Bartlett mine to conduct his investigation. (Tr. 166:20-167:17.) I am not persuaded that
these events reveal a bad motive by Vulcan vis-a-vis Dunne, and I do not find it as a fact. The
theory they raise is possible, however, and therefore legally sufficient as inferential evidence to
be used to support Dunne’s prima facie burden.

The second motive that Dunne’s evidence hints at – an attempted cover-up of ongoing
problems with misfire disposal at the Bartlett Mine – relates to new safety measures put in place
prior to the “bomb” incident. Shortly before Dunne found the cap and booster,

Vulcan had
instituted a week-long, safety-related “stand-down”, during which the Bartlett mine was shut
down and Vulcan provided safety-related training to the miners. (Tr. 10:22-11:2.) One of the
topics for training was the proper handling of misfired explosives. (Tr. 24:14-20; 61:10-22; 91:2-24.) The previous plant manager, Tim McFarland, was fired at about the time of the stand-down.
(Tr. 24:14-20; 45:22-46:22.) Dunne suggested that McFarland’s termination was the result of
shoddy handling of explosives under his watch. (Tr. 46:5-13; 277:23-278:12.) Dunne argued that
management had threatened that if there were a repeat incident of improper handling of
explosives, it would simply shut the Bartlett mine down for good, which made Dunne hesitate to
report the bomb discovery. (Tr. 9:5-14; 10:22-11:2; 45:22-46:22; 120:4-11.) He also intimated
that those threats showed that management was motivated to ignore or cover up his blasting cap
discovery because the incident would prove that its efforts to better deal with misfires had been
ineffective. (Tr. 16:4-10.)

After Dunne reported finding the blasting cap and booster to Ivan Beans, Beans did not
report it to management, even though it was his duty to dispose of and account for all misfired
ordnance. (Tr. 21:8-18; 23:1-8; 33:8-19; 37:15-23; 47:12-16.) Dunne hints that this failure to
report the stray misfire to management is evidence of an atmosphere of subtle dissuasion, and
that immediately and clearly reporting his blasting cap discovery would risk potential harm to
himself and his co-workers. He further implied that the same fear prompted some co-workers
(most notably, Ivan Beans) to keep mum about the blasting cap incident. Dunne nonetheless
asked Beans not to report the find. (Tr. 38:3-5.) Later, when Dunne objected to being transferred
to another shift, threatened to quit on the spot, and reported finding the blasting cap and booster
to Warren and Hook, he again asked them not to report it. (Tr. 69:22-70:5; 128:12-23.)

Finally, It appears that Dunne himself may have played a role in the events that led to the
stand-down and the need to provide additional training about the proper handling of misfired
ordnance. Just prior to the stand-down, Dunne had the task of collecting and disposing of
misfires. (Tr. 104:23-108:13.) Jimmy Warren testified that Dunne was known to use a screw
driver to extract the misfires from the bore holes– a risky tactic– and to allow several misfired
blasting caps to accumulate and “roll around” in the cab of his bolting machine. (Tr. 104:23-108:13.) After the stand-down, the duty of collecting and destroying misfires was given to Ivan
Beans. (Tr. 63:19-64:9.)

In light of the evidence presented, it is possible to conclude that Dunne felt singled out by
Vulcan’s stand-down, and that the events related to Vulcan’s handling of his cap and booster
discovery were influenced by the institutional memory of his history handling ordnance and the
company’s efforts to improve its practices through the stand down training. (Tr. 16:4-10.) Dunne
believed that the investigation into the blasting cap discovery was so ineffective as to constitute a
cover-up by management. (Tr. 242:4-24.) He also suggested that Vulcan’s investigation into his
blasting cap report was pro forma at best and purposefully kept superficial to avoid revealing that
the prior problems with handling explosives had not been remedied by the stand-down and had,
in fact, continued.

