Morgan v. Arch of Illinois

Plain-English summary

Gary Morgan reported mine dust conditions and alleged improper dust sampling while working at Arch of Illinois's Kathleen Mine. After the mine closed, Arch did not recall him to an available position at the Conant Mine, where he failed hands-on equipment tests. An ALJ dismissed Morgan's discrimination complaint, finding that the failure and non-recall were not motivated by his protected activity. The Commission majority affirmed the ruling that Morgan's late complaint should not be dismissed as untimely, but vacated the merits decision and remanded because the judge had not adequately addressed management hostility, knowledge of Morgan's complaints, credibility conflicts, or possible disparate treatment in the testing process. Commissioners Riley and Verheggen dissented, arguing that the ALJ's credibility findings were supported by substantial evidence and should have been affirmed.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c) and 30 U.S.C. § 815(c)(2), with Commission Rule 69(a), 29 C.F.R. § 2700.69(a)
• Outcome: The ALJ's merits decision was vacated and the discrimination case was remanded for further consideration.
• Key point: An ALJ must address record evidence that may undermine credibility findings and show disparate treatment or retaliatory motive before dismissing a Mine Act discrimination claim.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                       December 23, 1999

GARY D. MORGAN :
:
v. : Docket No. LAKE 98-17-D
:
ARCH OF ILLINOIS :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                           DECISION

BY: Jordan, Chairman; Marks and Beatty, Commissioners

   This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (1994) (“Mine Act” or “Act”). Miner Gary Morgan seeks review of the decision by
Administrative Law Judge Avram Weisberger dismissing a discrimination complaint against
Arch of Illinois (“Arch”) brought pursuant to section 105(c) of the Act, 30 U.S.C. § 815(c).1

   1
       Section 105(c) of the Act provides, in pertinent part:

              (1) No person shall discharge or in any manner discriminate
              against or . . . otherwise interfere with the exercise of the statutory
              rights of any miner . . . in any coal or other mine subject to this Act
              because such miner . . . has filed or made a complaint under or
              related to this Act, including a complaint notifying the operator or
              the operator’s agent . . . of an alleged danger or safety or health
              violation in a coal or other mine, . . . or because of the exercise by
              such miner . . . of any statutory right afforded by this Act.

              (2) Any miner . . . who believes that he has been discharged,
              interfered with, or otherwise discriminated against by any person in
              violation of this subsection may, within 60 days after such
              violation occurs, file a complaint with the Secretary alleging such
              discrimination.

              (3) . . . If the Secretary, upon investigation, determines that the
              provisions of this subsection have not been violated, the
              complainant shall have the right, within 30 days of notice of the

Page 2

20 FMSHRC 571 (June 1998) (ALJ). For the reasons that follow, we vacate the judge’s decision
and remand for further consideration consistent with this decision.

                                             I.

                           Factual and Procedural Background

   Arch operates a number of underground coal mines, including the Kathleen Mine and

Conant Mine in southern Illinois. Id. at 571. Gary Morgan, a miner with more than 25 years
experience in various jobs, worked at the Kathleen Mine from 1989 until being laid off in July
1995, when the mine closed. Id. Morgan’s primary jobs were operating the scoop and driving a
ram car, and he filled in for other miners at lunch break or during overtime on the roof bolter and
continuous miner. Id.

   During Morgan’s tenure at the Kathleen Mine, he made frequent complaints to his

immediate foreman, Ben Williams, about dust conditions in the mine. Id. According to Morgan,
Williams often ignored his complaints because he was busy loading coal. Id. at 571-72. In
addition to complaining to Williams, Morgan also spoke to the manager of the Kathleen Mine,
Harry Riddle, about dust conditions in the mine. Id. at 572. In 1990, Morgan complained to
Riddle about dust conditions in the mine, and the following day there was some improvement,
but dusty conditions later returned. Id.

    In 1994, Morgan observed dust pumps being turned off and dust intake hoses being

placed under miners’ lapels during periods of high dust at the mine. Id. Morgan complained to
his supervisor Williams and then to his union safety committeeman, Jasper Stirsman, about the
way dust sampling was done at the Kathleen mine. Id. Stirsman eventually reported the problem
to the local office of the Department of Labor’s Mine Safety and Health Administration
(“MSHA”). Id. Around August 1994, mine manager Riddle met with Williams’ crew, and
during the meeting Morgan indicated that he was the one who had reported the violation. Id. at
572, 579. At the meeting, a confrontation occurred between Morgan and the miner who had
reportedly turned off the dust pump. Id. at 572. Riddle ordered the miners to take proper dust
samples and sent them back to work. Id. Sometime after the meeting, Riddle told miners Gerald
Selby and Dan Helmer that Morgan would never work for Arch again. Id. at 575; Tr. at 147-48,
153-54.

           Secretary’s determination, to file an action in his own behalf before
           the Commission, charging discrimination or interference in
           violation of paragraph (1).


                                             2

Page 3

   According to Stirsman, at a meeting to resolve dust complaints, Gene Sharp,

superintendent of the Kathleen Mine, stated that he knew that it was Morgan who was causing
the complaints, even though Stirsman had not mentioned Morgan by name. 20 FMSHRC at 572.
On several occasions, Stirsman heard Sharp make derogatory remarks about Morgan. Id.

    In July 1995, Morgan was laid off from the Kathleen Mine when it closed for economic

reasons. Id. at 572. By agreement between Arch and United Mine Workers of America (“the
Union”), Morgan’s name was placed on a panel list from which Arch selected miners by
seniority for job vacancies. Id. at 572, 576. In September 1996, Arch contacted Morgan to take
the tests to qualify for an inby job at the Conant Mine. Id. at 572. Riddle, Williams, and a
number of Kathleen supervisors had previously transferred to the Conant Mine. Tr. 157-58, 186-
88, 296. Morgan’s foreman at the Kathleen Mine, Williams, remarked at a meeting at the Conant
mine held in September that he did not want Morgan on his crew. 20 FMSHRC at 575. Pete
Wyckoff, manager of the Conant Mine, heard Williams say that he did not want Morgan on his
crew, but testified that he did not know why. Id. at 577. Wyckoff supervised both Bob Blaylock,
supervisor of safety, and John Cotter, a shift foreman at Conant, who were involved in testing
applicants at the mine. Id.; Tr. 218, 245, 293.

