Secretary of Labor obo Barbara E. Cassidy v. Consol Pennsylvania Coal Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

Barbara Cassidy, a section supervisor at Consol's Enlow Fork Mine, raised concerns about shortages of personnel rides, emergency transportation, and roof-bolting practices. Management counseled her after two safety emails and later imposed an unpaid suspension following a loud disagreement with her supervisor. Judge John Kent Lewis found that the safety complaints and related conduct were protected under section 105(c), and that the counseling sessions and suspension were adverse actions motivated by those activities. He rejected Consol's claim that it would have imposed the same discipline solely for the argument, citing the suspension letter, management hostility, timing, disparate treatment, and an inadequate investigation. Consol was ordered to pay $4,265.04 in lost wages, $255.90 in lost retirement contributions, and interest, expunge the suspension, and post the decision for 60 days. The judge also assessed a $20,000 civil penalty.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1); 30 C.F.R. §§ 75.360 and 100.3
• Outcome: Discrimination was found, make-whole and posting relief was ordered, and a $20,000 civil penalty was assessed.
• Key point: A safety complaint may be protected even when it does not allege a violation of a mandatory safety standard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF CHIEF ADMINISTRATIVE
LAW JUDGE

7 PARKWAY CENTER, SUITE
290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240
/ FAX: 412-928-8689

SECRETARY OF LABOR

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA),

on behalf of BARBARA E. CASSIDY,

Complainant,

v.

CONSOL PENNSYLVANIA COAL

COMPANY LLC,

Respondent

DISCRIMINATION PROCEEDING

Docket No. PENN 2020-0101

MSHA Case No.: PITT-CD-2020-02

Mine: Enlow Fork Mine

Mine ID: 36-07416

DECISION & ORDER

Appearances:              Brian P. Krier, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington, VA, Representing the Secretary
of Labor

Nicholas J. Bell & Erin
J. McLaughlin, Buchanan Ingersoll Rooney, Pittsburgh, PA, Representing the
Respondent

Before:                                   Judge
Lewis               

This case is
before me upon a complaint of discrimination brought by the Secretary of Labor
on behalf of Barbara E. Cassidy (“Complainant”), a miner, against Consol
Pennsylvania Coal Company LLC (“Respondent”), pursuant to Section 105(c) of the
Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c).

The Secretary of
Labor, on behalf of Barbara E. Cassidy, alleges that Cassidy was discriminated
against in violation of her statutory rights after engaging in protected
activities. A hearing was held via Zoom Video Conferencing on February 03, 2021-February
04, 2021, at which the parties presented testimony and documentary evidence.
After the hearing, the parties submitted Post Hearing Briefs and Reply Briefs,
which have been fully considered. [1]

STIPULATIONS

The parties
submitted stipulations as a joint exhibit. The following joint stipulations
represent those where there is agreement:

1. Respondent is an “operator” as
   defined in Section 103(d) of the Federal Mine Health and Safety Act of 1977, as
   amended (hereinafter, “the Mine Act”), 30 U.S.C. § 802(d).

Respondent is a “person” subject to Section 105(c) of the Mine
Act, 30 U.S.C. § 815(c).

The operations of Respondent at the Enlow Fork Mine are subject
to the jurisdiction of the Mine Act.

This proceeding is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and its designated Administrative
Law Judge pursuant to Sections 105 and 113 of the Mine Act, 30 U.S.C. §§
815 and 823.

At all relevant times, Complainant Barbara E. Cassidy was a
“miner” as defined in Section 3(g) of the Act, 30 U.S.C. § 802(g).

Complainant was employed as an Assistant Section Supervisor at
Respondent’s Enlow Fork Mine from June 18, 2007 to May 11, 2008, and a
Section Supervisor from May 12, 2008 to August 31, 2020.

On December 19, 2019, Respondent suspended Complainant for ten
(10) days without pay, effective January 2, 2020.

As a result of her ten-day suspension, Respondent reduced
Complainant’s pay by a total of $4,265.04.

Respondent paid Complainant a biweekly salary of $4,265.04
($110,891.04 annually) at the time of her suspension.

Complainant Ms. Cassidy participated in the Company-sponsored
health and welfare benefit plans, including medical/prescription, dental
and vision, life insurance and disability. Other benefits included 401(k)
company match (up to 6%).

As a result of her ten-day suspension, Respondent reduced the
401(k) company match contribution to Complainant by $255.90.

Payment of the total proposed penalty of $15,000.00 in this
matter will not affect Respondent’s ability to continue in business.

MSHA's Data Retrieval System, publicly available at http://www.msha.gov/drs/drshome.htm,
accurately sets forth:

the size of the Respondent in production tons or hours worked
per year;

the size, in production tons or hours worked per year, of the
mine;

the total number of assessed violations for the time period
listed; and

the total number of inspection days for the time period listed
therein.

14. MSHA’s Penalty
    Assessment accurately sets forth:

a.     
the size of the
Respondent in production tons or hours worked per year;

b.     
the size, in
production tons or hours worked per year, of the mine;

c.     
the total
number of assessed violations for the time period listed; and

d.     
the total number of
inspection days for the time period listed therein.

Ex. J-1.

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

The
findings of fact are based on the record as a whole and my careful observation
of the witnesses during their testimony. In resolving any conflicts in the
testimony, I have taken into consideration the interests of the witnesses, or
lack thereof, and consistencies, or inconsistencies, in each witness’ testimony
and between the testimonies of the witnesses. In evaluating the testimony of
each witness, I have also relied on his or her demeanor. Any failure to provide
detail as to each witness’ testimony is not to be deemed a failure on my part
to have fully considered it. The fact that some evidence is not discussed does
not indicate that it was not considered. See Craig v. Apfel, 212 F.3d
433, 436 (8 th Cir. 2000) (administrative law judge is not required
to discuss all evidence and failure to cite specific evidence does not mean it
was not considered).

Background:

Barbara E. Cassidy worked for a
total of 27 years in the mining industry at Matthews Mine, the Mapel Creek
Mine, and with Consol Energy at the Enlow Fork Mine. [2]
Tr. 19, 24-25. She worked at Enlow Fork for 13 years and 2 months as a section
foreman, which is a salaried management position. Tr. 19. Her duties in this
position varied from being assigned to a section to being assigned as belt
foreman or in charge of transportation. Tr. 19-20. Cassidy’s duties with regard
to transportation involved her going underground 30 minutes before the official
start of the shift and organizing the rides in order to transport crew to their
respective sections. Tr. 20. In performing these tasks, she communicated with
the shift foreman and assistant shift foreman from the previous shift. Tr. 20.
It was her responsibility to ensure that new crews were at their areas before
relieving the previous crews, as well as that the fire bosses and examiners
were at their examination areas. Tr. 20-21.

As section foreman, Cassidy had
numerous safety responsibilities, including answering safety questions from her
crew and conducting pre-shift examinations. [3] Tr. 27-28. During a
pre-shift examination, one examines the mine for gases, violations of mandatory
safety standards, and other dangers to ensure safety where miners work and
travel. Tr. 28. The pre-shift examiner then provides notice and warning to the
upcoming shift of what they might encounter. Tr. 29.

Cassidy often raised safety
concerns with management, including to her immediate supervisor, which at the
time was Assistant Mine Foreman David Knipple, and the belt foreman. [4]
Tr. 23, 29. There were certain issues that Knipple could not resolve for
Cassidy, so she would take the matter to one of three assistant mine foremen.
Tr. 33. Usually, she would take matters to Assistant Mine Foreman Don Blumetti,
because he was the most accessible. Tr. 33. If Cassidy needed to raise an issue
with the top person, she would bring the matter to Mine Foreman Michael
Koffler. Tr. 32, 33. Cassidy was not aware of any company rules concerning how
to raise safety concerns or rules against the use of emails to report such. Tr.
30.

Enlow Fork Mine, where Cassidy
worked, is a very large mine, with six active sections, two longwalls, and two
portals. The mine measured a distance of almost 20 miles from the Archer Portal
to the Oak Springs bottom, and almost 15 miles to Pleasant Grove Portal. Tr.
25, 189-190. On average, it took the G2 crew one hour and 15 minutes to arrive
to relieve the previous crew. Tr. 190. Until the fall of 2019, there were
approximately 512 hourly employees and 275 salaried employees at the mine. Tr.

209. Since that time, the numbers have fluctuated significantly. Tr. 209.
     Cassidy was the first female foreman that Consol ever hired and the only one to
     work for the company at the time of hearing. Tr. 26. When Cassidy started
     working for Consol, there were six female hourly employees. Tr. 26.

The September 13, 2019 Email:

Cassidy was the only foreman in
charge of transportation, and several fire bosses had come to her complaining
that there were transportation issues with getting their crews to their
sections. Tr. 34-35. Mine examiners and fire bosses reported to Cassidy that a
lack of rides impacted their ability to conduct exams and correct violations
observed during their exams. Tr. 189. Cassidy had emailed Koffler seven months
prior in February about the lack of rides, and Koffler responded that they were
looking into the matter. Tr. 50. However, after seven months, the problem had
not been addressed. Tr. 195.

Therefore, at approximately 9:15 am
on August 28, 2019, Cassidy went from the Archer to the Pleasant Grove Portal
to Koffler’s office to discuss the issue. Tr. 35. Koffler was not in his
office, so Cassidy left and returned the following day. Tr. 35. When he was
still not in his office, she left a note on his desk indicating that she wanted
to talk to him about the ride situation at the Archer Portal, and that due to
her work schedule the best way to get ahold of her was via email. [5]
Tr. 35-36. After a week passed with no response from Koffler, Cassidy tried
stopping at his office again, but again he was not there. Tr. 36. Therefore,
Cassidy tried to call him by going to the top of the hill where the guard shack
was located, because it was the only place where one could get cellular
reception. Tr. 36. She could not reach him, so she left Koffler a voicemail.
Tr. 36. In the voicemail, Cassidy stated that she was now on the afternoon
shift and asked that he email her to tell her when they could meet to discuss
the ride situation. Tr. 36. Another week passed and Koffler still had not
responded, so Cassidy decided to send him an email. Tr. 36-37.

On September 13, 2019, Cassidy sent
an email concerning the availability of rides to Koffler. Tr. 34. Cassidy spent
three days drafting the email, including getting input from another section
foreman, Justin Elliot. Tr. 36-39. Cassidy did not receive a response from
Koffler, so after three days of waiting, she sent the email to Superintendent Josh
Koontz [6] and Assistant
Superintendent Scott Watson. Tr. 37, 53. She did so because she felt it was “a
very important issue, the emergency ride situation,” and she was concerned that
Koffler had not received the email. Tr. 53-54. Cassidy did not believe that it
was a violation of any rule or policy to send the email to any of these
individuals. Tr. 54.

In the email, Cassidy raised
several safety concerns. Tr. 40-45. She wrote, “I am trying to get through to
anyone and everyone that our ride situation is a serious one. We cannot get
crews into their sections. We cannot get outby guys to their places of work.” Ex.
R-I, Tr. 40-41. She explained in the letter, “Exams are not being done to the
standard that they should be done because of [the lack of rides]. Also,
violations cannot be corrected because these guys spend most of their time
being the uber for anyone who needs to get from point A to point B. (More than
ever before, the violations are not being addressed until the fireboss has gone
through.” Ex. R-I. Cassidy concluded the email by pleading, “WE NEED TO RECTIFY
THIS. WE NEED HELP!! HELP!! HELP!! PLEASE!!” Ex. R-I.

Cassidy testified that her
complaint concerning fire boss rides was a safety concern because if the fire
bosses cannot get to a violation, then it cannot be corrected. Tr. 43. She
provided the example of fire bosses needing to note the existence of float
dust, which can easily ignite if there is not enough rock dust. Tr. 43. As a
result of the lack of rides, workers are correcting violations and fire bosses
cannot perform their duties. Tr. 44-45. Cassidy testified that fire bosses were
telling her, “I am not even looking. I am just running. I put the dates where
they need to go and get the heck out of there because I know I only have a ride
to get out.” Tr. 45.