Dunne argued that Vulcan’s reaction to his offer to submit to and pay for a
polygraph test proves this. (Tr. 12:5-15; 84:6-14; 274:5-11.) After his termination, Dunne
pursued getting a copy of his personnel file because he thought it would include dates relating to
the blasting cap incident. (Tr. 209:10-16.) He reviewed the contents of his personnel file and
found no mention of the blasting cap incident. He considered this evidence of a cover-up (Tr.
209:17-18) and felt bolstered in his opinion that Vulcan should have reported the blasting cap
incident to both ATF and MSHA. (Tr. 56:1-15; 63:11-23; 243:10-21; 274:5-17; 289:10-290:13.)

It is conceivable that Vulcan could have subtly steered its investigation of the cap and
booster incident so as to avoid creating evidence that the prior problems had not been remedied
by the stand-down and that perhaps Dunne’s carelessness was merely evidence of a more general
institutional laxness. Dunne argued that there was evidence that Vulcan discouraged full
participation and disclosure by the miners regarding any issue related to the failure of the stand-down to remedy the earlier problems with handling explosives in particular (Tr. 9:15-10:4;
10:22-11:20), and more generally regarding any matter being investigated by MSHA. (Tr.
120:18-122:22.) This seems related to Jason Hook’s testimony that he may have told Dunne that
he would not let the blasting cap incident be covered up (Tr. 55:11-16; 66:14-24), and gains
some support from Dunne’s arguments about Vulcan’s failure to notify ATF about a loss of
control of explosives and the failure to notify MSHA about the cap and booster incident.
Although the evidence presented is insufficient to convince me beyond the point of merely
recognizing Dunne’s theories, Dunne has presented evidence from which it is possible to draw an
inference for use in supporting his prima facie case.

Dunne intimated that being fired for not having ID tags was a pretext to quiet him about
the underlying blasting cap issue. (Tr. 16:4-10.) In support of this, Dunne pointed out that
Vulcan had never disciplined anyone for violating the ID tag requirement before (Tr. 61:7-9);
that there was no written policy statement that made it clear that miners had to have ID tags at all
times when working underground (Tr. 173:4-174:15); and that in thirty years, Dunne had never
been asked to show is ID tags before. (Tr. 288:15-289:9.) This, of course, ignores several salient
facts:

•          Dunne’s ID tag violation occurred 14 months after the cap and booster incident;

•          Dunne admitted not having his ID tags and that he gave Inspector Kirk a false story about
how he lost his tags;

•          Vulcan’s policies fairly and clearly make a knowing breach of company policy or rule or
a breach of trust or dishonesty “Type I” infractions which justify immediate termination.
(Ex. R-3); and

•          Nothing was offered in evidence or argument that would show that MSHA Inspector
Kirk, on whose citation the termination was based, knew anything about the cap and
booster issue.

As to this point, Dunne fails to present evidence from which a reasonable person could
draw an inference for use in making out a prima facie case of discrimination. In light of the
evidence on the record, the idea that Vulcan had a secret plan to lie in wait until something like
the ID tag issue came along to create a pretextual cover for the true plan to fire Dunne because he
found the cap and booster is fanciful at best.

Finally, there is the matter of Matt Tripp. Tripp gave information to Inspector Kirk
during his inspection on September 15, 2010, that appeared at first blush to be false. Taylor
suspended Tripp at the same time as Dunne, pending an investigation. Dunne believed the
treatment of Matt Tripp was either a smoke screen to hide the discriminatory motive against
Dunne or evidence of disparate treatment because Tripp was reinstated whereas Dunne was fired.
Tripp was brought back two days later, after it was determined that he had innocently misspoken
based on incomplete information. (Tr. 87:2-5; 93:24-95:20; 114:8-20; 156:10-158:4; 172:16-22;
194:16-196:1; 212:14-213:2.) Again, this part of Dunne’s theory is too insubstantial to make out
a reasonable inference that can be used to support a prima facie case of discrimination. There is
nothing in the record to suggest that the Tripp scenario was in any way connected to Dunne
other than by happenstance and coincidental timing.