    Pursuant to the union agreement, miners were required to pass a written test before being

given a hands-on test to qualify for available jobs. 20 FMSHRC at 576. Miners had to pass a
hands-on test on three out of four pieces of equipment in order to qualify for an inby job. Id.
Nearly every miner chose to be tested on the coal hauler, or ram car, and scoop because each of
those pieces of equipment required minimal levels of skill. Id. About 75 to 80 percent of miners
chose to be tested on the roof bolter, which required a higher skill level, while only 20 percent
chose to be tested on the continuous miner, which required the greatest level of skill. Id. As a
miner completed the test on each piece of equipment, a form was completed by the supervisor
administering the test. Tr. 250; Pet. Ex. G.

     Morgan took and passed the written test, which was administered by Cotter. Id. at 572.

Cotter also administered the hands-on test to Morgan. Id. This included tests to operate the ram
car and scoop, which Morgan passed. Id. Prior to the hands-on test on this machinery, Cotter
allowed Morgan time to familiarize himself with the controls and practice with the equipment.
Id. For the next part of the hands-on exam, Morgan tested on the roof bolter. Id. Morgan
testified that Cotter did not allow him time to become familiar with the controls or practice. Id.
As Morgan began bolting, Cotter told Kenny Anheuser, who was assisting Morgan by preparing
the roof bolts and handing them to Morgan as he drilled the holes, to stop helping Morgan
because he was being tested. Id. Morgan completed the test and asked Cotter how he did. Id.
Cotter responded that he did not evaluate the tests but merely recorded information.2 Id. at 572-

73. Cotter stated that he generally does not time miners on drilling and bolting because of the
    varying roof conditions in the mine. Tr. 253-54. For the final component of the hands-on test,

    2
    At trial, Cotter stated that, in fact, he did determine who passed or failed the test but
    that he would not be the one who notified Morgan of the test results. Tr. 263.

                                              3
    

Page 4

Cotter asked Morgan if he wished to be tested on the continuous miner, and Morgan agreed to it.
20 FMSHRC at 573. As with the roof bolter, Morgan was not given time to familiarize himself
with the equipment. Id. Morgan admittedly performed badly on the test when he miscalculated
on the position of the miner and cut too close to the roof. Id.

    Several days later, Morgan contacted Blaylock, supervisor of safety at the Conant Mine

who was also in charge of testing. Id. at 573; Tr. 209. Blaylock told Morgan that he had failed
the hands-on test on the roof bolter. Id. Blaylock stated that Morgan did not change bits, that he
had bent a “roof bolt steel,” and that he had taken too much time. Id.3 Blaylock further told
Morgan that, because he failed the test on the roof bolter, he could not be considered for an outby
position, which required passing tests on two of three pieces of equipment, including the roof
bolter. Id. Blaylock concluded by telling him that, if Morgan could enhance his skill on the roof
bolter, he could be retested. Id. Subsequently, a miner with less seniority than Morgan was
awarded an outby position. Id.

    After Morgan was notified that he failed the test, he filed a grievance with the Union that

was ultimately withdrawn. Tr. 66, 84-85. Thereafter, in July 1997, Morgan filed a
discrimination complaint with MSHA. Following an administrative investigation, MSHA
dismissed Morgan’s complaint. Subsequently, he filed a discrimination action under section
105(c)(3) of the Mine Act with the Commission, and a hearing was held.

   In a pretrial order, the judge rejected a motion to dismiss filed by Arch on the grounds

that Morgan’s discrimination complaint filed with MSHA in July 1997 was untimely. Order at 2
(Feb. 26, 1998).

     On the merits, the judge found that Morgan had clearly engaged in protected activities in

reporting dust conditions to his immediate foreman, Williams, the mine superintendent, Riddle,
and the Union safety committeeman, Stirsman. 20 FMSHRC at 578. The judge also found that
the record was clear in showing that Morgan had suffered an adverse employment action when he
failed the hands-on test and was not recalled at the Conant Mine. Id. In the judge’s view, the
main issue was whether the adverse action was motivated in any part by Morgan’s protected
activities. Id.

    The judge found that Morgan had “many confrontations” with his foreman, Williams,

including arguments over dust sampling. Id. at 579. The judge concluded that Williams bore
animus towards Morgan, at least in part, because of dust complaints. Id. However, the judge
also credited Williams’ testimony that he did not tell Cotter, or anyone else, to fail Morgan on the
hands-on testing. Id. The judge also found that superintendent Riddle was aware of Morgan’s
protected activities and had stated that Morgan would never work at Arch Minerals again. Id.

   3
      Cotter testified at trial that he failed Morgan because he was not “smooth” in operating

the bolter. Tr. at 262.

                                             4

Page 5

     The judge concluded however, that it had not been established that Cotter had any animus

toward Morgan relating to his protected activities, or that he even knew about them before
October 1996, when the adverse actions were taken. 20 FMSHRC at 581. The judge credited
Cotter’s testimony that no one told or suggested to him to fail Morgan, that no one told him to
test Morgan any differently, and that he was not aware that Morgan had made dust complaints to
MSHA or to Arch. Id. The judge determined that Morgan had failed to prove that the adverse
action taken by Arch, acting through Cotter, was in any part motivated by Morgan’s protected
activities. Id. Accordingly, he concluded that Morgan failed to prove that he had been
discriminated against in violation of section 105(c) of the Act. Id.

