Linda S. Sparks v. Old Ben Coal Company

Plain-English summary

Linda S. Sparks alleged that Old Ben Coal placed her in a chronic and excessive absenteeism program in retaliation for safety complaints about the steps leading to a gob scraper truck and other workplace conditions. Judge Avram Weisberger found that her safety complaints were protected activity and that placement in the program was an adverse action. He nevertheless found no evidence that Old Ben singled her out or that the placement was motivated by her protected activity, because the program was automatically applied based on the company’s absenteeism criteria. The discrimination complaint was dismissed.

Decision snapshot

• Cited provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed.
• Key point: Protected safety complaints and an adverse employment action did not establish discrimination where the evidence showed the action followed automatic absenteeism-program criteria rather than retaliation.

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


                         June 17, 1996

LINDA S. SPARKS, : DISCRIMINATION PROCEEDING
Complainant :
v. : Docket No. LAKE 95-378-D
: MSHA Case No. VINC CD 95-03
OLD BEN COAL COMPANY, :
Respondent : Central Cleaning Plant Mine

                           DECISION

Appearances: Linda S. Sparks, Pro se, Steeleville, IL,
for the Complainant;
Thomas A. Stock, Esq., Crowell & Moring,
Washington, D.C., and William A. Miller, Esq.,
Zeiger Coal Holdling Company, Fairview Heights,
IL, for the Respondent.

Before: Judge Weisberger

                   Statement of the Case

 This case is before me based upon a Complaint filed by

Linda S. Sparks, pursuant to Section 105(c) of the Federal Mine
Safety and Health Act of 1977 (The Act). In the Complaint,
Sparks alleges, in essence, that Old Ben Coal Company (Old Ben)
unlawfully discriminated against her by placing her in its
Chronic and Excessive Absenteeism Program (“C & E
program”), in retaliation for her having complained about the
condition of steps leading up to the gob scrapper truck that
she had operated. Old Ben filed an Answer. Old Ben
subsequently moved to amend
its Answer, and the motion was granted at the hearing held
on
March 12, 1996. 1

1
 Old Ben also filed a motion for an order compelling Sparks to

fully comply with a previously issued pre-hearing order. At the
hearing, Old Ben was allowed to interview Sparks’ witnesses’ whose

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               Findings of Fact and Discussion

I. 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

 Old Ben operates a central cleaning plant located in Randolf

County Illinois, wherein coal from underground mines is cleaned
and processed. Sparks started to work at this plant on May 22,
1977. Subsequently, on December 27, 1993, she was evaluated by
Robert Cash, the general surface manager, for a position as an
operator of a gob srapper truck (“gob truck”). Sparks, whose
height is only about five feet, had difficulty negotiating the
step to access the cab of the gob truck. The step consisted of a
metal bar suspended by a chain from the truck. According to

identity had not previously been divulged by Sparks.
Accordingly, the motion to comply is moot, and is denied.

 Old Ben also had filed a motion in limine.      At   the   hearing,

Old Ben’s motion in limine was withdrawn.

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Sparks, the step was “a good two and a half, three, four feet”
below the platform of the cab. (Tr. 105). Sparks complained to
Cash, and on subsequent occasions, about her difficulty getting
in and out of the cab and asked that an additional step be
provided. Sparks indicated that Cash responded by telling her
that there was no reason why she could not do the job, and she
became an operator of the gob truck. Sparks continued to
complain about the steps to Cash, and to an MSHA inspector, Gene
Jewell who worked in the Sparta, Illinois, MSHA office. Spark
testified that subsequent to December 27, she had to take several
days off from work because of the difficulty getting up and down
the cab of the truck.

 Sparks indicated that in the period between 1993 and 1995,

she went to the MSHA office in Sparta to make various safety
complaints. Among the safety complaints she made to MSHA were
the following:

 (1) In 1994, Sparks’ shoes and clothes, which had been
 left on the site, became soaked on the 2nd shift when a
 fire in the area was extinguished with water. When
 Sparks reported for work on the 3rd shift, she was
 provided with replacement work shoes that were too
 large and she was unable to work in them;

 (2) The lack of an adequate berm on the gob hill; 2

 (3) the lack of a lock inside the women’s shower which
 had resulted in a construction worker entering the
 women’s shower while Sparks was showering3; and

 (4) that a boss had threatened her life.