V. Analysis and Conclusions of Law

The evidence establishes that Dunne engaged in protected activity and that he was
discharged. However the evidence fails to convince that there was any nexus between Dunne’s
protected activity and his discharge.

A. Protected Activity

To satisfy the first prong of the Pasula-Robinette test for a prima facie case of
discrimination, Dunne must show that he engaged in protected activity. Drissen, 20 FMSHRC at
328; Robinette, 3 FMSHRC 803; Pasula, 2 FMSHRC 2786. In order to show that he engaged in
protected activity, Dunne must first establish that he had a reasonable, good faith concern that the
blasting cap he found on his roof bolting machine constituted a safety hazard. See, e.g., Bennett,
21 FMSHRC at 262. In assessing whether Dunne’s apprehension about having found a blasting
device on his equipment was reasonable and held in good faith, it is relevant to consider the
delay between his finding it, his reporting it to his superiors, and his raising it as a prohibited
consideration in his termination.

Dunne’s credibility regarding his good faith belief that a violation of a safety regulation
had occurred in connection with his finding and eventually reporting the blasting cap is
significantly compromised by his failure to report it immediately and by the circumstances under
which he finally made the revelation – an angry and impetuous reaction to learning that he was
being moved to a different work shift. In combination with the evidence of Dunne’s casual
duplicity regarding the missing ID tags and the fact that he displayed the propensity to react
precipitously to circumstances he took to be inimical to his personal interest, it is difficult to have
anything more than the barest conviction that he actually considered the blasting cap discovery a
real threat to his (or others’) safety.

Another piece of evidence affects my analysis of Dunne’s good faith reporting of a safety
hazard. Jimmy Warren testified, in response to questions by Dunne, that Dunne was known to
accumulate misfired blasting caps in the cab of his roof bolting machine and was perceived to be
sloppy in the way he extracted, collected, and disposed of them. This was apparently a factor in
the decision to take the responsibility of disposing of misfires away from Dunne and give it to
Ivan Beans. (Tr. 105:22-108:13.) It is possible that the blasting cap that Dunne considered to be
a “bomb” might have simply been one of the misfires he allowed to accumulate and roll around
in the cab of his machine that fell out and was placed back on the machine by someone else.
Moreover, Dunne’s concern about the danger associated with mishandling misfired blasting caps
seems tailored to fit the larger scenario that played out when he was transferred to the other shift
and necessarily downplays the possibility of a benign explanation of how the device found its
way onto his equipment. It is perhaps understandable that Dunne would emphasize a version of
the story that ignored his own carelessness with explosives, but it is not convincing. In fact,
Dunne’s willingness to look beyond his own carelessness in his attempt to prove a larger
conspiracy impacts his overall credibility and weakens his case.

Regardless of his personal reactions and motivations, the evidence is sufficient to support
a finding that the blasting cap should not have been found where it was, and that, objectively, its
discovery implicates miner safety sufficiently to satisfy the first element in the Robinette - Pasula
analysis. Thus, on balance I find that the evidence weighs sufficiently in favor of Dunne’s
having had a good faith belief that a danger existed to satisfy the initial “protected activity”
requirement and to proceed to the analysis that follows.

B. Vulcan’s Motivation to Terminate Dunne

In order to make a prima facie case of discrimination, the second prong of the Pasula-Robinette analysis required Dunne to show that the adverse action he complains of was at least
partially motivated by his protected activity. Drissen, 20 FMSHRC at 328; Robinette, 3
FMSHRC 803; Pasula, 2 FMSHRC 2786. As part of his burden to make a prima facie showing
of discriminatory intent, Dunne must show that his termination was motivated, at least partially,
by his earlier report about finding the blasting cap on his roof bolting machine. I must determine
whether the evidence in total, including the inferential evidence, has sufficient circumstantial
weight to satisfy his prima facie burden to show discrimination.