II.

Disposition

    Morgan’s primary argument on appeal is that substantial evidence does not support the

judge’s findings and conclusions. PDR at 1.4 Morgan notes that the primary issues the judge had
to resolve were the weight to be given to the circumstantial evidence of discrimination and the
credibility accorded to the testimony of Arch’s witnesses. Id. at 3. In support of his position,
Morgan cites several examples of disparate treatment whereby other miners who were tested
were given time to warm up, assisted by a helper, or allowed a retest. Id. at 3-4. Morgan cites to
testimony indicating that the superintendent at the Conant Mine knew of Morgan’s dust
complaints and the animus of his foreman. Id. at 5-7. Morgan notes inconsistencies in roof
bolting testing procedures, particularly as to timing and retesting. Id. at 7-8. Further, Morgan
contends that inconsistencies in Cotter’s testimony as to why he rated Morgan unsatisfactory on
the roof bolter are a basis for discrediting Cotter. Id. at 11-12. Finally, Morgan argues that Arch
improperly withheld during document production the original of the hands-on test that has white-
out over a check mark in a box indicating that Cotter had failed Morgan in running a coal scoop.
Id. at 16-17. Morgan argues that he was prejudiced by Arch’s failure to release the document
prior to trial, and that, more significantly, the document raises questions about Cotter’s
truthfulness and demonstrates that Arch officials at Conant conspired to ensure that Morgan
would fail the hands-on test. Id. at 15-22.

    In response, Arch argues that substantial evidence supports the judge’s decision. Arch

Resp. Br. at 5. Arch emphasizes that the judge based his decision on credibility determinations,
and in particular crediting of Cotter, who administered the test to Morgan, including his denial
that he knew anything about Morgan’s dust complaints. Id. at 5-6. Arch argues that, while the
judge found that Kathleen foreman Williams and superintendent Riddle harbored animus towards
Morgan as a result of his dust complaints, the judge credited Cotter, who administered the test,
and Blaylock, who was in charge of testing at Conant, that they did not know of Morgan’s
complaints and no one told them to fail Morgan. Id. at 5-7. Thus, Arch concludes that Morgan
failed to prove a causal connection between his protected activity and his failure to be recalled as

   4
       Morgan requested that his PDR be accepted as his opening brief.

                                             5

Page 6

a result of the test. Arch Resp. Br. at 8. Finally, Arch contends that the judge erred in not
dismissing Morgan’s complaint as untimely. Id. at 11-12.

   A.      Timeliness of Morgan’s Complaint

     The judge denied Arch’s motion to dismiss Morgan’s complaint on timeliness grounds,

even though it was filed over 10 months after the adverse employment action. He found that
Morgan had shown justifiable circumstances—lack of counsel and pursuit of a grievance over the
failure to be recalled—that excused the late filing and that Arch had not shown that it was
prejudiced as a result. Order at 2 (Feb. 26, 1998).

     Morgan was notified that he failed the test on September 21, 1996. M. Resp. to Mot. to

Dismiss at 3. During that conversation, he informed Blaylock that he would file a grievance
through the Union. Pet. Ex. C at 38. According to Morgan, Blaylock told him to consider that
this was the first step of the grievance process and his grievance was denied. Id. Thereafter, he
raised a complaint with his Union that apparently led to a grievance that was later withdrawn.
Id.; Tr. 84-85. Subsequently, he filed a grievance dated February 9, 1997, in which he grieved
Arch’s recall of a miner with less seniority to an outby job. Pet. Ex.C at 115. That grievance
was eventually withdrawn. M. Resp. to Mot. to Dismiss at 3. Morgan stated that even when his
second grievance was dropped, he continued to pursue his complaint through other
communications with union officials. Pet. Ex. C at 38. He maintains that he was told by a union
official on July 15, 1997 that his appeals were of no avail. Id. Morgan filed his discrimination
complaint on July 29, 1997.

     Morgan argued to the judge that he felt that his rights had been violated, but that he had

initially pursued his complaint through the Union’s grievance procedure. M. Resp. to Mot. to
Dismiss at 4. Morgan further noted that he did not obtain an attorney until sometime later in
pursuing his claims against Arch. Id. (He filed the discrimination complaint against Arch
apparently without the assistance of counsel.) Arch argues that Morgan must have been well
aware of his rights under the Mine Act because he filed his complaint without the assistance of
counsel. A. Mot. to Dismiss at 4.

    Commission case law is clear that the 60-day period for filing a discrimination complaint

under section 105(c)(2), 30 U.S.C. § 815(c)(2), is not jurisdictional. Hollis v. Consolidation
Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff’d mem, 750 F.2d 1093 (D.C. Cir. 1984). A judge is
required to review the facts “on a case-by-case basis, taking into account the unique
circumstances of each situation” in order to determine whether a miner’s late filing should be
excused. Id. Finally, “a miner’s genuine ignorance of applicable time limits may excuse a late
filed discrimination complaint.” Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 13 (Jan. 1984).

   We believe that the judge correctly denied Arch’s motion to dismiss. The delay in filing

was significant, but not out of line with delays in other cases in which the Commission excused
the Secretary from complying with a filing deadline. See Secretary of Labor on behalf of Hale v.

                                              6

Page 7

4-A Coal Co., 8 FMSHRC 905, 905-06 (June 1986) (two year delay); Secretary of Labor on
behalf of Nantz v. Nally & Hamilton Enters., 16 FMSHRC 2208, 2214-15 (Nov. 1994),
overruled on other grounds, Secretary of Labor on behalf of Poddey v. Tanglewood Energy, Inc.,
18 FMSHRC 1315, 1325 (Aug. 1996) (four month delay). In Hale, the Secretary delayed filing a
discrimination complaint for two years after the miner contacted MSHA, while it was
investigating the complaint. 8 FMSHRC at 905-06. However the Commission noted in that case
that there was no evidence of prejudice to the operator as a result of the late filing. This, the
Commission found, was a primary consideration in cases involving late filing. Id. at 908-09;
Nantz, 16 FMSHRC at 2214-15 (failure to meet time limits in sections 105(c)(2) and (3) should
not result in dismissal, absent a showing of “material legal prejudice”).