In addition to the regular rides,
there were supposed to be emergency rides—also called “e-rides”—at the end of
each track. Tr. 42, 46. The purpose of an emergency ride was to get an injured
or sick individual out of the mine as quickly as possible. Tr. 47. Since there
were two crews that worked in Two South, company policy required that there
should have been two emergency rides. Tr. 46-47. However, there was only one
emergency ride. Tr. 46. Cassidy testified that the emergency rides were not
available on her shift or on other shifts. Tr. 42.

Previously, Cassidy had contacted Blumetti
to ask for a second emergency ride, and the response was that they could deal
with only one for the time being, and that when the track extended further,
they would consider supplying a second ride. Tr. 46. This concerned Cassidy,
because it was not uncommon for multiple miners to be injured and need rides
within an hour of one another. Tr. 47. Prior to the September 13 email being
written, they had proceeded five blocks—or approximately 1,500 feet—further
into the section, which meant that there would have been between 12-40 people
working in the area. Tr. 48.

Cassidy testified that she sent the
email “to help rectify the emergency ride situation—actually, the mantrip
situation all the way around.” Tr. 49, 184. It was not her intent to go over
anyone’s head or embarrass anyone in sending the email. Tr. 49-50. Cassidy had
emailed Koffler previously, in February of 2019, concerning the ride shortage
and problems with using water instead of antifreeze, because water evaporates
more quickly. Tr. 50. Koffler replied to her February email by stating that he
had placed Randy Powers in charge of the matter and that they would have
antifreeze. Tr. 50. Though Koffler had replied that he was looking into the
matter, the situation had not improved by the time that Cassidy sent the
September 2019 email. Tr. 195. Cassidy felt that after seven months they should
have seen some improvement, but instead the situation became worse. Tr. 195.
She had also emailed Koffler and spoken to him about other safety issues,
including a bad route in Three North and issues with high voltage cables. Tr.

178. The issues were never fixed, but Cassidy was not suspended or written up
     for raising safety concerns. Tr. 178-179.

The email was addressed only to Koffler,
but Koffler forwarded it to Enlow Fork Human Resources Supervisor Tina Hilk [7]
and Watson. Tr. 304-305. There was no rule or policy prohibiting an employee
from emailing a superior about anything, including safety concerns. Tr. 308.

The September 17, 2019 Meeting:

On September 17, 2019, Cassidy was
called into a meeting with Hilk, Watson,
and Koffler. Tr. 56-59. Hilk acknowledged that Cassidy raised safety concerns
in her email and said that “the whole thing is alarming.” [8]
Tr. 59. Hilk called the meeting after the September email because she
considered the issue to be both a safety and a personnel matter. Tr. 306. Hilk
saw her role in the meeting as counseling Cassidy. Tr. 307. Hilk also testified
that she wanted to make sure Cassidy understood Watson’s response to the issue,
but admitted that it was outside the scope of her expertise and
responsibilities since she knew little of mining or mine safety. Tr. 303, 307.

Watson tried to explain away the
situation as the fire bosses all wanting their own rides, but Cassidy disagreed
with that interpretation. Tr. 59-60. Watson did most of the talking at the meeting
and told Cassidy that she was undermining management. Tr. 60. Cassidy responded
by asking how she was undermining management when she was management. Tr. 60.
Watson was concerned about how Cassidy was portraying the issue to the men. Tr.

62. Watson asked Cassidy how she was communicating the issue to the other
    miners, and she relayed the message that she was taking care of the problem.
    Tr. 61-62. He also told her that it was important that she provide assurances
    to the miners beneath her that it was a safe mine. Tr. 288.

Cassidy testified that she sent the
email in order “to bring to the forefront the seriousness of the rides. We were
getting fewer and fewer rides…So, I was not undermining management at all.” Tr.

64. Cassidy testified that she did not have any other recourse to address this
    situation. Tr. 64. She could not write it in the examination book, because the
    rides were required by company policy rather than by law. [9]
    Tr. 64, 171-172. Consol was not following its own policy concerning the
    emergency rides, and she was told to always abide by the most stringent
    requirements, whether they were state law, federal law, or company policy. Tr.
    197.

In her email, Cassidy included
proposed solutions, such as using rides that were parked at 22 Headgate and
Tailgate. Tr. 65. Watson explained to Cassidy that there was a transmission and
gear box issue, and that they were addressing it. Tr. 65. Cassidy’s email also
asked if they could just use other rides from Bailey or Harvey Mine, and he
responded that it was something they were addressing. Tr. 65-66. At the
meeting, Koffler said that he was aware of the situation and was working on it.
Tr. 66. Cassidy was not convinced that Koffler understood the seriousness of
the situation because he did not go underground often. Tr. 66-67. She was
surprised to learn they were aware of the situation, yet nothing had been done
for so long. Tr. 67. Cassidy also reminded Koffler that she had tried to call
him, leave him a voicemail, and come to his office, before sending the email.
Tr. 67.

Cassidy was told that the email
implied that the mine was unsafe. Tr. 68-69. She was also told that several
lines in her email were unprofessional, including the last line that pleaded
for help. Tr. 184-185; Ex. S-2. During the meeting, Hilk said that Cassidy
could bring her concerns to management and that their doors are open. Tr. 69.
Watson reiterated this statement at the end of the meeting. Tr. 69-70, 287.

Hilk testified that there was no
required reporting structure at the mine, but there was a general hierarchy
above Cassidy. Tr. 279-280. She stated that Cassidy could have first reported
to the shift supervisor and then the assistant mine foreman, then the assistant
superintendent, and then the superintendent. Tr. 280. Hilk testified that this
chain of command was important in order to get immediate results or feedback.
Tr. 280.

Hilk felt that the email concerning
the rides was unprofessional because of the use of capital letters and the
repeated use of the word “help.” Tr. 286. Hilk had never worked as a coal miner
and had little knowledge of underground mine safety. Tr. 303. She had no
responsibility for mantrips or roof control issues. Tr. 303. Hilk testified
that the only way that she was able to determine that Cassidy’s September 13
email raised safety concerns was due to the last sentence of the email. Tr.
303-304. She testified that she could not tell if the email was safety related
by its general contents because, “I’ve read the email, but to be honest, I had
no idea what requirements we had in place for rides.” Tr. 304.

The Rib and Roof Bolting Concerns and the November 15,
2019 Email:

Enlow Fork Mine has rib and roof control
issues. Tr. 72. In 2019, there had been several serious accidents in the mine,
including a serious injury in May 2019 and a fatality on August 29, 2019. Tr.

70. The fatality occurred when a foreman named Tanner McFarland was leaving the
    longwall face at the end of his on-shift exam and an enormous piece of coal
    broke loose and crushed him. [10] Tr. 70-72.

Cassidy was told there would be a
training session on bolting and was instructed to attend. Tr. 74-79. Knipple
told Cassidy before the training, “This is serious. Make sure your guys take it
serious and you, too.” Tr. 74. Section Coordinator Frank Panepinto similarly
told Cassidy, “this is a big deal. Make sure you take it seriously.” Tr. 75. However,
the session was run by a sales representative who knew little about bolting
issues. Tr. 74-79. Several of the miners on Cassidy’s crew asked the
representative questions about which length of bolt was better, and questions
about the glue they used, but the representative could not answer them. Tr.
75-80. Cassidy wrote down the questions in detail; confirmed with several roof
bolters and a maintenance foreman named Mac Meadows that the questions were
accurate; and on November 19, 2019, she emailed the questions to Koffler,
Watson, and Koontz. Tr. 80-81, 83-84, 86; Ex. S‑5. Cassidy CC’d the email
to the people who were with her, including the Section Coordinators Justin Drew
and Panepinto, and Assistant Mine Foremen Steve Barr and Blumetti. [11] Tr. 85-86. Cassidy wrote
in the first line of the email “I'm not sure who I address about this
information. That is why I am addressing all of you…” Tr. 86-87; Ex. S-5.

In the email, Cassidy relayed the
question of why they were not using six-foot bolts, since they already had
those bolts on the section for the center and rib bolters and they were
stronger than five-foot bolts. Tr. 88; Ex. S-5. She raised issues of the
60-second glue and the color-coding of stickers when many of the miners stated
that they could not recognize the differences in color. Tr. 88-89; Ex. S-5. She
also raised issues regarding the bolt sled and how bolts were stored, as well
as the possible effectiveness of alternate bolting patterns. Tr. 90. Cassidy
believed that the email implicated mine safety because there was a recent
fatality caused by being crushed by coal, and she was raising questions
concerning more effective bolts and bolting. Tr. 92-93. Cassidy did not think
that this email would be a problem because at the September meeting, she was
told that she could email them anytime and their doors were always open. Tr.

94. Cassidy never recorded the issue of five-foot bolts being used instead of
    six-foot bolts because she was not aware of it violating any laws. Tr. 173.
    Only safety violations that violated the law would be recorded in a pre-shift
    book. [12] Tr. 174. Questions about
    a training at the mine would not be included in a pre-shift examination. Tr.
95. A pre-shift examination record is not the appropriate place to ask questions.
    Tr. 188.

Barr and Blumetti were sitting at
the foreman’s table at approximately 6 pm on the day they received the email,
when Barr talked to Cassidy, asking her why she didn’t talk to him or Blumetti
about the roof bolt matter. [13] Tr. 95, 97. Blumetti
repeatedly questioned why she had email access underground. Tr. 95. Barr
addressed the issue of the six-foot versus the five-foot bolts, explaining that
they preferred the five-foot bolts because they were less likely to result in a
spinner. [14] Tr. 95-96. Barr also
emailed Cassidy a reply, where he acknowledged that the six-foot bolts were
stronger, but addressed the issue of spinners with six-foot bolts. Tr. 98; Ex.
S-6. No one said that anything in Cassidy’s email was inappropriate. Tr. 100.

The November 18, 2019 Meeting:

Three days after Cassidy sent the
email, on November 18, 2019, Cassidy arrived to work and asked Knipple if she
could leave on time that day for an emergency root canal, and he replied
affirmatively. Tr. 101. When she was leaving work at approximately 8 am, the
computers were down and she could not enter the shift’s final numbers. Tr. 101.
Cassidy tried six different computers before Assistant Shift Foreman Adam
DeVault told her that none of them were working. Tr. 101. She wrote the numbers
down on paper and as she was handing them to DeVault, Watson approached her and
said that he needed to see her before she left. Tr. 102. On her way up to
Watson’s office, Cassidy passed Hilk’s office, and Hilk said that Watson needed
to see her. Tr. 102. Cassidy asked Hilk if she could postpone her meeting with
Watson because of her emergency dentist appointment, and Hilk left for 20
minutes to inquire. Tr. 102-103.

Cassidy was led to a large
conference room with Hilk and Watson. Tr. 104-105. Hilk sat across the table,
and Watson sat very close to Cassidy. Tr. 105. Hilk was taking notes throughout
the meeting and said little. Tr. 112. Watson had a thick file, with Cassidy’s
email on top, which was highlighted and annotated. Tr. 106. He referred to the
file and when Cassidy tried to look at it, he said that she was not permitted
to see it. Tr. 106. Cassidy described Watson’s demeaner as, “absolutely
irritated. He was beyond irritated. He was very, very upset. He was shaking.
His voice was cracking. He was…loud.” Tr. 106. Cassidy described Watson as
“demeaning…condescending…He seemed—he had had enough. He had way more than
enough.” Tr. 106. During the meeting, Watson was yelling at Cassidy. [15]
Tr 107. Cassidy indicated that this was quite out of character for Watson. Tr.