There is rarely any direct evidence of a company’s motivation to take action against a
miner in response to his complaint about protected activity. The Commission has held that it is
appropriate to look to circumstantial evidence to establish the prima facie case of discrimination.
Chacon, 3 FMSHRC at 2510. In Chacon, the Commission identified several indicia of
discriminatory intent, including: (1) knowledge of the protected activity; (2) hostility towards the
protected activity; (3) coincidence in time between the protected activity and the adverse action;
and (4) disparate treatment of the complainant. Id. at 2510. Consideration of indirect evidence
involves the drawing of reasonable inferences from the facts of record. In Bradley v. Belva Coal
Co., with regard to the issue of motivation, the Commission found that “circumstantial evidence
[…] and reasonable inferences drawn therefrom may be used to sustain a prima facie case.” 4
FMSHRC 982, 992 (June 1982) (citing Chacon, 3 FMSHRC at 2510-12).

The Commission recently sharpened the focus on the appropriate quantum of proof
needed to establish the prima facie case. Turner v. Nat’l Cement Co. of California reiterated the
clear difference in the quantum of proof a claimant must provide to ultimately prevail in a
discrimination case as opposed to the minimal showing required to establish the prima facie case.
33 FMSHRC 1059 (May 2011). “[T]o make out a prima facie case of discrimination, the
[discriminatee] need only submit enough evidence so that the record could support an inference”
that the termination resulted, at least in part, from protected safety complaints. Id. at 1066
(internal citations omitted).

In this instance, Vulcan had knowledge of the protected activity, albeit not immediately.
Once Dunne announced that he had found the blasting cap and booster on his roof bolter and his
co-workers passed that information on to management, management undertook a timely
investigation, including interviews of Dunne and some of this co-workers. Due, in part, to
Dunne’s delay in reporting the incident and the fact that the cap and booster had been destroyed
in due course before the investigation was started, Vulcan management was unable to draw any
actionable conclusions. They passed their investigation results on to the local police and deemed
the incident closed.

Dunne attempted to sketch a pattern of animus from the testimony, arguments, hints, and
inferences outlined above. When I apply the generously lenient standard outlined in National
Cement, I am unable to say that there is no basis to infer that certain Vulcan management
personnel might have held animosity toward Dunne. I cannot conclude, however, that the
inferential evidence supports anything more than the barest of threshold inferences. As discussed
below, this inferential evidence ultimately yields to the strength of the contrary evidence argued
by Vulcan.

The lack of temporal proximity between the disclosure of Dunne’s finding the cap and
booster and Vulcan’s decision to terminate him argues against any bad motive on Vulcan’s part.
Fourteen months passed between Dunne’s report of the “bomb” and his termination, during
which there is no evidence in the record that Vulcan took any untoward action against Dunne.

Dunne sought to show disparity in the way Vulcan treated him vis-à-vis Matt Tripp for
their respective “false” statements to the MSHA inspector. However, the two situations are
substantively different, and to the extent of any overlap between them, Vulcan appears to have
responded to the two situations consistently. At first glance, it appeared that both Dunne and
Tripp had made false statements to the MSHA inspector. Working from that assumption, Vulcan
management immediately suspended both men pending an investigation. (Tr. 196:16-197:7.)
From that point, the facts surrounding the two cases diverge dramatically. First, Dunne readily
admits that the story he told the inspector about why he did not have his brass ID tags was false,
and he knew it was false when he told it. Second, Tripp’s “false” statement turned out to have
been innocently based on his assumption of facts that were determined to be inaccurate. When
the actual facts were compared to Tripp’s assumption, the falsehood melted away. Dunne’s
falsehood was treated differently than Tripp’s because in Dunne’s case Vulcan determined that
he had knowingly made a false statement to the inspector (Tr. 17:12-16), and in Tripp’s case, it
determined in light of all the facts that no false statement had been made. Tripp was reinstated,
while Dunne was terminated for cause.