    In the instant proceeding, there is no evidence that this delay by Morgan in filing his

complaint resulted in prejudice to Arch.5 See Boswell v. National Cement Co., 14 FMSHRC 253,
257 (Feb. 1992) (filing a complaint 12 days late was de minimis and excused where the operator
showed no prejudice in connection to the brief delay); Lizza Indus., 6 FMSHRC at 13 (31-day
delay in filing excused where the operator showed no prejudice). In addition, Morgan proceeded
without benefit of counsel. Morgan’s pursuit of related complaints through the Union indicates
that he was not sleeping on his rights. Accordingly, we affirm the judge’s denial of the motion to
dismiss for failure to timely file a complaint.

   B.      Morgan’s Claim of Discrimination

     The linchpin of the ALJ’s decision in this case is his decision to credit the testimony of

John Cotter, the Conant foreman who was responsible for testing and failing Morgan. The judge
concluded that the decision to fail Morgan was made by Cotter alone (20 FMSHRC at 580) and
that it had not been established that Cotter, “the only agent of Arch to have taken adverse action
against Morgan, had any animus toward Morgan relating to his protected activities, or even knew
of Morgan’s protected activity . . . when the adverse actions were taken.” Id. at 581.

    We have carefully reviewed this record, which is replete with evidence of Arch

management’s hostility towards Morgan and his safety complaints. The evidence portrays a mine
where seemingly everyone — except, according to Arch witnesses, Cotter and Blaylock — knew
about Morgan’s protected activity and the hostility it engendered among his supervisors.
However, when he made his credibility determination regarding Cotter’s testimony, there is no
indication that the judge took into account this evidence of hostility.

   We note at the outset that we are hesitant to disturb a judge’s credibility determinations

on appeal. We are reluctant, however, to affirm a credibility determination that is undermined by
record evidence to the contrary that was not examined by the judge. As explained in detail
below, the cumulative force of this evidence leads us to the conclusion that the judge’s credibility

   5
      Arch argued in its post-hearing brief to the judge that “general prejudice . . . should be

inferred.” A. Post-Hearing Br. at 13.

                                              7

Page 8

findings must be reexamined.

    We begin with the well-established principles of analysis of a discrimination case under

the Mine Act. A complainant alleging discrimination establishes a prima facie case of prohibited
discrimination by presenting evidence sufficient to support a conclusion that the individual
engaged in protected activity and that the adverse action complained of was motivated in any part
by that activity. Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (Apr. 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. Robinette, 3 FMSHRC at 818 n.20. 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
for the unprotected activity alone. Id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-
Robinette test).

   With regard to Morgan’s prima facie case of discrimination, the record clearly shows that

he engaged in the protected activity of reporting dust conditions at the Kathleen Mine, and the
judge so found. 20 FMSHRC at 578. Further, he was the victim of adverse employment action
when Arch refused to recall him. Id. The pivotal issue, then, was whether a nexus existed
between Morgan’s protected activity and Arch’s refusal to rehire him.

    As the Commission has long noted, “[d]irect evidence of motivation is rarely

encountered; more typically, the only available evidence is indirect. . . . ‘Intent is subjective and
in many cases the discrimination can be proven only by the use of circumstantial evidence.’”
Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov.
1981) (quoting NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965)). Some of
the more common circumstantial indicia of discriminatory intent include knowledge of the
protected activity, hostility or animus towards it, coincidence in time between the adverse action
and the protected activity, and disparate treatment of the complainant. Chacon, 3 FMSHRC at
2510. Although the judge acknowledged these principles (20 FMSHRC at 578-79) when he
accepted Cotter, Riddle and Williams’ testimony that neither told Cotter to fail Morgan, he
emphasized, in crediting each of their statements, that there was no direct evidence impeaching
or contradicting their testimony. Id. at 579-80. What he failed to consider, however, was that the
record contains abundant circumstantial evidence that calls their assertions into question.6

   6
       Although the absence of direct contradictory evidence is relevant, it is not dispositive.

In fact, “[t]he Commission has made clear that such direct evidence is rare and that
discriminatory intent may be established by the kind of indirect evidence involved here.”
Secretary of Labor on behalf of Price & Vacha v. Jim Walter Resources, Inc., 14 FMSHRC
1549, 1555 (Sept. 1992) (rejecting contention that discrimination must be established by direct

                                              8

Page 9

   We do not lightly question the judge’s credibility determinations in this case. We

recognize the principle that a judge’s credibility determinations are entitled to great weight and
may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept.
1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has
recognized that, because the judge “has an opportunity to hear the testimony and view the
witnesses[,] he [or she] is ordinarily in the best position to make a credibility determination.” In
re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov.
1995) (“Dust Cases”) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), aff’d
sub nom. Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998).
Nonetheless, we have recognized that there are exceptions to this general rule. Id. at 1881 n. 80.
“Credibility involves more than a witness’ demeanor and comprehends an overall evaluation of
testimony in the light of its rationality or internal consistency and the manner which it hangs
together with other evidence.” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2586, at 578-79 (2d ed. 1995). Accordingly, we have determined that one such
exceptional circumstance occurs when a credibility finding is contradicted by the record
evidence. Dust Cases, 17 FMSHRC at 1881 n.80.

    In Consolidation Coal Co., 11 FMSHRC 966, 974 (June 1989), for example, the

Commission credited the testimony of a witness which the judge had summarily dismissed as
“not conclusive.” Id. We noted in that case that “[w]hile we have previously stated that we do
not lightly overturn a judge’s credibility findings and credibility resolutions, neither will we
affirm such findings if there is no evidence or dubious evidence to support them.” Id.