106. She felt that his sitting so close to her, his anger, and his
     condescension were intimidation tactics. Tr. 107.

Watson told Cassidy that she “did it
again,” in sending the email. Tr. 109. He asked Cassidy if she realized what
she had done with her email, and stated that he was tired of cleaning up her
messes. Tr. 107. When she tried to answer him, Watson refused to let her talk.
Tr. 107. Watson said that her email was on the G drive and that it was “very
damning to us.” Tr. 108. He said that the email went to the lawyers, the gas
operations, corporate, the engineers, and the surveyors. [16]
Tr. 110. He asked her if she was an advocate for the production and maintenance
men and she felt that he needed her to respond that she wasn’t. Tr. 108. Watson
mentioned the fatality and asked her if she thought that they were doing
something to prevent it from happening again. Tr. 108. Watson said that Cassidy
was undermining management, and she replied she did not understand that
accusation since she was a member of management. Tr. 109.

Hilk testified that she found the November
email unprofessional because it was sent to numerous people and because of the
timing after the fatality. Tr. 289-290, 312-314, 318. She also felt that the
email was unprofessional because it did not include Knipple, even though Knipple
did not have control over the roof control plan at Enlow Fork, and because it
was not a productive way to get an answer, even though Cassidy received a
prompt answer from Barr and Blumetti. Tr. 311. Hilk also testified that Cassidy
was not disciplined as a result of the email. Tr. 293.

Cassidy estimated that the meeting
lasted for approximately 30 minutes. Tr. 111. At the end of the meeting, Watson
said, “now you can talk.” Tr. 111. Cassidy explained that people had questions
and they did not know to whom they should ask these questions. Tr. 111. At the
end of the meeting, Watson asked Cassidy, “you know what I want to hear,
right?” Tr. 113. Cassidy responded that she would tell him what he wants to
hear, that she would “never send an email to any of you as long as I live ever
again.” Tr. 113. He responded that “that’s exactly what I want to hear.” Tr.

113. After the meeting, Cassidy felt embarrassed because she did not feel that
     she had done anything wrong. Tr. 113. She also felt that she was not
     undermining management because she was management and was just asking
     questions. Tr. 114.

The December 12, 2019 Incident:

Knipple was Cassidy’s shift
foreman, which is usually her immediate supervisor. Tr. 115. He served in this
capacity since March 2018. Tr. 115. She recalled that the first time she met
him was during a typical Tuesday afternoon group meeting. Tr. 115. She noticed
someone that she did not know among the 16-18 people gathered so she attempted
to introduce herself. Tr. 116. Knipple did not respond to Cassidy. Tr. 115-116.
He got close to the table and leaned in more, so Cassidy tried again, saying,
“Hello, who are you?” Tr. 116. Knipple again did not respond, so Cassy tried a
third time, saying, “Hello, what is your name?” Tr. 116. At that point, Knipple
“spun around to his right, which is where I was standing and he didn’t even
have eye contact, and said, ‘I don’t talk to women,’ and went back.” Tr. 116.
The room erupted in laughter at this response to her. [17]
Tr. 116. Cassidy was the only woman in the room, which in her experience was
quite common. Tr. 117.

On the midnight shift on December
12, 2019, Cassidy was sitting at the foreman’s table with six other foremen
filling out her examination paperwork when she saw Tim Domico go into the shift
foreman’s office. Tr. 118. When Knipple came out of the office, Cassidy asked
him where Domico was, and he responded that Domico was in his office. Tr. 119.
Cassidy asked why he was there, and Knipple responded that Domico would be
construction foreman. Tr. 119. Cassidy inquired why he was construction foreman
and not her. Tr. 119. Knipple responded that she was going to G2 because she
was good on section. Tr. 119. Cassidy replied that she was good at everything
she does, and Knipple responded that he needed her on section. Tr. 119.

The construction foreman serves as
the second person in charge of the shift, and Cassidy felt she should have been
chosen based on her experience. Tr. 123. Domico had not been to the Archer
Portal for several months, and that portal had gone through a lot of construction,
and Cassidy had more coal mining and foreman experience than Domico, so Cassidy
believed that she knew the job better than Domico. Tr. 123-124. Cassidy
testified that it appeared that Knipple “went out of his way to pull Domico
from Pleasant Grove Portal to bring him over to Archer when he already had
someone that could do that, and that definitely would have been me.” Tr. 124.
Cassidy also had safety concerns about Domico being assigned to the Archer Portal
because it had approximately 40 people spread out working on it, and Domico was
less experienced. Tr. 124-125.

Cassidy asked for a further
explanation of why she was again not chosen to be construction foreman. Tr.

119. Cassidy testified that Knipple never allowed her to be in a construction
     or shift foreman position, even though other shift foremen assigned her to
     those positions. Tr. 122. She had asked him seven previous times in private
     about this issue, and he never provided her a reason. Tr. 122. Cassidy
     described the conversation as loud, but testified that she did not use any
     obscene language, call him any names, make any physical gestures at him, or slam
     her hand on the table. Tr. 120-121. At the time, she needed surgery on her left
     shoulder and she was holding a pen in her right hand, so many of these things
     would have been impossible. Tr. 121. Cassidy remained seated throughout the
     entire conversation. Tr. 121. However, Cassidy admitted at hearing that her
     yelling at Knipple was unprofessional. Tr. 155. Following the conversation,
     Cassidy went to the G2 section on that shift, where she did the work that was
     assigned to her. Tr. 127.

Knipple testified that Cassidy had
screamed at him concerning his selection of foremen, and that she would not
calm down. Tr. 355-356. He described the incident as “humiliating.” Tr. 356.
Knipple testified that he had never been spoken to in that manner by any of his
foremen. Tr. 357-358. Knipple wrote up the incident to Koffler and Koffler took
it to Human Resources. Tr. 358. Knipple said that a year after the incident,
miners beneath him are still making fun of him and making comments about it.
Tr. 358.

Cassidy described such altercations
at the mine as “a regular occurrence.” Tr. 127-128, 167. In her years of
experience at Enlow Fork, other miners have had similar altercations with
foremen and supervisors and she was not aware of any being suspended or
disciplined as a result. Tr. 128, 130. She described the mine as having a lot
of “screaming and yelling.” Tr. 128. Cassidy testified that it was common from
management to let incidents like this go without further discipline. Tr. 129.
She recalled an instance when she was at the Sparta Portal and Blumetti, who
was section coordinator, would “pounce on me on day shift when I came outside.”
Tr. 129. She was not aware of Blumetti ever being disciplined for these
actions. [18] Tr. 129. In one of her
first experiences at the mine, she heard a door slam down the hallway and a
desk and chair going across the room. Tr. 130. She described the stresses of
production and constant demands leading to this environment. Tr. 131. Hilk
described the mine as a stressful environment because of the conditions, long
hours, and safety concerns. Tr. 266.

Cassidy denied that she was trying
to embarrass Knipple in front of his peers. Tr. 168, 186. During the hearing,
Respondent’s counsel repeatedly asked Cassidy if she had “emasculated” Knipple,
which Cassidy denied. Tr. 198. Respondent’s counsel further suggested that
“even though it is your perspective you didn’t do that, you would agree that it
had that effect on him in the mine, didn’t it?” Tr. 198.

The December 19, 2019 Meeting and Cassidy’s Suspension:

Koontz testified that he first
heard about the incident when a foreman named Bill Bentz [19]
approached him and told him about it. Tr. 214-215, 233. Koontz testified that
Bentz had described it as the worst that he had ever seen someone talk to a
superior at Consol, and relayed what he had witnessed to him. Tr. 214-216.
Koontz asked Bentz to write down the details of the incident and he would
address it. Tr. 216. Koontz then went to Hilk and said he wanted to start an
investigation into the incident and wanted everything documented. Tr. 216-217.
He told her to interview everyone who was present. Tr. 235.

Hilk testified that she first heard
about the incident between Cassidy and Knipple when Koontz told her about it.
Tr. 295, 324. Shortly after, Bentz came and told Hilk about the incident. Tr.

296. Bentz told her that Cassidy started screaming at Knipple about the fact
     that he had assigned another supervisor to a role for which she felt she was
     more qualified. Tr. 296. Hilk testified that Bentz told her that Cassidy was
     yelling and pointing at Knipple. Tr. 296.

After Hilk recorded Bentz’s
account, she went to speak to Knipple. Tr. 297. Knipple said, “that’s Barb
being Barb,” and Hilk told him that it was unacceptable. Tr. 297. Hilk asked
Knipple for his firsthand account and he relayed it to her. Tr. 297. During the
course of her investigation, Hilk only included one written statement in the
investigative file, and it was from Knipple. Tr. 324. She also received a
verbal account from Bentz. Tr. 324. Hilk asked Bentz to provide her a record of
what occurred and he turned in a typed copy. Tr. 324. Hilk asked Bentz to hand
write the statement, and she does not recall ever receiving it back. Tr. 324.
Knipple submitted a typed statement because he was concerned about his
handwriting. Tr. 324-325.

Koontz testified that he was not
certain how many statements were actually collected, because he never reviewed
them. Tr. 236. He testified that he “actually talked to some of the other
people that were in the room, that were down the hallway, and there were some
hourly people that I remember that came to talk to me that asked me what was
going on that week.” Tr. 236. However, he did not document any of those
conversations. Tr. 236-237. He was uncertain if there were any statements
beyond Knipple’s. Tr. 237. Koontz never spoke to Cassidy about the incident.
Tr. 238. He testified that he believed that Human Resources talked to Cassidy,
but did not know if that was included in the file. Tr. 238. Hilk testified that
she did not speak to Cassidy about the incident until the December 19 th
meeting when they had the suspension letter in hand because Cassidy was on
vacation. Tr. 297. Hilk contacted Cassidy twice during her vacation, but it was
in reference to signing an ethics form. Tr. 329. During those conversations,
she did not mention the investigation. Tr. 330.

Koontz testified that he never read
any statements, and relied only on his verbal conversation with Bentz and
discussions with the Human Resources group. Tr. 239. Based on what Bentz and
others reported, there was no physical contact between Knipple and Cassidy. Tr.

234. There were no allegations that Cassidy used profanities or called Knipple
     any names. Tr. 234.

A few days after the incident,
Koontz went to talk with Knipple because “some of the guys underground were
saying that Dave got profanity slapped by Barb, like using that terminology.” [20]
Tr. 218. Koontz had heard that Knipple was very embarrassed and was struggling
with what had happened. Tr. 218.

There were four people involved in
the decision to suspend Cassidy: Superintendent Josh Koontz, Vice President of Operations
Eric Schubel, Human Resources Supervisor Tina Hilk, and Director of Human
Resources Erica Fisher. Tr. 221-222, 253. Koontz had a series of conversations
with Schubel, with Schubel telling Koontz to gather all the facts and details
related to the Knipple incident. Tr. 254. Koontz in turn delegated that
responsibility to Hilk. Tr. 254. Hilk sent to Schubel or Fisher all the
information, but Koontz was not certain what was included. Tr. 255. Koontz couldn’t
recall if anyone spoke to Cassidy, but said that “all stories aligned. It was
the same story that I heard from that morning and, you know, that is the
direction we went.” Tr. 255. When Koontz first heard what happened, he wanted
to terminate Cassidy, but since she had never been suspended before, it was
decided instead that she would receive a 10-day suspension. Tr. 222.

After the incident with Knipple,
Cassidy worked one more shift and then went on vacation for 19 days, until
January 2, 2020. Tr. 133. In the days after the incident, no one from
management told Cassidy that there was an investigation. Tr. 131. Hilk called
Cassidy at home the following Monday and told her to report to work for day
shift on January 2. Tr. 132. Cassidy was scheduled to go in at midnight that
night and asked why she was being switched. Tr. 132. Hilk responded that there
would be a meeting about what happened with Knipple. Tr. 132. Cassidy asked if
she would still be working the midnight shift that evening, and Hilk replied that
she would and told her to be dressed and ready for work. Tr. 132.