In sum, the inferential evidence discussed above barely suffices to satisfy Dunne’s burden
to establish a prima facie case of discrimination. The evidence could, conceivably, support an
inference of discriminatory animus. With that, the analytical burden shifts to Vulcan to prove
that it terminated Dunne for conduct unrelated to the protected activity.

C. Vulcan’s Rebuttal

Dunne has produced a prima facie case of discrimination. The evidence establishes that
he engaged in protected activity and supports a plausible inference of discriminatory animus.
However, Dunne fails to convince me that his termination was in any legally significant way
related to his protected activity. As discussed above, the operator may rebut a prima facie case of
discrimination by showing that the adverse action for which the miner seeks relief was not at all
motivated by the miner’s protected activity. Pasula, 2 FMSHRC at 2799-800. A preponderance
of evidence supports the conclusion that there is no connection between Dunne’s protected
activity and Vulcan’s eventual decision to terminate his employment. Vulcan has thus rebutted
Dunne’s prima facie case.

It is impractical, if not impossible, to separate the analysis of Vulcan’s rebuttal of the
prima facie case from that of an affirmative defense. In order to determine whether Dunne’s
termination lacked any meaningful relationship to his protected activity, I must assess the
evidence of Vulcan’s affirmative defense, even though I conclude that Vulcan did not act with
discriminatory animus and, therefore, needs not mount an affirmative defense.

Vulcan argues that it terminated Dunne’s employment on September 16, 2010, because he
knowingly made a materially false statement about why he did not have his brass ID tags on his
person when the MSHA inspector asked to see them. This constituted a violation of company
policies and justified immediate termination. It is undisputed that the story Dunne told the
inspector about his granddaughter taking the tags off his key ring the night before was false. He
also admitted that his ID tags had been missing for some time and that he believed they had been
stolen out of his locker at work. Vulcan provided convincing evidence that Dunne’s falsehood
created a credible potential liability for the company in that management believed that it was a
violation of law to make a false statement to an MSHA inspector (Tr. 170:23-171:19), that
making such a statement constituted a deliberate violation of company policy (Tr. 158:5-20), and
that the false statement could result in an S&S and unwarrantable failure citation. (Tr. 160:12-161:13.) Vulcan disclosed to the MSHA inspector that it believed that Dunne had purposely lied
to him about his ID tags and that they would investigate and determine what they should do about
it. (Tr. 164:19-165:6.) The company investigated Dunne’s falsehood in due course and handled it
in the same manner as Tripp’s apparent falsehood. It determined that Dunne’s actions constituted
a violation of two company personnel policies and were serious enough to justify immediate
termination without any special application of the policies. (Tr. 200:20-201:14.) The evidence
also shows that there is no credible nexus between Dunne’s protected activity and Vulcan’s
decision, 14 months later, to terminate him for making the unprotected false statement.

Not only
has Vulcan proved that Dunne deserved to be fired for making the false statement, it has proved
that the false statement alone justified termination and that it would have terminated him
irrespective of the earlier protected activity. If Vulcan were required to prove an affirmative
defense, this evidence would suffice.

The strongest indicator of a lack of nexus between Dunne’s protected activity and his
eventual firing is the lapse of time. The parties stipulated that Dunne reported finding the blasting
cap and booster on his equipment on July 13, 2009, and that he was terminated on September 16,
2010. (Stip 4 and 5; Tr. 233:17-20.) There is no credible evidence that Vulcan bided its time until
Dunne did something else that would give it a plausible pretext to fire him. Vulcan’s responses to
the report of the cap and booster incident and the ID falsification incident were both reasonably
prompt, carried out in a reasonably thorough and credible manner, and concluded with suitable
transparency. The time between the two events and the finality with which the first was
concluded belie any credible inference of a connection between the two, other than the fact that
Dunne was involved in both.