2
 According to Sparks she also had communicated this concern to

her supervisor, Larry Seacrest, at a safety meeting at the end of
February 1995.
3
According to Sparks, when she reported this incident to Cash,
he laughed, and told her that she should have chased the intruder
out with a broom.

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Page 4

 I find that all the above complaints constituted protected

activities.

 On January 5, 1995, while descending from the cab of the gob

truck, Sparks fell and injured her right breast and her left
wrist. She described these injuries as being very painful. She
subsequently underwent four surgeries, and was told by her
treating physician not to work. Sparks was off from work for
28 days. I find that all these actions were within the scope of
protected activities.

 B.   Adverse Action and Motiviation.

 On or about February 10, 1995, Old Ben notified Sparks that

she was being placed in step 1 of the C & E program. The notice
advised her that failure to maintain an absentee rate below
9 percent for the next 12 months may result in her being moved
to the next step of the C & E program i.e., a one day suspension
without pay, and that continued cronic and excessive absentism
may result in suspension with intend to discharge. Since
placement in the C & E program could result in loss and pay, I
find that placement in this program constituted an adverse
action. It must next be determined whether there was any nexus
between the engagement of Sparks in protected activity, and her
being placed in the C & E program.

 According to Bill Patterson, who was the general manager of

operations at the central cleaning plant in the period at issue,
the C & E program was instituted about 10 years ago. According
to the program, if the rate of an employee’s noncon- tractual
absence4 exceeds 9 percent, and there have been at least two
occurrences during the previous six months, then an employee is
to be placed in the program and given a written warning. The C &
E program further provides as follows: “If an employee works one
year from the date of his or her last step with an absentee rate
below 9 percent, this employee will be removed from the program.”
(Exhibit R-3, par. 8).

 4
  In essence, non-contractual absence is defined in the C & E

program as absences due to, inter alia, injuries, but that
contractual vacation, and personal and sick leave are excluded.

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 From December 16, 1993 thru December 29, 1994, Sparks did

not have any absences from work as defined in the C & E program.
On December 30, 1994, Sparks was absent, as defined in the C & E
program, when she attended the funeral of a fellow miner. In
addition, commencing January 5, 1995, she was absent, as defined
in the C & E program, for 28 days. As defined in the C & E
Program, this constituted an absentee rate of 12.75%.

 In essence, Sparks alleges that her absence subsequent to

January 5, 1995, was not her fault, as it was caused by her
injury, which was in turn was caused by an unsafe step leading up
to the gob truck. Patterson, who was responsible for all actions
taken against emplyees under the C & E program, and Cash, who
administered the program relative to Sparks, indicated that her
placement in the program was automatic, and would have been taken
regardless of her safety complaints.

 It is not for this forum to decide the propriety or

legality of the C & E program, nor whether it constituted sound
management. Nor is this the proper forum to decide whether there
were extenuating circumstances which, based upon principles of
fairness, should have excluded Sparks from being placed in the
C & E program.

 There is no evidence that Sparks received any disparate

treatment in being placed in the C & E program based upon her
protected activities. There is no evidence that Sparks had been
singled out, or that other employees with similar absentee rates
were excluded from the program. I find that Sparks had not
established that her placement in the C & E program was not based
upon Old Ben’s application of the C & E program criteria to her
absentee rate, but rather was motiviated, in any part, by her
protected activities. I find that Sparks has not established any
causal nexus between her protected activities, and the action
taken by Old Ben. For these reasons, I find that Sparks has
failed to establish that she was discriminated against in
violation of Section 105(c) of the Act.

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II. ORDER

 It is ORDERED that the Complaint be DISMISSED, and that this

case be DISMISSED.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Linda S. Sparks, 607 West Chardon, Steeleville, IL 62288
(Certified Mail)

Thomas A. Stock, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2595 (Certified Mail)

William A. Miller, Esq., Zeigler Coal Holding Company,
50 Jerome Lane, Fairview Heights, IL 62208 (Certified Mail)

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