The following day, Hilk called
Cassidy and told her that she had not filled out the code of ethics form that
is required by every foreman. Tr. 132. Cassidy explained that she had tried to
do so on the computer, but no one had been able to download the document. Tr.

132. Hilk told her that she needed her to come in to fill out a hard copy, and
     Cassidy replied that she would be there on Thursday to pick up the Christmas
     ham that Consol distributed to employees. Tr. 132. Hilk responded that that
     would be alright. Tr. 133. Hilk never stated that there would be any
     discipline. Tr. 134.

Cassidy returned to the mine on
December 20, 2019, to pick up her Christmas ham and fill out the ethics form.
Tr. 135. Cassidy went to the warehouse, and Hilk told her to go upstairs to
fill out the ethics form. Tr. 136. After Cassidy signed the form, Hilk left the
room and said that she would be right back with Koontz. Tr. 136. Cassidy
replied that she thought that meeting would not be happening until January 2,
but Hilk insisted that they would be having the meeting at that moment. Tr.

136. Cassidy stated that she was not prepared for the meeting and that she had
     somewhere else she had to be very soon. Tr. 136-137.

Hilk returned with Koontz and
Watson. Tr. 137. Koontz read Cassidy the suspension letter, which first
discussed the September email and subsequent meeting, then discussed the
November email and subsequent meeting, and then the December incident with
Knipple. Tr. 137, 145; Ex. S-9. When Cassidy arrived at the meeting on December
19, 2019, the decision to suspend her had already been made. Tr. 330.

Cassidy described being in shock
that she was being suspended for the two emails and for yelling at Knipple. Tr.
137; Ex. S-9. Koontz stated that he had things going on at home, things at the
mine, and the fatality to deal with, and that he did not have to deal with
Cassidy. Tr. 137-138. He also told Cassidy that he knew that she was calling
the state or MSHA about situations at the mine, and Cassidy replied that she
had never done that. Tr. 138. He replied that “I know it’s you, I just can’t
prove it.” [21] Tr. 138. He said that
his boss wanted him to terminate Cassidy, but that he wanted to give her one
more chance. Tr. 138.

The suspension letter stated in
full:

Dear Mrs. Cassidy,

On September 27,
2019, you met with Scott Watson, Assistant Superintendent, Mike Koffler,
General Mine Foreman, and Tina Hilk, Human Resources Supervisor regarding an email
you sent members on our management team regarding the ride situations
underground. During that conversation you were told the appropriate means of
which to address any concerns and professionalism was discussed.

On November 18, 2019
you again met with Scott Watson and Tina Hilk regarding another email you had
sent to various extended members of the management team. You were again told of
the appropriate means of which to address any concerns and expectations were
clearly defined as to your role on the management team.

On December 12,
2019, you behaved in a disrespectful and disruptive manner towards your shift foreman
while he was attempting to explain to you your work assignment. Specifically,
you slammed your hand on the table, pointed your finger and screamed at him. He
cautioned you to calm down, yet you continued to scream so loudly that it was
disruptive to everyone in the area.

By this letter, I
will also clarify my expectations of you. First, as a member of management, you
are expected to abide by the same standards that we hold our hourly employees.
Second, you must present any justified criticisms or comments in a sensitive,
courteous and respectful manner. This means focusing on becoming a more
professional team player. Professionalism is an essential component of your
position in all aspects of your work with others.

In summary, I always
expect you to act professionally, to work well with your coworkers, your
supervisor and myself and to appropriately represent mine management.

Your disrespectful
and disruptive conduct will not be tolerated. To impress on you the seriousness
of your misconduct, you are being placed on a ten (10) day unpaid suspension,
effective January 2, 2020. You are to report back to work on January 16, 2020,
for your regularly scheduled shift. Your pay will be reduced by $2132.52 on
your paychecks dated January 17, 2020 and January 31, 2020. Be advised that any
further misconduct will result in disciplinary action up to and including
discharge.

Regards,

Josh Koontz

General
Superintendent

Ex. S-9.

Though Koontz signed the suspension
letter, he did not write it. Rather, Hilk and the human resources team wrote
it. Tr. 211-212, 241-242; Ex. S-9. Koontz testified that he suspended her
because of the outburst she had with Knipple, including “the mannerisms and
things that happened that night.” Tr. 212. Koontz explained in testimony that
her behavior was in violation of Employee Conduct Rule Number 4, which covers
insubordination. [22] Tr. 213; Ex. R‑H.
However, nowhere in the suspension letter does it state that Cassidy violated
employee conduct rule 4 or anything about insubordination. Tr. 250. Hilk
testified that the reason for the suspension was not based on Cassidy allegedly
slamming her hand, but only the way she had spoken to her supervisor. Tr. 328-329.

Koontz testified he was aware of
the bolt email, but not of the other one concerning rides. Tr. 242. However, in
the suspension letter that Koontz signed, read to Cassidy, and presented to
her, it referred to this email. Tr. 243. When Koontz read Cassidy’s email
concerning the ride situation, he did not think it was unprofessional. Tr. 247.
Similarly, he did not believe that the roof bolt email was unprofessional. Tr.

247. Koontz acknowledged that the suspension letter referenced the emails as
     unprofessional, but Koontz said that Human Resources decided to include
     references to the emails. Tr. 249. There is no rule preventing someone from
     emailing a superior about these issues. Tr. 247.

Koontz testified that the reason
for the suspension was reflected in the contents of the letter, but insisted
that it was only because of what had transpired between Cassidy and Knipple.
Tr. 219-220. He further testified that the two meetings referenced in the
letter were in no way connected to the suspension. Tr. 220-221. Hilk also
testified that Cassidy’s suspension was only because of the incident with
Knipple, and not because of her September or November emails. Tr. 298-301. She
testified that she included the references to the two meetings that Cassidy had
concerning the emails because she felt that “it was important to show that
Barbara had had [sic] recently been counseled on unprofessionalism by sending
the emails.” Tr. 301.

Hilk testified that she based the
10-day suspension on past discipline for an incident similar to Cassidy’s. Tr.

302. Cassidy was originally going to receive a three-day suspension, but Hilk
     testified that she changed it based on a single disciplinary letter that she
     found in another file. Tr. 338-339. Hilk wrote to Erica Fisher that she
     happened to come across a 10-day suspension from 2014 for another employee in
     the personnel files, and that Cassidy should receive a similar suspension. Tr.
     332-333; Ex. R-R. However, at hearing, Hilk stated that she did not find it by
     chance, but knew it existed and searched for it. Tr. 332-333. The 2014 incident
     was prior to Hilk working at Enlow Fork and she had no personal knowledge of
     the incident. Tr. 333-334. The 2014 letter states that the employee violated Employee
     Conduct Rule Number 4. Tr. 334; Ex. R-R.

Koontz asked Cassidy if she had
anything to say, and Cassidy hung her head and shook it to indicate that she
did not. Tr. 138. Hilk encouraged Cassidy to respond, and Cassidy said, “you
know I am not a slug. You know I give you 150 percent every day. I am an
employee who cares.” Tr. 139. Koontz replied that no one was questioning her
abilities, but how she went about her work. Tr. 139. Cassidy tried to explain
why Domico should not have been in charge and the reasons that she yelled at
Knipple, but Koontz responded, “there you go undermining management again.” Tr.

140. After being told twice to “just sign” the letter, Cassidy signed it. Tr.
     139-140.

After Koontz left the room, Cassidy
attempted to correct some of the errors in the letter with Hilk. Tr. 139. Among
the errors was an incorrect date of the September meeting, which stated that
the email meeting took place on September 27, however it actually took place on
September 17. Tr. 143-144; Ex. S-9. Additionally, Cassidy stated that she did
not slam her hand or point her finger at Knipple. Tr. 139. Hilk responded that
“we have witnesses.” Tr. 139. Cassidy replied again that she did not do those
things, but she was not aware that she needed witnesses at that moment. Tr.

139. Cassidy also testified that while she may have raised her voice so that it
     was yelling, she was not screaming. Tr. 146. She also stated that there were
     few people around and that her voice was not disruptive. Tr. 146-147. The
     letter stated that Cassidy was not professional. Tr. 147.

Neither Koontz nor anyone else in
the investigation ever interviewed Cassidy about the incident, but testified
that Cassidy had an opportunity to present her side during the suspension
meeting after the letter had been printed and read to her. Tr. 240-241, 325.
Hilk told Cassidy that if she had anything to say, now was the time, but
testified that Cassidy did not defend herself. Tr. 325. However, Hilk’s
contemporaneous notes of the meeting state that Cassidy “disputed the fact that
she slammed her hand and pointed at him.” Tr. 325-327; Ex. R-X. Hilk testified
that she disregarded the statement because she had two eyewitnesses that said
Cassidy did those things. Tr. 327.

After the meeting, Cassidy was
embarrassed and ashamed and described having suicidal thoughts. Tr. 150. The
suspension was described as being for 10 days, but Cassidy said that it was
actually for 14 days. Tr. 151. When Cassidy told Hilk about this discrepancy,
Hilk responded that the 10 days was not inclusive of weekends. Tr. 151. Cassidy
replied that she worked weekends, and that as a foreman she was only entitled
to one weekend off per month. Tr. 151. Cassidy was not paid for the 14 days
that she was suspended. Tr. 151-152.

CONTENTIONS OF THE
PARTIES

Following the hearing, the Complainant and
Respondent submitted briefs and reply briefs in support of their respective
positions. The Secretary argues that Cassidy engaged in protected activity when
she emailed safety concerns to upper management, and that Respondent
discriminated against Cassidy when it counseled her after each of the emails
and then suspended her for ten days without pay. The Secretary argues that the
meetings were not to address the concerns in the emails, but rather were
disciplinary counseling session, which is why the meetings were referenced in
the suspension letter. Sec’y Brief at 20.

The Secretary further argues that
all the indicia of discriminatory motivation were present. Much of upper
management was aware of Cassidy’s emails either from when she sent the emails
to them or by reading the suspension letter. The Respondent showed animus
toward the protected activity by referencing the emails in the suspension
letter, by counseling her after each email, by conducting a “sham investigation
of the Knipple incident,” and by holding a surprise suspension meeting. Id.
at 21-25. Respondent further showed animus when the mine superintendent accused
Cassidy of contacting state or federal authorities about safety issues. Sec’y
Reply Brief at 7-8. The Secretary argues that there was a close proximity
in time between Cassidy’s protected activities and the suspension, with the
emails being sent in September and November, and the suspension in December.
Cassidy further suffered disparate treatment since verbal altercations at the
mine were not uncommon and rarely led to disciplinary action. Lastly, Secretary
argues that the Respondent failed to rebut the prima facie case by
proving that its adverse actions were in no way motivated by Cassidy’s
protected activity.

As remedy, the Secretary argues
that this Court should award back-pay wages for the ten-day suspension, plus
interest, as well as lost employer contributions to Cassidy’s 401(k) account.
Furthermore, the Secretary has proposed a civil penalty of $15,000 for the
violations in this case.

The Respondent argues that Cassidy
did not engage in any protected activity and suffered no discrimination. In its
brief, it argues that Cassidy “screamed at and emasculated her supervisor in
front of her co-workers,” which amounted to a “verbal assault,” and was
suspended as a result. Resp. Brief at 1-2. Respondent argues that the
ride and bolt issues that Cassidy included in her emails were not safety issues
because they were not violations of law. It described Cassidy’s request for
help in her September email as her “frantically shouting,” and that she had an
“unhinged tone” in the November email. Resp. Reply Brief at 1-2.
Furthermore, issues that Cassidy raised only involved miner convenience, and
never implicated a safety concern. Respondent contends that it suspended
Cassidy solely as the result of the incident with Assistant Mine Foreman Knipple.