    Here, Cotter’s assertion that mine management never talked to him about Morgan is

suspect in light of other compelling record evidence. The record shows, and the judge found,
that Morgan made numerous dust complaints and that Arch management, including his foreman,
Williams, and the superintendent at the Kathleen Mine, Riddle, were well aware of his role. 20
FMSHRC at 579. Further, the record shows that Arch reacted in a hostile manner to Morgan’s
protected activity. Hostility towards protected activity — sometimes referred to as ‘animus’ — is
another circumstantial factor pointing to discriminatory motivation. Chacon, 3 FMSHRC at
2511 (citing NLRB v. Superior Sales, Inc., 366 F.2d 229, 233 (8th Cir. 1966)). In this case, there
is no question that Arch supervisors at the Kathleen Mine were angry at Morgan for his vigorous
pursuit of dust complaints. 7

evidence.) It is not clear from the judge’s emphasis on “direct” evidence in his decision whether
he recognized this principle.
7
The possibility that Arch management was capable of retaliatory action is supported
by the testimony of three Arch miners who testified under subpoena. Testimony of Dennis
Harrison, Tr. 109 (“I’d like to stay out of this, just repercussions possibly down the road.”);
testimony of Stanley Warden, Tr. 128-29 (“I feel that being here today would jeopardize my
chances of passing the test for employment.”); testimony of Gerald Selby, Tr. 139-40 (“I’m just
afraid for . . . me standing up for my rights, that — that they might classify me as a troublemaker,

                                             9

Page 10

     Perhaps the most compelling testimony on this point is that of miners Selby and Helmer.

Selby testified that a few days after the August 1994 meeting with mine manager Riddle, he
asked Riddle about Morgan and the dust samples and Riddle stated “Gary Morgan will never
work in an other Arch Minerals mines again (sic).” 20 FMSHRC at 579. Helmer corroborated
this testimony. Id. at 579-80. Riddle, not surprisingly, denied this remarkable statement of
hostility at trial. Id. at 580.8

    The judge appears to have credited Selby and Helmer on this point. Id. at 580. However,

he failed to factor this finding into his analysis of whether Cotter was truly oblivious to the mine
manager’s hostility towards Morgan. Specifically, since he credited the miners’ testimony that
Riddle made this remark, the judge should have considered this in assessing the credibility of
Riddle’s testimony that he did not ask or tell Cotter, or Wyckoff, his boss, to fail Morgan. See
Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984) (finding ALJ
credibility determination unreasonable when witness testimony was not consistent with his
affidavit nor with testimony of other witnesses); NLRB v. Mt. Vernon Tel. Corp., 352 F.2d 977,
980 (6th Cir. 1965) (questioning trial examiner’s credibility determination, in part, because he
had not credited the witness on other aspects of his testimony). Additionally, the judge
discredited both Williams’ and Riddle’s testimony that Riddle was not aware of Morgan’s
complaints about dust violations. 20 FMSHRC at 579. Although knowledge of protected
activity is an accepted indicia of discriminatory intent (Chacon, 3 FMSHRC at 2510), the judge
failed to factor management’s discredited testimony regarding knowledge into his subsequent
definitive credibility determinations.

    The judge also credited the testimony of Williams, the section foreman, that he did not

tell Cotter to fail Morgan. 20 FMSHRC at 579. Although he acknowledged Williams’
statement that he did not want Morgan in his unit and found that Williams had some animus
towards Morgan, due in part to his protected activity, he nonetheless accepted Williams’
testimony because it was not directly contradicted or impeached. Id. As with the Riddle
credibility determination, in crediting Williams’ testimony on this point the judge appears to
have failed to look at the entire body of evidence regarding his hostility towards Morgan.
Williams’ dislike of Morgan was so well known that it became the subject of jokes by several
miners, who kidded Williams about the possibility that Morgan would be rehired onto Williams’
section. Tr. 120-21, 170.

   The credibility of the operator’s witnesses’ testimony that none of them alerted Cotter

about Morgan is further drawn into question by the testimony of the superintendent at the Conant

also.”). See also testimony of Harrison, Tr. 123-24 (“[Morgan’s failing the test] [d]idn’t surprise
me. I-I felt that [Morgan] was gonna flunk before he even took the test . . . [A]fter the report of
the violations over at Kathleen Mine, I stated to Gary that he’d never work for another Arch
mine.”)
8
He also denied it in his interview with the MSHA investigator. Pet. Ex. C at 10.

                                            10

Page 11

Mine, Wyckoff. Wyckoff testified that when he was presented with a list of panel applicants for
employment at the Conant Mine, he usually tried to talk to their ex-supervisors, and that there
were several ex-Kathleen supervisors at his mine. Tr. 295-96.9 He also admitted that he attended
a meeting at which Williams stated he did not want Morgan on his crew. Tr. at 296. Wyckoff
stated, however, that he did not recall making any response or follow-up to Williams’ criticism.
Tr. 296-97.

    Management witnesses insisted that they barely communicated to each other about this

admittedly assertive miner. However, the record reflects that many of these individuals were
working the same shift at this relatively small mine. Pet. Ex. C at 5 (mine has approximately 127
underground and 8 surface employees split into three shifts); Tr. 187 (Riddle worked on A crew);
Tr. 243 (Cotter worked on A crew). The Commission has previously held that the small size of a
mine supports an inference that an operator knew of a miner’s protected activity. Secretary of
Labor on behalf of Hyles v. All Am. Asphalt, 21 FMSHRC 119, 130-31 (Feb. 1999). See also
Chauffeurs, Teamsters & Help., Local 633 v. NLRB, 509 F.2d 490, 497 (D.C. Cir. 1974); Famet
Inc. v. NLRB, 490 F.2d 293, 295 (9th Cir. 1973).