Dunne’s actions after the discovery of the cap and booster further weaken any possible
inference of bad acting on Vulcan’s part. Dunne implied that he hesitated to report the incident
because someone from management had reportedly commented that if there were any further
problems handling explosives, the entire operation would be shut down. (Tr. 10:22-11:2.) Nothing
in the record corroborates or validates this. Moreover, Dunne’s credibility is compromised by the
evidence of his willingness to expose what he took to be a grand conspiracy by the company when
his personal interest was impacted by a transfer to a less favorable shift, but he actively sought to
prevent management from learning about the cap and booster incident when it happened. One
questions the bona fides of his later complaint when the relative severity of a reassignment is
contrasted with the potential danger of physical injury. One would assume that being the target of
a bomb plot would be a stronger impetus to report the incident than the inconvenience of a
reassignment.

Dunne’s theory contrasts sharply with what Vulcan’s management did in response to the
cap and booster claim and the ID tag incident. Once it learned what happened, Vulcan reacted
promptly to investigate Dunne’s report of finding the cap and booster. Dunne’s delay in reporting
and insistence that Ivan Beans not report the event to management prevented Vulcan from acting
sooner or being able to examine the cap and booster before they were destroyed. Vulcan
conducted interviews of some employees. The evidence does not show that the interviews were
purposely selective. Although Dunne hinted that Vulcan engineered the investigation to keep the
focus off Regional Manager Rob Vogel’s son-in-law Ben Manis, one of two men who Dunne
believed had access to his roof bolter on the previous shift, the evidence in the record fails to
support this theory. When Vulcan was unable to make any actionable conclusions about the cap
and booster incident, it turned its investigation results over to the Bartlett Police Department and,
after conferring with Dunne in a close-out interview, considered the issue closed. (Tr. 233:21-234:8.)

When management learned that Dunne and Tripp had made allegedly false statements to
the MSHA inspector, it took even-handed action to suspend both men pending an investigation.
(Tr. 214:23-216:18.) The ID tag investigation was done with reasonable speed and integrity.
(Tr.197:3-198:19.) Dunne admitted knowingly making a false statement to the MSHA inspector.
Tripp’s statement was ultimately determined to be technically correct although in its original
context it appeared to be false. Tripp was exonerated and reinstated. Within hours of Dunne’s
false statement, management reached the conclusion that it had to disclose the falsehood to the
MSHA inspector while he was still on the premises. The decision to fire Dunne was made by the
Bartlett mine manager, George Taylor

(Tr. 186:6-187:13), in consultation with the Midwest
Division HR department manager, Graham Ault. (Tr. 169:23-170:1; 196:2-15; 201:15-23; 214:23-215:1.) Taylor consulted Vulcan’s established personnel discipline policies, determined that
Dunne’s false statement violated two distinct provisions

(Tr. 223:23-224:20; 226:1-227:12),
confirmed that Dunne’s actions justified immediate termination (Tr. 226:1-9), and notified Dunne
that he was fired. (Tr. 227:13-19.) Since Dunne was a union member, Vulcan also notified a
union official, Dan Opatkiewicz, of its decision. (Tr. 198:20-199:5.) The decision to fire Dunne
had nothing to do with his report of the cap and booster. (Tr. 249:7-13; 266:18-267:2.) It was
based only on the false report to Inspector Kirk. (Tr. 202:3-203:16.)

Considering the weight of the evidence, however, I conclude that Vulcan’s decision to
terminate Dunne was not motivated by or related to his earlier report of the cap and booster
device. There was no connection between Dunne’s protected activity and the ultimate decision to
terminate his employment.

ORDER

Dunne’s complaint of discrimination under section 105(c) (2) of the Mine Act, 30 U.S.C.
§ 815(c) (2) is DISMISSED.

/s/ L. Zane Gill

L. Zane Gill

Administrative Law Judge

Distribution: (Certified Mail)

Peter L. Dunne, 6691 Church Street, Hanover Park, IL 60133

William K. Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1900 K Street NW,
Suite 1000, Washington, DC 20006