ANALYSIS

Section
105(c)(1) of the Mine Act provides that a miner cannot be discharged,
discriminated against, or otherwise interfered with in the exercise of her
statutory rights because she “has filed or made a complaint under or related to
this Act, including a complaint notifying the operator or the operator’s agent,
or the representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine,” or “because of
the exercise by such miner…of any statutory right afforded by this Act.” 30
U.S.C. 815(c)(1).

In order to
establish a prima facie case of discrimination under Section 105(c)(1),
the Secretary on behalf of a complaining miner must produce evidence sufficient
to support a conclusion that the miner (1) engaged in protected activity, (2)
suffered an adverse action, and (3) the adverse action was motivated at least
partially by that activity. See Turner v. Nat 7 Cement Co. of
California,  33 FMSHRC 1059, 1064 (May 2011);  Sec'y of Labor on
behalf of Pasula v. Consol Coal Co.,  2 FMSHRC 2786, 2799
(Oct. 1980),  rev'd on other grounds  663 F.2d 1211 (3d Cir.
1981);  Sec'y 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 the protected activity. Driessen v. Nev. Goldfields, Inc., 20 FMSHRC
324, 328-29 (Apr. 1998); Robinette, 3 FMSHRC at 818 n.20. The operator
may also defend affirmatively by proving that the adverse action was in part
motivated by unprotected activity of the miner, and that it would have taken
the adverse action based on the unprotected activity alone. Driessen, 20
FMSHRC at 328-29 (citing Robinette, 3 FMSHRC at 817; Pasula, 2 FMSHRC
at 2799-2800). The operator bears the burden of proof for the affirmative defense.
Pasula, 2 FMSHRC at 2800.

I.          
Protected Activity:

The evidence presented in this case
shows that Barbara Cassidy engaged in multiple protected activities. As will be
discussed below, both of Cassidy’s emails constituted safety complaints, which
the Commission has described as “paradigmatic ‘protected activity’ within the
meaning of section 105(c)” Sec’y of Labor obo Jeremy
Jones v. Kingston Mining, Inc ., 37 FMSHRC 2519, n. 3 (Nov. 2015). Additionally,
the accusations that Cassidy made reports to MSHA or the state—whether or not those
complaints were actually made—constitute protected activity. Lastly, the
interaction with Knipple, though loud and perhaps tinged with anger or hurt,
involved safety concerns and therefore also constitutes a protected activity.

On September 13, 2019, Cassidy sent
an email concerning the availability of rides to Mine Foreman Michael Koffler. [23]
Tr. 34. She sent the email after several fire bosses had come to her and
complained that the lack of rides impacted their ability to conduct exams and
correct violations observed during their exams. Tr. 189. Furthermore, the ride
shortage meant that the Two South Section had only one emergency ride for two
separate working crews, which would pose a significant problem if the need
arose to quickly evacuate sick or injured miners in an emergency. Tr. 40-42,
46-47. These shortages violated Consol’s internal policies. Tr. 64-65. In the
email, Cassidy referred to the ride shortage as a “serious” problem, and
explained that as a result, “exams are not being done to the standard that they
should be done.” Ex. R-1. Cassidy believed the email raised safety concerns
because if the fire bosses could not get to a violation, the violation could
not be corrected. Tr. 43. Indeed, the final line of the email, which stated,
“WE NEED TO RECTIFY THIS. WE NEED HELP!! HELP!! HELP!! PLEASE!!” was a plea for
help due to an ongoing safety issue. Ex. R-1.

Others in management viewed the
September email as one that raised safety issues. Though Human Resources Supervisor
Tina Hilk testified that she felt the last line that plead for help was
“unprofessional,” she also stated that due to her lack of knowledge of mine
safety, the only reason she knew Cassidy’s email concerned safety was precisely
because of the last line. Tr. 286, 303-304. In the meeting following the email,
Hilk acknowledged the safety issues raised in the email and called the
situation “alarming.” Tr. 59. Assistant Superintendent Watson also viewed
Cassidy’s email as encompassing safety and said as much when he told Cassidy
that he viewed her email as implying that the mine was unsafe. Tr. 69.

Consol repeatedly told Cassidy that
it had an “open door policy,” but this appeared to be little more than an empty
slogan. Tr. 69, 94, 230, 287. Cassidy tried multiple ways of relaying the
problems associated with the ride shortages. She had sent an email seven months
earlier making the same safety complaint, but upper management did nothing except
provide Cassidy assurances that they were looking into the matter. Tr. 50, 195.
After the problem persisted and Cassidy continued to receive safety complaints
from the fire bosses, she went to Koffler’s office to discuss the issue on
August 28, 2019. Tr. 35. Koffler was not in his office, so Cassidy returned the
following day. Tr. 35. He was not there again, so she left a note stating that
she wanted to talk to him about the ride situation and asked that he email her.
Tr. 35-36. After a week of not receiving a response, Cassidy tried stopping by
his office again, but to no avail. Tr. 36. So, Cassidy went to the only spot at
the mine where she could get cell phone reception and called Koffler and left
him a voicemail indicating that she needed to talk to him about the ride
situation. Tr. 36. After a week without response, Cassidy sent the email at
issue to Koffler. Tr. 36-37. Then, after waiting three days without any
response, she forwarded the email to Superintendent Koontz and Assistant
Superintendent Watson. Tr. 37, 53.

Respondent argues that the “availability
of rides is a matter of convenience and was not a safety or legal issue.” Resp.
Brief at 4. In support of this position, Respondent significantly misstates
the record. [24] Respondent cites to page
42 of the transcript in stating that it was simply a matter of convenience, but
this page states nothing of the sort. In fact, Cassidy’s testimony captured on
page 42 concerned the necessity for emergency rides, stating, “I asked them
what about the guy that gets hurt, how do you get them out of there. That is
always a concern of mine because I’ve been in a lot of emergency situations.”
Tr. 42. This testimony is a paradigmatic safety concern. [25]
Similarly, Respondent misstates the meaning of Cassidy’s testimony on page 69,
by saying she “admitted that she was not communicating that the mine was
‘unsafe;’ rather, she used her email to get their attention.” Resp. Brief
at 5. Cassidy’s testimony captured on page 69, as well as the pages that
preceded it and the email itself, explicitly stated that she viewed the ride
shortage as a safety concern. Tr. 34-35, 40-41, 44-48, 53-54, 189, 195; Ex. R-1.
On page 69, Cassidy was simply stating that she denied Watson’s statement that
the email implied that the mine was unsafe. There is a vast difference between
stating that the email did not imply that the mine was unsafe and concluding
that there were no safety concerns raised. Furthermore, Cassidy did not testify
that “she used her email to get their attention,” Resp. Brief at 5, but
rather to get their attention about “what is going on.” Tr. 69. Respondent
selectively quotes Cassidy to portray her as an attention-seeker, when in fact
she was trying to bring attention to a safety problem, which is in the nature
of a safety complaint.

Respondent also attempts to argue
that Cassidy’s email was not professional because the final line pleading for
help was in all capital letters, which Respondent characterizes as her
“yell[ing] at the recipients,” Resp. Brief at 5, or that she “frantically
shouted.” Resp. Reply Brief at 2. However, capital letters do not
constitute a “yell” and this Court is not going to hold that a miner’s plea for
help in addressing a serious safety problem is nullified because they used too
many capital letters.

Ultimately, Respondent
misunderstands the law governing miner health and safety when it repeatedly
argues that because the ride shortage did not violate the Mine Act or
regulations, then it cannot constitute a safety complaint. Resp. Brief
at 8. The law does not require that a health or safety complaint involve a
violation of a mandatory safety standard or other law, and the Commission has
never required such a narrow reading. [26] The Commission has made
it clear that “the Mine Act grants miners the right to complain of a safety or
health danger or violation.” Bryce Dolan v. F & E Erection
Co. , 22 FMSHRC 171, 177 (Feb. 2000). In discussing whether a work refusal
based upon a safety concern—a right not explicitly mentioned in Section 105—is
protected activity under the Mine Act, the Commission and Courts have explained
that there must be a subjective good faith belief by the miner of a hazardous
condition. See Secretary of Labor on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 812 (April 1981);  accord Gilbert
v. FMSHRC , 866 F.2d 1433, 1439 (D.C. Cir. 1989). It would be contrary to
the purpose of the Mine Act to circumscribe a miner’s right to make a safety
complaint more than a miner’s right to engage in a work refusal. ( See e.g. MSHA obo Sean Miller v. Savage Services Corporation , 37 FMSHRC 936, 946 (April 30, 2015). (The Court cited Robinette
to find “ that each of Miller's six safety
complaints constituted protected activity because they were based on Miller's
“good faith, reasonable belief in a hazardous condition.”) This is
consistent with Congress’ intent that the scope of protected activity be
broadly interpreted to “assure that miners will not be inhibited in any way in
exercising any rights afforded by the legislation.” S. Rep. No. 181, 95th
Cong., 1st Sess. 35-36 (1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 , at 623-24
(1978).

For similar reasons, Cassidy’s November
15, 2019 email constituted protected activity. Enlow Fork Mine had rib and roof
control issues, which led to the death of a miner several months earlier when
an enormous piece of coal crushed miner Tanner McFarland. Tr. 70-72. Cassidy described
the mood among miners as them feeling that such an accident “could happen—that
could happen to anyone…All of us felt that. It could happen to anyone at any
time. And it was horrible. It was absolutely horrible.” Tr. 72. Multiple
witnesses testified that, even several months after the death, it was a very
sensitive and “very difficult time for everybody.” [27]
Tr. 224-225, 316, 318. It was in this context that the operator was preparing a
number of changes to its roof and rib control plan to allow it to resume
mining. Tr. 72-73, 224.

During this time, Cassidy and her
crew were instructed to attend a training by the mine’s roof and rib bolt
supplier and Cassidy was told by numerous supervisors that she and her crew
must take the training seriously. Tr. 74-75. During the training, several of
the miners on Cassidy’s crew asked questions about bolting, which the training
representative was unable to answer. Tr. 75-80. Cassidy hoped to get answers to
these questions concerning the safest type of bolts for the mine, but she did
not know to whom she should direct them. Tr. 80-86; Ex. S-5. Therefore, she
emailed them to several members of management. Id.

Cassidy’s November 15, 2019 email
clearly concerns safety issues. First, Cassidy references the training that she
and her crew attended, and stated clearly that there were some concerns and
questions that came up. Ex. S-5. These questions included asking why six-foot
bolts were not going to be used instead of five-foot bolts, remarking that the
six-foot bolts are stronger. Ex. S-5. Cassidy also mentioned that the new bolts
have a different time requirement for setting in place, and that the stickers
on the boxes distinguishing the different glues were too close in color and
that miners had trouble telling them apart. Ex. S-5. Cassidy also raised
questions and concerns regarding how the bolts were stored and whether a
different bolting pattern would be more effective. Ex. S-5. Cassidy testified
that she believed that the email concerned mine safety because a miner had
recently died from being crushed by a chunk of coal and she was raising issues
concerning stronger and more effective bolting. Tr. 92-93. This Court fully
agrees.

Respondent’s Counsel’s argument
that “Cassidy’s challenges to the use of five inch bolts as compared to six
inch bolts had nothing to do with safety and everything to do with convenience
for her subordinate employees who wanted to avoid the hassle of using the five
inch bolts” is not based in any evidence and shows a complete lack of
understanding for the work that miners perform. [28]
Resp. Brief at 8. As discussed supra , Respondent’s counsel asked
repeatedly at hearing whether the issue was more a matter of convenience, and
Cassidy repeatedly explained the important safety reasons for which she had
raised the issue.