    We are unable to determine whether this backdrop of knowledge of, and hostility

towards, Morgan’s protected Mine Act activities was taken into account when the judge credited
Cotter’s testimony that not one of these management officials ever approached him about
Morgan. Before a judge credits any testimony, he must reconcile all record evidence that is
inconsistent with that conclusion. In reviewing a judge’s credibility determination, we may
“‘refuse to follow [it] where it conflicts with well supported and obvious inferences from the rest
of the record. Such refusal is particularly justified where the testimony in question is given by an
interested witness and relates to his own motives.’” NLRB v. Elias Bros. Big Boy, Inc., 327 F.2d
421, 425-26 (6th Cir. 1964) (quoting NLRB v. Pyne Molding Corp., 226 F.2d 818, 819 (2nd Cir.
1955)).

     As the Fourth Circuit has noted, “administrative findings based on oral testimony are not

sacrosanct.” Breeden v. Weinberger, 493 F. 2d 1002, 1010 (4th Cir. 1974). The record evidence
in this case portrays a mine where managers did not hesitate to express their hostility towards
Morgan and his safety complaints. We simply cannot affirm a credibility determination that
ignores extensive record evidence that tends to call that finding into question. In addition, we
have rejected the contention that a discharging supervisor’s non-discriminatory intent shielded
the operator from a finding of discrimination, when other involved supervisors demonstrated
animosity towards the protected activities of the affected miners. Price v. Vacha, 14 FMSHRC

   9
      The record reveals that hostility towards Morgan’s safety complaints reached Gene

Sharp, the Kathleen superintendent who stated that “[d]amn Morgan is the one that’s causing the
complaint,” and that Sharp made derogatory remarks about Morgan at a safety committee
meeting and in the bathhouse. Tr. 17, 19. The record also revealed that Wyckoff was acquainted
with Sharp. Tr. 300. Although the judge mentioned these incidents, he did not address their
significance.

                                            11

Page 12

at 1557. Although we will overturn a judge’s credibility determination only in rare
circumstances, we will not rubberstamp them. See NLRB v. Motorola, Inc., 991 F.2d 278 (5th
Cir. 1993). We agree with the approach of the Seventh Circuit, which has stated:

           there are certain times when a court must overrule [an ALJ
           credibility] determination by examining evidence in the record that
           detracts from the ALJ’s findings. [citation omitted]. Otherwise an
           ALJ would have to be upheld whenever there was the slightest
           support in the record, and our standard of review would be
           transformed from substantial evidence to scintilla evidence.

Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).

     We dispute our dissenting colleagues’ accusation that we are “drawing inferences in the

absence of evidence.” Slip. op. at 17. First, we have deliberately avoided drawing any
inferences from the evidence ourselves. Instead, we are remanding this case to the judge. As the
trier of fact, he will examine the evidence we have highlighted in this opinion. He will then
decide whether to draw any inferences concerning Cotter’s knowledge of Morgan’s protected
activity and the hostility of other members of Arch’s hierarchy towards Morgan. Nor are we by
any means suggesting that inferences may be properly drawn in the absence of supporting
evidence. To the contrary, we have identified a wide array of evidence that we are simply asking
the judge to consider in revisiting his credibility determinations. Accordingly, we remand this
matter to the judge, for consideration of the additional evidence cited above in making his
credibility determinations.

    The judge’s decision is flawed in another respect. Absent from his decision is any

analysis of the hands-on test as a possible pretext for refusing to reinstate Morgan or whether
Morgan was the victim of disparate treatment in application of the test. The judge did not
address Morgan’s testimony that he was not given time to warm up on the bolter, that he was
denied the assistance of a helper, and that he did not bend a steel. See 20 FMSHRC at 572-73.
In contrast, Dennis Harrison, a former pit committeeman at the Kathleen Mine, testified that
when he took the test for an inby position he was given 25 minutes to familiarize himself with
the equipment. Id. at 573. When the test began, a helper prepared the roof bolts and handed
them to him. Id. The roof bolter lost power during the test, thereby preventing him from
completing the test. Id. After testing Harrison on the scoop and hauler, Blaylock told him that
he did not have time to further test him on the roof bolter but that he had passed and should
report to work. Id. Similarly, when Lester Furlow tested successfully for an inby position in
1993, he was given 30 to 45 minutes to warm up. Id. at 574. During the test, he broke the steel
and the clip holding the bit on the steel which a helper showed him how to change. Id. In
addition, Stanley Warden testified that he helped several individuals when they were tested on
the roof bolter. Tr. 130. Blaylock also testified that applicants are given a warm up period. Tr.
215.

                                            12

Page 13

    The judge also failed to acknowledge or address inconsistencies in the record as to

whether Cotter timed miners when they were tested on the roof bolter (compare Tr. at 272-74
with Pet. Ex. G at 6-7, and compare 20 FMSHRC at 573 with id. at 577), or Cotter’s inability to
explain why he gave Morgan “nonsatisfactory” ratings on aspects of the roof bolter test (Tr. 273-
75). He also failed to resolve the conflicting testimony of Morgan (who claimed he had no
warm-up time or helper, 20 FMSHRC at 572) and Cotter (who stated that he always allowed a
warm up period, and that he always permitted a roof bolt helper to help applicants assemble
bolts, Tr. 247, 25410). If the judge had resolved this conflict in Morgan’s favor, he should have
considered this when assessing the credibility of Cotter’s testimony that nobody told him to fail
Morgan.

     The judge could have relied on Morgan’s testimony as evidence of disparate treatment

(see, e.g., Chacon, 3 FMSHRC at 2512-13), or inconsistent treatment of Morgan versus other
similarly laid-off miners who were tested. Accommodations given to other miners but not
afforded to Morgan may be evidence of discriminatory treatment. Price and Vacha, 14
FMSHRC at 1559. Morgan’s pretextual claim is bolstered by the fact that only 3 out of 20
Kathleen mine applicants failed the test at Conant (Pet. Ex. C at 15), and that Morgan had two to
three years of roof bolting experience at the time he was tested. Tr. 81-84. The judge’s apparent
failure to consider this evidence also constitutes grounds for a remand. See Secretary of Labor
on behalf of Hyles v. All Am. Asphalt, 18 FMSHRC 2096, 2102 (Dec. 1996).11

    Based on the foregoing, we vacate the judge’s decision and remand the case to enable the

judge to more fully consider the record evidence that he did not address. Mid-Continent
Resources, Inc., 16 FMSHRC 1218, 1222-23 (June 1994) (vacating and remanding when judge
failed to adequately analyze and weigh the relevant testimony of record, make appropriate
findings, and explain the reasons for his decision); Commission Rule 69(a), 29 C.F.R.
§ 2700.69(a) (requiring a judge’s decision to “include all findings of fact and conclusions of law,

   10
      Morgan testified that when he started installing bolts, the helper began to pick them up

and hand them to him, until Cotter explicitly informed him that he was not permitted to help
Morgan. Tr. 56.
11
Commissioner Marks believes that, in addition, the judge should have at least
considered the use of white-out on the original of the test document (Pet. Ex. G at 12), which was
not produced during discovery and appeared for the first time late at trial. Morgan argues (PDR
at 17-18) that the white-out indicates that the test results were altered after he completed the test.
The judge does not address this assertion. Moreover, the white-out must be evaluated with
respect to Cotter’s overall credibility. See Cotter’s testimony at Tr. 260, 275-76, 285-90. On
remand, the white-out issue should be fully examined. In addition to the white-out, the hands-on
test results also reflects the handwriting of two different persons and the ink of three different
pens. See Pet. Ex. G at 4, 10. The record is silent as to any explanation regarding those
occurrences.

                                             13

Page 14

and the reasons or bases for them, on all the material issues of fact, law or discretion presented by
the record”).

III.

  For the foregoing reasons, we vacate the decision of the administrative law judge and

remand the case for further consideration.

                                          ________________________________
                                          Mary Lu Jordan, Chairman




                                          ________________________________
                                          Marc Lincoln Marks, Commissioner




                                          ________________________________
                                          Robert H. Beatty, Commissioner




                                             14

Page 15

Commissioners Riley and Verheggen, dissenting:

    We are not willing to follow the lead of our colleagues and take the extraordinary step of

vacating the judge’s credibility findings in this case. To the contrary, we see no basis for
vacating the judge’s decision on the merits.1 Accordingly, we would affirm the judge’s
determination that Cotter failed Morgan on the hands-on test for nondiscriminatory reasons. We
therefore dissent from Part II.B of our colleagues’ opinion.

    We agree with the majority that the “pivotal issue” in this case is “whether a nexus

existed between Morgan’s protected activity and Arch’s refusal to rehire him” after he failed the
hands-on test. Slip op. at 8. In resolving this issue, the judge credited Cotter’s testimony on the
basis of his demeanor and the lack of contradictory record evidence:

                   The decision to fail Morgan on the bolter test was made by
           Cotter. I observed Cotter’s demeanor and found his testimony
           credible. Also, I note that the record does not contain any direct
           evidence impeaching or contradicting his testimony that he was not
           told by anyone to fail Morgan, that no one suggested that he fail
           Morgan, that no one had told him to test Morgan any differently
           than any other candidate, and that at the time of the test he did not
           know that Morgan had made complaints to MSHA and Arch. I
           thus accept his testimony.

20 FMSHRC at 580. Although Morgan testified that he was the victim of disparate treatment
because he was not given time to warm up and was denied the help of an assistant, the judge
credited Cotter’s denial that anyone told him to fail Morgan or treat him differently from any

   1
       We disagree with Part II.A of the majority’s decision, which states: “the judge

correctly denied Arch’s motion to dismiss” Morgan’s complaint on timeliness grounds. Slip op.
at 6-7. The Commission has held that it “expects a showing of good cause to explain any . . .
delay” in filing a complaint for discrimination or compensation. Farmer v. Island Creek Coal
Co., 13 FMSHRC 1226, 1230 (May 1991). The judge, however, denied Arch’s motion to
dismiss Morgan’s complaint solely because Morgan “apparently did not have the benefit of
counsel until his present attorney filed a Notice of Appearance.” Order at 2 (Feb. 26, 1998). We
find this rationale legally insufficient, and on this question, would have remanded the case to him
for further analysis consistent with Commission precedent.

    We also disagree with the majority’s blanket statement that “Morgan’s pursuit of related

complaints through the Union indicates that he was not sleeping on his rights.” Slip op. at 7. We
do not believe that the record clearly establishes that Morgan’s grievance had anything to do with
his rights under the Mine Act. This question, too, we would have remanded to the judge to
determine whether Morgan’s grievance was sufficiently related to his later complaint to the
Secretary so as to constitute, in whole or part, good cause for his delay in filing his
discrimination complaint. In light of our decision to affirm the judge on the merits, however, any
such remand would be unnecessary.

                                            15

Page 16

other applicant.2 Id.