Respondent also raises, once again,
the argument that Cassidy “never recorded a condition or violation related to
the use of six-foot bolts as compared to five-foot bolts as part of her
pre-shift responsibilities, because she did not consider it to be and, in fact
it was not, a safety issue.” Resp. Brief at 9 .
This argument both misconstrues the legal requirements for protected activities
and misunderstands what exam books are used for in the mine. [29]
Questions about a training at the mine would not be included in a pre-shift
examination because a pre-shift examination record is not the appropriate place
to ask questions. Tr. 188. The regulations have very specific requirements for
what must be examined during a pre-shift exam and what must be recorded. See
30 CFR 75.360. If a miner has safety questions, it would be wholly
inappropriate to record those questions in the examination book. [30]

In addition to the two emails, Koontz’s
accusations in the December 19, 2019 meeting that Cassidy had contacted the
state or MSHA constituted a protected activity. Tr. 138; Ex. R-X. Cassidy
denied that she had contacted MSHA, but Koontz replied “I know it’s you, I just
can’t prove it.” Tr. 138. Whether Cassidy actually contacted MSHA is
immaterial; if management believed that she had done so, then it constitutes
protected activity under Section 105(c). MSHA Ex Rel. Stephen Smith, Donald
Hansen, Thomas Smith and Patricia Anderson v. Stafford Construction Co ., 5
FMSHRC 618, 621 (April 1983) (“discrimination against a miner based on a
mistaken belief that he has engaged
in protected activity also violates section 105(c)(1) of the
Act.”); Elias Moses v. Whitley Development Corporation , 4 FMSHRC 1475,
1480 (Aug. 1982) (“Miners would be less likely to exercise their rights if no
remedy existed for discriminatory action based on an
operator's mistaken belief that a miner had exercised a
protected right. Indeed, the adverse effect of such action might be even more
debilitating than discrimination over
actual protected activity.”); MSHA obo Chad Alex Green &
William Donnie Smith v. D & C Mining Corp ., 33 FMSHRC 243, 250 (Jan.
20, 2011) (“Although the Complainants may not have engaged in protected
activity, it cannot be denied that the Respondent believed they did so…”).

Lastly, Cassidy’s argument with
Knipple concerning the choice of who would be the construction foreman on the
shift included safety concerns and therefore was a protected activity. Cassidy
testified that Tim Domico was less qualified to serve as construction foreman
at the Archer Portal because he had less experience than her, and that there
was a lot of construction since the last time he was at the Archer Portal,
which meant that he may not be as familiar with the area. Tr. 123-125. Cassidy
had more coal mining and foreman experience than Domico, and she believed he
was being chosen for illegitimate reasons. Tr. 123-124. Cassidy testified that
she was concerned about Domico’s abilities supervising 40 miners at that
Portal. Tr. 124-125. The manner in which Cassidy raised these issues to Knipple
is discussed below, but for purposes of this analysis, this Court finds that
asking one’s supervisor why a less experienced foreman is being chosen
implicates safety issues sufficiently to be considered protected activity under
Section 105(c).

II.        
Adverse Action:

The Respondent does not contest
that Cassidy suffered an adverse employment action. Cassidy was suspended
without pay from January 02, 2020, until January 16, 2020. Ex. R-A. “Under the
Mine Act the Commission has defined ‘adverse action’ to constitute ‘an
action of commission or omission by the operator subjecting the affected miner
to discipline or a detriment in his employment relationship.’” MSHA obo
Lawrence L. Pendley v. Highland Mining Company , 34 FMSHRC 1919, 1930 (Aug.
2012).

The Secretary further argues that
each of the meetings following the emails also constituted adverse employment
actions. This Court agrees. Hilk described the meetings as disciplinary
counseling sessions that were part of progressive discipline. Tr. 301, 306-307,
322; Ex. R-X. The meetings were then included in the suspension letter because
Hilk “thought it was important to show that [Cassidy] had been recently
counseled on unprofessionalism by sending the emails.” Tr. 301, 322.

III.     
Discriminatory
Motive:

The Commission has acknowledged that it is often difficult to establish
a motivational nexus between protected activity and the adverse action that is
the subject of the complaint. Sec’y of Labor on behalf of Baier v. Durango
Gravel, 21 FMSHRC 953, 957 (Sept.1999). To establish the nexus, the
Commission has identified the following indicia of discriminatory intent: (1) hostility
or animus toward the protected activity, (2) knowledge of the protected
activity, and (3) coincidence in time between the protected activity and
the adverse action. Sec’y of Labor on behalf of Lige Williamson v. CAM
Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has further
considered the disparate treatment of the miner in analyzing the nexus
requirement. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp. , 3
FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds , 709 F.2d 86 (D.C.
Cir. 1983). It is not necessary, however, to establish all four indications of
discriminatory intent. For example, where there is knowledge of the protected
activity and coincidence in time between the protected activity and the adverse
action, a causal connection is supported. Sec’y of Labor, on behalf of Yero
Pack v. Cimbar Performance Minerals , 34 FMSHRC 3304 (Dec. 2012).

Though the Commission has noted that “direct evidence of
actual discriminatory motive is rare,” this case constitutes one of those rare
cases. See United Mine Workers of America obo Mark A. Franks & Ronald M.
Hoy v. Emerald Coal Resources, LP , 36 FMSHRC 2088, 2096 (Aug. 2014). Direct
evidence of such discriminatory motive here is contained in several important
documents submitted into evidence. First, the suspension letter lists three
incidents—the September 27 email, the November 18 email, and the December 12
argument—before imposing a suspension for lack of professionalism and
misconduct. Ex. S-9. Therefore, in the very document that provided
justification for the suspension, Respondent included and focused on Cassidy’s
safety emails.

Superintendent Koontz testified that the reason for the suspension
was contained in the contents of the letter, but insisted that the first half
of the letter should be ignored and that it was only because of the Knipple
incident. Tr. 219-220. This Court found Koontz to be a less than credible
witness, with much of his testimony being self-serving and contradicting
Respondent’s own documents. Though Koontz did not author the suspension letter,
he signed it and read it to Cassidy during the December 19, 2019 suspension
meeting. Tr. 137, 145; Ex. S-9. In addition to discussing the two emails that
Cassidy sent, Koontz also accused Cassidy of reporting safety issues to MSHA,
stating, “I know it’s you, I just can’t prove it.” Tr. 138. This fact is
corroborated by Hilk’s contemporaneous notes, which state, “Josh [Koontz] said
she has gone to the state.” Ex. R-X. Koontz was an experienced manager, having
worked as an assistant superintendent and general superintendent for over four
years at the time of this meeting with Cassidy, and it defies logic and belief
that he did not understand that the inclusion in the suspension letter of these
incidents indicates that they served as reasons for the suspension. Tr.
207-208.

Furthermore, Koontz had no first-hand knowledge of the Knipple
incident and he neither conducted nor relied on anything that could be
considered an investigation. Koontz described first hearing about the incident
when Bentz approached him and told him what he witnessed. Tr. 214-216, 233.
Koontz then delegated to Hilk to conduct an investigation, interview everyone
who was present, and document everything. Tr. 216-217, 235. However, Koontz
testified that he never reviewed any of the statements collected and that he
just talked with some of the people who witnessed the events, though he did not
name any and documented nothing. Tr. 236-237, 239. Koontz never spoke to
Cassidy about the incident. Tr. 238.

Koontz testified that the suspension was due to Cassidy violating
Employee Conduct Rule Number 4, which covers insubordination. Tr. 213. However,
neither this rule nor the word “insubordination” appears anywhere in the
suspension letter. See Ex. S-9. Rule 4 defines “insubordination” as “refusal
or failure to perform work assigned or to comply with supervisory direction,”
however there was no allegation or evidence that Cassidy refused to perform
work or comply with supervisory direction. In fact, following the argument with
Knipple, Cassidy went to the G2 section as she was instructed to do and
followed direction. Tr. 127.

Though not under the definition of insubordination, Rule 4 also
lists other conduct that is prohibited, including “use of profane, obscene,
abusive, or threatening language or conduct toward subordinates, fellow
employees, or officials of the company.” Ex. R-H. However, there were no
allegations or evidence that Cassidy used any profanity or called Knipple any
names or engaged in any of the conduct listed in Rule 4. Tr. 234. The only use
of profanity in this case involved Koontz hearing that some of the other men in
the mine were saying that Knipple “got profanity slapped by Barb.” Tr. 218.
There is no evidence that any of these men were disciplined for engaging in
profanity in violation of Rule 4.

Hilk authored the suspension letter and similarly testified that
the reason for the suspension was only because of the incident with Knipple and
not the two emails she discussed in the letter. Tr. 273, 298-301. This Court
found Hilk to be an evasive witness who repeatedly contradicted herself and the
other evidence—much of which she authored—and used buzzwords like
“professionalism” to distract from the explicit reasons she wrote for Cassidy’s
suspension. She knew little to nothing about mining or mine safety and, despite
having substantive involvement in making decisions concerning the discipline of
miners, she seemed to be wholly ignorant of miners’ rights.

Hilk was present at both meetings following Cassidy’s sending of
the safety emails, as well as the suspension meeting, and she took
contemporaneous notes at each, which were admitted into evidence. Tr. 112, 326.
Hilk testified that Cassidy was in no way disciplined for raising safety
concerns in her November email. Tr. 293. Hilk stated that what occurred in this
meeting was Watson educating Cassidy about the bolts. Tr. 293. This testimony
was in direct contradiction to Hilk’s own contemporaneous notes. In her notes,
Hilk wrote nothing about Watson educating Cassidy about the bolts. See Ex.
R-X. Rather, she wrote, “The first meeting was a warning regarding the
unprofessionalism. Scott [Watson] was very clear this was the last time we
would meet on this subject and that the next time would not have the same
outcome.” Ex. R-X. Hilk was a supervisor in Human Resources and clearly
documented that the September meeting was the first verbal warning, the
November meeting was the second verbal warning, and that the next incident
would result in adverse employment action. Hilk provided no alternative explanation
for these notes nor is it likely that one is possible. Indeed, the suspension
letter that Hilk authored clearly places these actions in the same disciplinary
chain. Hilk testified that she only included discussions of the emails in the
suspension letter because she felt “it was important to show that Barbara had
had [sic] recently been counseled on unprofessionalism by sending the emails.”
Tr. 301. However, in her own notes, Hilk stated that those meetings were
disciplinary warnings, and the inclusion of them in the letter is clearly
describing strikes one and two of a progressive discipline regime.

Hilk was in charge of conducting an investigation and recommending
the level of discipline, but this Court cannot find that either action was
performed in good faith. In addition to Cassidy and Knipple, there were at
least six other people present for the December 12, 2019 incident. Tr. 118.
Hilk only collected one written statement and one oral statement of the
incident. Tr. 297, 324-325. Despite calling Cassidy twice at home during
Cassidy’s vacation, Hilk never discussed the incident with Cassidy or asked her
for her explanation of events, and then testified that the reason she did not
interview Cassidy was due to her vacation. Tr. 297, 330. In determining the
type of discipline that Cassidy should receive, Hilk sent Fisher a previous
suspension of another employee and wrote, “In looking through a personnel file,
I by chance came across the attached. In being consistent with past practice
for the same violation, we would like to make Barb Cassidy’s suspension 10
days.” Ex. R-R. However, at hearing, Hilk testified that she did not find it
“by chance,” but rather knew it existed and searched for it. Tr. 332-333. The
letter that Hilk sent was from before Hilk began working for Consol. Hilk
further testified that at the December disciplinary meeting, Cassidy was given
an opportunity to defend herself, but chose not to do so. Tr. 325. This
testimony is belied by Hilk’s contemporaneous notes, where she wrote that
Cassidy did defend herself, when she wrote, “After Josh left, she disputed the
fact that she slammed her hand and pointed at him.” Ex. R-X.  