    The Commission must exercise a considerable degree of deference when reviewing a

judge’s credibility determinations. In re: Contests of Respirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1878 (Nov. 1995), aff’d sub nom. Secretary of Labor v. Keystone
Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). The Commission has noted that “the
general rule [is] that, absent exceptional circumstances, appellate courts do not overturn findings
based on credibility resolutions.” Id. at 1881 n.80. Exceptional circumstances that would
warrant overturning a judge’s credibility findings include where such findings are
self-contradictory, based on irrational criteria, or contradict the evidence. Id. As the Eleventh
Circuit has explained, “[s]ince the ALJ has an opportunity to hear the testimony and view the
witnesses he is ordinarily in the best position to make a credibility determination.” Ona Corp. v.
NLRB, 729 F.2d 713, 719 (11th Cir. 1984). In light of this, the Ona court concluded that “as a
general rule courts are bound by the credibility choices of the ALJ, even if they ‘might have
made different findings had the matter been before [them] . . . de novo.’” Id. at 719 (quoting
Gulf States Mfrs., Inc. v. NLRB, 579 F.2d 1298, 1329 (5th Cir. 1978)).3

     We find no exceptional circumstances or any other basis for overturning the judge’s

credibility resolutions here. The judge’s findings are not self-contradictory or based on irrational
criteria. Furthermore, none of the record evidence contradicts the judge’s credibility findings.
Indeed, in vacating these findings, the majority can point to no single piece of evidence that
contradicts the findings. Instead, the majority bases its ruling on what it sees as a “backdrop of
knowledge of, and hostility towards, Morgan’s protected . . . activities” (slip op. at 11), and the
inferences it is willing to draw from this “backdrop.”

   2
      We also note that Morgan’s experience on the roof bolter, as that on the continuous

miner, was limited to relieving other miners when on lunch breaks or on overtime. 20 FMSHRC
at 571. Morgan admittedly failed the hands-on test on the miner. Id. at 573. We further note
that Morgan believed that he was entitled to a job at the Conant Mine, without regard to his job
skills. Tr. 102.
3
Cf. Brock v. Roadway Express, Inc., 481 U.S. 252, 266 (1987) (“Final assessments of
the credibility of supporting witnesses are appropriately reserved for the administrative law
judge, before whom an opportunity for complete cross-examination of opposing witnesses is
provided.”). See also Secretary of Labor v. Consolidation Coal Co., No. 98-1613, 1999 WL
335777, at *3 (4th Cir. May 27, 1999) (“‘[w]e must defer to the ALJ’s credibility determinations
. . . despite our perception of other, more reasonable conclusions from the evidence,’” (citations
omitted)) (affirming separate opinion of Commissioners Riley and Verheggen in Consolidation
Coal Co., 20 FMSHRC 227, 238-42 (Mar. 1998)); Metric Constructors, Inc., 6 FMSHRC 226,
232 (Feb. 1984) (when judge’s finding rests on credibility determination, Commission will not
substitute its judgment for that of judge absent clear indication of error), aff’d, 766 F.2d 469
(11th Cir. 1985).

                                             16

Page 17

    In considering the evidentiary effect of inferences, the Commission has held that judges

may draw inferences from record facts so long as those inferences are “inherently reasonable and
there [exists] a rational connection between the evidentiary facts and the ultimate fact inferred.”
Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2153 (Nov. 1989). While it is possible that
inferences could have been drawn from the record, it is for the trier of fact to decide between
reasonable inferences. See generally 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2528 (2d ed. 1995). In addition, the effective use of inferences
encompasses the right not to draw them, as well as to draw them, in the appropriate
circumstances.

    Here, in light of direct credited testimony from Cotter (and other Conant officials), the

judge did not credit some of Morgan’s testimony and refused to draw certain inferences from the
record. The judge’s rejection of inferences that are contravened by direct, credited (in several
instances, uncontradicted) testimony is not a basis for vacating his decision. We reject the
majority’s insistence on drawing inferences in the absence of evidence,4 and suggesting to the
judge that he draw similar inferences that are contrary to testimony that he has seen, heard, and
credited. It is for the judge in the first instance, not the Commission on review, to make
inferences and findings based on record evidence. See Mid-Continent Resources, Inc., 6
FMSHRC 1132, 1139 (May 1984).

     In sum, we are not willing to vacate the judge’s explicit credibility rulings. To us, the

majority’s decision appears to be premised upon an assumption that Cotter was not telling the
truth and that the judge was too myopic to see through his deceptive testimony in order to
comprehend what really happened at the Conant Mine. Taking a speculative approach and acting
on little more than a sympathetic hunch, our colleagues sweep away the judge’s thorough review
of the evidence and his credibility findings, a move that lacks support in the record. Instead, the
majority relies on “the cumulative force of [the] evidence” (slip op. at 7-8) without reference to a
single specific piece of evidence that contradicts the judge’s dispositive credibility findings.

   4
       Although our colleagues “dispute” this point (slip op. at 12), their opinion speaks for

itself. For example, they characterize as “suspect” Cotter’s testimony that no Arch management
official ever approached him about Morgan. Slip op. at 9. The inference they appear to believe
and seek to have the judge consider is that Cotter somehow knew about Morgan’s protected
activity, notwithstanding the ample and direct evidence to the contrary.

                                            17

Page 18

    The Commission cannot, and reviewing courts will not, ignore the fact that the trial judge

alone was able to observe the demeanor of Cotter and others on the stand, and is thus uniquely
situated to evaluate the credibility of witnesses. We fear that under the majority’s emotional
approach, the Commission will be all too ready to second guess its judges in future cases,
substituting its judgment for that of a judge. To avoid such confusion and disorder, we would
affirm the judge’s decision here because it is supported by substantial, credible evidence.5

                                         James C. Riley, Commissioner




                                         Theodore F. Verheggen, Commissioner




   5
     In light of our decision, we need not reach the questions raised by the majority

regarding whether the hands-on test was “a possible pretext for refusing to reinstate Morgan or
whether Morgan was the victim of disparate treatment in application of the test.” Slip op. at 12.

                                            18

Page 19

Distribution

Marco M. Rajkovich, Jr., Esq.
Robert I. Cusick, Esq.
Julie M. O’Daniel, Esq.
Wyatt, Tarrant & Combs
250 West Main St., Suite 1700
Lexington, KY 40507

Leonard D. Rice
Attorney at Law
404 South Washington Street
Du Quoin, IL 62832

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041