Though there is ample direct evidence of
discriminatory motive, this Court will still examine the traditional motivational
nexus below.

A.        
Animus Towards Protected Activity

“Hostility towards protected
activity—sometimes referred to as ‘animus’—is another circumstantial factor
pointing to discriminatory motivation. The more such animus is specifically
directed towards the alleged discriminatee's protected activity, the more probative
weight it carries.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge
Corporation , 2 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). In the
instant case, there is abundant evidence of hostility or animus towards the
protected activity.

Immediately following each of
Cassidy’s emails where she raised safety issues, Cassidy was called into
meetings with upper management and a member of Human Resources. In the
September 17, 2019 meeting, Watson accused Cassidy of undermining management in
raising safety issues and gave her a warning “regarding the unprofessionalism.”
Tr. 60; Ex. R-X. In the November 18, 2019 meeting, Watson sat very close and
yelled at Cassidy. Tr. 105-106. Watson told Cassidy that she “did it again,” in
sending the email, and that he was “tired of cleaning up [her] messes.” Tr.
107-109. Watson warned Cassidy that this was her second warning and that next
time she would face more severe consequences. Ex. R-X. At the end of the email,
Watson required Cassidy to state affirmatively that she would “never send an
email to any of you as long as I live ever again.” Tr. 113. Respondent’s
further inclusion of references to these emails in the suspension letter also
constituted animus towards Cassidy’s protected activities of raising safety
complaints via email. Ex. S-1.

Following Cassidy’s protected
activity of complaining of a less qualified construction foreman—albeit in a
loud manner—Respondent engaged in a farce of an investigation. Respondent never
interviewed most of the witnesses to the argument, including Cassidy. Respondent
ambushed Cassidy with a disciplinary meeting, without providing her any time or
warning to bring forward witnesses or present her side of the events. Tr. 135-137.
This Court is not implying here that the Mine Act generally requires an
employer to afford due process prior to discipline, but only that the manner in
which the investigation and meeting were conducted here is evidence of animus
towards the protected activity.

B.        
Knowledge

“Knowledge of protected activity is
one of the most important factors in a circumstantial case for discrimination.”
KenAmerican Resources, Inc. 37 FMSHRC 2767, 2780 (Dec. 2015) (citing Sherwin
Alumina, LLC, 36 FMSHRC 730, 736 (March 2014)). In the instant case, there
is no question that key decisionmakers knew of Cassidy’s protected activities,
even if all of them may not have been fully aware of all the protected
activities.

According to testimony at hearing,
there were four people involved in the decision to suspend Cassidy: Joshua
Koontz, Eric Schubel, Tina Hilk, and Erica Fisher. Tr. 221-222, 253. Hilk was
present for each of the meetings; she recommended the 10-day unpaid suspension;
and she drafted the suspension letter. Therefore, Hilk had knowledge of the
full extent of Cassidy’s protected activity. Koontz testified that he was not
aware of the September email, but was sent the November email. Tr. 242; Ex. R-J.
However, even if Koontz had not known about the September email at one point,
he was certainly made aware of it when he signed the suspension letter, which
discusses that email in the first paragraph. Ex. S-1. Fisher and Schubel did
not testify at hearing, and it is not clear what knowledge they had. Koontz and
Hilk were responsible for the suspension letter and the suspension meeting, and
their knowledge can by imputed to the other decisionmakers. See See
Nat’l Cement Co. of Cal. , 33 FMSHRC 1059, 1068 (May 2011).

C.        
Coincidence
in Time

With respect
to coincidence in time between the protected activity and the adverse action,
the Commission has noted, “[a] three week span can be sufficiently close in
time,” especially when there is evidence of intervening hostility, animus or
disparate treatment. CAM Mining, LLC, 31 FMSHRC at 1090. Likewise, in All
American Asphalt , a 16-month gap existed between the miners’ contact with
MSHA and the operator’s failure to recall miners from a layoff; however, only
one month separated MSHA’s issuance of a penalty resulting from the miners’
notification of a violation and that recall failure. Sec’y of Labor on
behalf of Hyles v. All American Asphalt , 21 FMSHRC 34 (Jan. 1999).
Similarly, in Pamela Bridge Pero v. Cyprus Plateau Mining Corp. , the
Commission found a five-month gap to constitute close temporal proximity
between the protected activity and the adverse employment action. 22 FMSHRC
1361, 1365 (Dec. 2000). The Commission stated “We ‘appl[y] no hard and fast
criteria in determining coincidence in time between protected activity and
subsequent adverse action when assessing an illegal motive. Surrounding factors
and circumstances may influence the effect to be given to such coincidence in
time.”’ Sec’y of Labor on behalf of Hyles v. All American Asphalt , 21
FMSHRC at 47 (quoting Hicks v. Cobra Mining, Inc. , 13 FMSHRC 523, 531
(Apr. 1991)).

The series of protected activities
that occurred in the instant case took place on September 13, November 15, and December
12, 2019. The meetings and suspension then occurred on September 17, November
18, and December 19, 2019. The time periods between each protected activity and
the Respondent’s reaction were always within a few days, and the time
difference from the first protected activity until the ultimate suspension was
approximately three months. The “fact that the Company's adverse action against
[a miner] so closely followed the protected activity is itself evidence of an
illicit motive.” Donovan v. Stafford Const. Co. , 732 F.2d 954, 960 (D.C.
Cir. 1984). I find that this proximity in time is strong evidence of
discriminatory motive behind Cassidy’s discipline.

D.        
Disparate
Treatment

Respondent argues that Cassidy was
suspended for her “unprofessional” behavior in violation of Employee Conduct
Rule 4. Resp. Reply Brief at 6; Tr. 212-214, 221. This rule prohibits
insubordination, or refusal to perform work, as well as the use “of profane,
obscene, abusive, or threatening language or conduct toward subordinates,
fellow employees, or officials of the company.” Ex. R-H. In the instant case,
evidence was presented of miners yelling and screaming at each other, miners
ridiculing each other, and miners engaging in profanity, and yet most of the
conduct was not by Cassidy and most resulted in no discipline. There is little evidence
that Rule 4 was taken seriously at the mine, except as an ex post facto
excuse for justifying discipline.

Though Cassidy readily conceded and
the evidence shows that she yelled at Knipple concerning the choice of a
construction foreman, yelling between miners was common at the mine. Tr.
127-128, 167. Section Coordinator Don Blumetti regularly yelled at Cassidy and
suffered no discipline as a result. Tr. 129-131. In the November meeting,
Watson sat close to Cassidy and yelled at her to the point where his voice was
cracking, and yet no discipline resulted from his treatment of her. Tr.
104-106. Koontz testified that miners were ridiculing Knipple based on what
occurred between him and Cassidy, with some even engaging in profanity, yet
there is no indication that any of them were disciplined. Tr. 218.

Respondent argued that the 10-day
suspension was consistent with other discipline meted out at Enlow Fork. To
support this position, Respondent introduced a short letter from over five
years earlier of a miner that was suspended for 10 days. Ex. R-R. This letter
provided few details that could lead this Court to conclude that there was any
similarity in the conduct or the context between Cassidy’s case and the miner
referenced in the old letter. By all accounts, Enlow Fork was a stressful work
environment, made more stressful due to a recent fatality, and yelling was
common. The fact that the only disciplinary letter that Hilk was able to find
was from more than five years prior and involved a situation about which she
had no firsthand knowledge, shows just how rarely yelling between miners
results in discipline.

IV.      
Affirmative
Defense

Having found that the miner engaged
in protected activities, suffered an adverse employment action, and that there
was a nexus between the two, the operator may still avoid liability if it can
show that it would have disciplined her for unprotected activity alone. See MSHA
obo Riordan v. Knox Creek Coal , 38 FMSHRC 1914 (Aug. 2016). The Commission
has explained:

that an operator's
business justification defense should not be “examined superficially or be
approved automatically once offered.”  Haro v. Magma Copper Co. , 4
FMSHRC 1935, 1938 (Nov. 1982);  see Cumberland River Coal Co. v.
FMSHRC,  712 F.3d 311, 320 (6th Cir. 2013). In reviewing defenses, the
Judge must “determine whether they are credible and, if so, whether they would
have motivated the particular operator as claimed.”  Bradley v. Belva
Coal Co. , 4 FMSHRC 982, 993 (June 1982). The Commission has held that
“pretext may be found … where the asserted justification is weak, implausible,
or out of line with the operator's normal business practices.” Sec'y of
Labor on behalf of Price v. Jim Walter Res., Inc. , 12 FMSHRC 1521, 1534
(Aug. 1990) (citing  Haro , 4 FMSHRC at 1937-38).

Id. at 1925.

In the instant case, the Respondent
argues that even if this Court finds discrimination, it would have disciplined
Cassidy based solely on her yelling at Knipple. Resp. Brief at 10. Aside
from the letter concerning another miner from five years earlier discussed supra ,
Respondent offers little convincing support for this argument. In lieu of such
evidence-based support, Respondent’s counsel employs exaggerated descriptives,
such as “verbal assault” to liken Cassidy’s action to criminal or tortious
conduct. Resp. Brief at 1, 7, 9, 10. This language is wholly
inappropriate to describe what occurred. [31] The term “assault” is a
term of art, meaning, “The threat or use of force on another that causes that
person to have a reasonable apprehension of imminent harmful or offensive
contact; the act of putting another person in reasonable fear or apprehension
of an immediate battery by means of an act amounting to an attempt or threat to
commit a battery.” ASSAULT , Black's Law Dictionary (11th ed. 2019).
“Verbal assault[s],” as defined by various statutes and court decisions, are “designed
to instill serious fear.” Frederick M. Lawrence,  The Collision of
Rights in Violence-Conducive Speech , 19 Cardozo L. Rev. 1333, 1348 (1998). There
is no evidence that Knipple felt any of these things during the argument with
Cassidy.

In the instant case, Respondent has
provided little credible evidence or arguments that it would have disciplined
Cassidy regardless of her protected activity.

Remedies and Penalties

A successful complainant
is entitled to be made whole for the entire period of her unemployment, plus
interest. See Local Union 2274, District 28, UMWA v. Clinchfield Coal Co. ,
10 FMSHRC 1493 (Nov. 1988). The Commission has recognized that certain events, such
as a bona fide reduction in force, can toll a miner’s right to back pay, the
burden to show that work is no longer available for the complainant lies
squarely with the employer. KenAmerican Resources, Inc ., 31 FMSHRC 1050,
1054-55 (Oct. 2009) (citing Kenta Energy, Inc ., 11 FMSHRC 1638 (Sept.
1989)). The operator must make this showing by a preponderance of the evidence.
Id. ; C.R. Meyer and Sons Co. , 35 FMSHRC 1183, 1188 (2013). In the
absence of evidence identifying any basis for tolling or other restrictions on
lost wages, Complainant is entitled to be made whole for the entire period of her
unemployment, plus interest. See Clinchfield Coal Co ., 10 FMSHRC 1493
(Nov. 1988).

Having
found that Respondent discriminated against Cassidy in violation of the Mine
Act, the next issues are the proper remedies and civil penalties. [32]
With respect to remedies, the parties have stipulated that Cassidy’s lost
earnings due to her unpaid suspension amounted to $4,265.04 in lost wages and
$255.90 in lost employer contributions to Cassidy’s 401(k). Jt. Stip. 8, 11. This
Court finds it appropriate to award this full back pay and lost employer
contribution, plus interest. See GMS Mine Repair & Maintenance , 38
FMSHRC 2664, 2683 (Oct. 2016) (citing Local 2274, District 28, UMWA , 10
FMSHRC 1493, 1505 (Nov. 1988)). In addition to backpay, the Secretary requests
that the Respondent be ordered to expunge from Cassidy’s personnel file any
documentation, records, or other references to her suspension. Sec’y Brief
at 30.

The Secretary further
proposes a civil penalty of $15,000. Sec’y Brief at 30. The
principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well
established. Section 110(i) of the Mine Act delegates to the Commission and its
judges “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The duty of proposing penalties is delegated to the Secretary.
30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that
it intends to challenge a penalty, the Secretary petitions the Commission to
assess the penalty. 29 C.F.R. § 2700.28. The Court’s assessment here is independent,
and the Secretary’s proposal “is not a baseline or starting point,” that the Court
has used in its assessment. Sec’y of Labor, MSHA v. The American Coal Co. ,
38 FMSHRC 1987 (Aug. 2016). The Act requires that in assessing civil monetary
penalties, the judge must consider six statutory penalty criteria: the
operator’s history of violations, its size, whether the operator was negligent.
the effect on the operator’s ability to continue in business, the gravity of
the violation, and whether the violation was abated in good faith. 30 U.S.C. §
820(i). In keeping with this statutory requirement, the Commission has held
that judges must make findings of fact on the statutory penalty criteria. Sellersburg
Stone Co. , 5 FMSHRC 287, 292 (Mar. 1983), aff’d , 736 F.2d 1147, 1152
(7th Cir. 1984). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by
proper consideration of the statutory criteria and the deterrent purposes
underlying the Act’s penalty scheme.” Id. at 294; see also Cantera
Green , 22 FMSHRC 616, 620 (May 2000).

The instant
case is an egregious case that warrants a civil penalty of $20,000. At the time
of the discrimination in this matter, the Mine had a history of five prior
105(c) violations. Discrimination Complaint Ex-B .
Furthermore, the mine was in the largest category of mines, and the controlling
entity in the largest category under MSHA’s tables in Part 100.3. Id.
The parties have stipulated that the Secretary’s proposed penalty of $15,000
will not affect Respondent’s ability to continue in business, and there is
nothing in evidence that suggests that an increased penalty of $20,000 would
affect Respondent’s ability to continue in business. Jt.
Stip. 12 . Respondent’s actions displayed a sustained series of
discriminatory conduct following multiple safety complaints, which exhibit a
high degree of culpability. The gravity of the violation was significant in
that it caused Cassidy to lose 10 days of pay, silenced a safety advocate, and
sent a message in the mine that safety complaints would lead to discipline.
Such conduct has the effect of chilling the speech of miners. Lastly,
Respondent made no good faith effort to rectify its repeated violations of
Cassidy’s rights. A $20,000 civil penalty is appropriate to effectuate the
purposes of the Mine Act and its core anti-discrimination provisions.

CONCLUSION AND ORDER

Based on
the foregoing, I find that Respondent violated Section 105(c) of the Act by
discriminating against Cassidy for engaging in protected activity.

Respondent
is ORDERED to pay Cassidy $4,265.04 in lost
wages and $255.90 in lost employer contributions to her 401(k) , plus pre-judgment
interest. [33] Further, Respondent
shall expunge from Cassidy’s personnel file any documentation, records, or
other references to her suspension.

It is ORDERED that Respondent
post this decision at the Enlow Fork Mine in a conspicuous unobstructed place
where notices to employees are customarily posted, for a period of 60 days.

It is FURTHER
ORDERED that Respondent pay a civil penalty of $20,000.00 within 30 days
of this Decision to the Secretary of Labor. [34]

/s/
John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution (Via E-mail and
First-Class Mail):

Brian P. Krier, U.S. Dept of Labor, Office of the Regional
Solicitor, 1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19103, [email protected]

Nicholas J. Bell, Esq. Buchanan Ingersoll & Rooney PC,
Union Trust Bldg., 501 Grant St., Suite 200, Pittsburgh, PA 15219-1410, [email protected]

Erin J. McLaughlin, Esq., Buchanan Ingersoll & Rooney
PC, Union Trust Bldg., 501 Grant St., Suite 200, Pittsburgh, PA 15219-1410, [email protected]

Barbara E. Cassidy, 20 Plum Run Lane, Scenery Hill, PA 15360,
[email protected]

[1] In this decision, the joint stipulations, transcript,
the Secretary’s exhibits, Respondent’s exhibits, and joint exhibits are
abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S-#,” “Ex. R-#,” and “Ex. J-#”
respectively.

[2] At the time of hearing, Barbara E. Cassidy was
unemployed. Tr. 19.

[3] Cassidy has mine foreman papers,
which qualifies her to be a section or shift foreman in the Commonwealth of
Pennsylvania, as well as to sign books when necessary and to conduct pre-shift
and on-shift examinations. Tr. 21-22.

[4] At the time of hearing, Knipple had been the shift
foreman for Consol for two years. Tr. 354. In this capacity, he set up the
shift and crews and assigned foremen to specific job responsibilities. Tr. 355.

[5] Cassidy had email access
underground in the mine in the last six to eight months that she was at the
Archer Portal. Tr. 31-32.

[6] At the time of hearing, Josh
Koontz had been the general superintendent at Enlow Fork Mine since August
2018. Tr. 207. This is the chief health and safety official at the coal mine.
Tr. 207. Prior to this position, he was the assistant superintendent at Enlow
Fork since 2017, and assistant superintendent at Consol’s Harvey Mine from
2015-2017. Tr. 208. From 2000-2015, Koontz worked for Consol and then Murray
Energy. Tr. 208.

Koontz’s responsibilities as general superintendent
included the safety of the coal mine for all the hourly and salaried employees
and contractors, as well as state and federal legal compliance. Tr. 208. He was
also responsible for productivity and cost issues. Tr. 208-209.

[7] Tina Hilk was a human resources supervisor at Enlow
Fork Mine, where her responsibilities included hiring, training, and employee
relations. Tr. 265. Prior to working for Enlow Fork, Hilk was an educator. Tr.
266.

[8] Hilk described safety as
Consol’s “core value” and testified that miners were “empowered” to report
anything that is unsafe. Tr. 268-269. She testified that employees could report
safety concerns without fear of reprisals. Tr. 269. Hilk testified that she was
not a safety expert and was unable to distinguish between what was and what was
not a safety violation. Tr. 285.

[9] The legal requirements
for a pre-shift examination are to examine the mine three hours before the next
coal-producing shift for gases and other dangers, including MSHA and state mandatory
safety standards. Tr. 187, 190. There is no law that encompassed this sort of
ride shortage, so it would not be something that would be included in the
pre-shift report. Tr. 187-188.

[10] The piece of coal was 20x7x4 feet
large. Tr. 70-72.

[11]
There were no hourly miners included in the email concerning bolts. Tr. 314.

[12]
Cassidy was never suspended for writing in the pre-shift books, but she was
disciplined in other ways, including receiving, “a lot of flak, even harassment
from some of the other guys including, you know, Don Blumetti or Ron Houchins,
who is the assistant mine foreman over at Pleasant Grove. They don’t like what
I put in the book.” Tr. 191-192. On one occasion, Cassidy wrote that the lights
were not working at a belt transfer, and Koffler questioned the shift foreman
on the next shift if it was really a violation. Tr. 192. On other occasions,
Cassidy wrote up wobbly steps, insufficient dust, stuck doors, and a corner
falling on a belt line. Tr. 192-195. The harassment that Cassidy received as a
result of making entries in the pre-shift examiner reports sometimes
discouraged her from making such entries. Tr. 203. Instead, she would sometimes
just fix the problems herself. Tr. 203-204.

[13] The foreman’s table is where
pre-shift and on-shift books were kept, and where Cassidy would have to go at
the end of her shift. Tr. 97. She described it as “the obvious place that they
would wait for me, anyone would wait for me, if they want to see me at the end
of a shift.” Tr. 97.

[14] A spinner is when the expander on the bolt doesn’t
“catch,” or the glue didn’t do its job and the machine keeps spinning the bolt.
Tr. 96. When that happens, an employee should put in another bolt right next to
it, but not everyone does so. Tr. 96-97.

[15]
Hilk described Watson as raising his voice at Cassidy, but not yelling at her.
Tr. 291.

[16] Cassidy had not sent the email to any of these
people. Tr. 80-86.

[17] Knipple testified at hearing and this evidence was
unrebutted.

[18] Cassidy had heard from other
miners that Blumetti was told that if he yelled at a miner one more time, he
would be gone. Tr. 187. However, there were several instances of him yelling
after the supposed warning, and nothing ever happened. Tr. 187.

[19] The transcript alternates between the name Bill Bentz
and Bill Binns. For consistency, the name Bill Bentz will be used throughout.

[20] In his testimony, Koontz inserted the word
“profanity” in place of the profanity that miners were using to mock Knipple.

[21] Hilk’s contemporaneous notes of the meeting
corroborates that Koontz made this accusation, stating, “Josh said she has gone
to the state…” Ex. R-X.

[22] Rule 4 states in full, “Insubordination (refusal or
failure to perform work assigned or to comply with supervisory direction) or
use of profane, obscene, abusive, or threatening language or conduct toward
subordinates, fellow employees, or officials of the company.” Ex. R-H.

[23] This Court found Cassidy to be an honest and
forthright witness, even when admitting her own shortcomings. The testimony was
consistent and credible.

[24] At hearing, Respondent’s counsel
repeatedly questioned Cassidy about the shortage of rides and whether it was a
matter of convenience, and in each answer she stated that it was not. Counsel
cannot cite to this page in the transcript for the affirmative proposition that
the rides were a matter of convenience when the witness’ answers state the
exact opposite.

Q. Okay. In fact, the availability
of rides was a matter of convenience for you, correct?

A. No, sir.

Q. It was more convenient for you
to do your job and for others to do their job in the mine if there were more
rides available; isn't that right?

A.
It would be necessity when it takes three hours to walk to their job site
carrying tools. That is not convenience. That is a necessity.

Tr. 174.

Q. Having a ride just helps you to
do your job more quickly, correct?

A. No, not necessarily.

Q. Well, it gives you the
convenience of getting a ride as opposed to walking a pre-shift exam?

A. Is that a question?

Q. That is a question. Isn't that
correct? It gives you the convenience of getting a ride as opposed to having to
walk your entire pre-shift exam?

A. No, sir. Again, that's not true.

Q. Having more rides available
allows you to -- allows you additional time to be able to perform your
pre-shift exam, correct?

A.
No, sir. I wouldn't say that either. Most of what we do is walking. The belt
lines, you can't do that with a ride. So, to be dropped off so you are there
when your exam starts, yes. To have a ride for that, it doesn't -- a ride
doesn't help me. [It] hurts me. I don't need the ride.

Tr. 175.

[25] This Court gives Respondent the benefit of the doubt
that it did not purposely misstate the record and instead took Cassidy’s
testimony concerning the section of her email with proposed solutions out of
context. In this specific context, Cassidy stated, “I wasn’t looking for an
answer. I was just trying to spark some interest, maybe.” Tr. 41-42.

[26] Commission ALJs routinely find safety complaints
concerning issues that do not violate the Mine Act or regulations to constitute
protected activity. See e.g. SOL obo George M Scoles v. Harrison County Coal
Co., 40 FMSHRC 1393 (Sept. 20, 2018); aff’d Harrison County Coal Co. v.
FMSHRC, 790 Fed. Appx. 210 (D.C. Cir. 2019) (miner’s complaint to supervisor
about harassment and complaint to management about assault constituted safety
complaints.);

SOL obo Aaron Lee Anderson v. A&G Coal Corp. and Chestnut
Land Holdings, LLC , 39
FMSHRC 165, 173 (Jan. 19, 2017) (truck driver’s comments over radio about dust
in pit and request for water truck constituted protected activity.) remanded
on other grounds , 39 FMSHRC 315 (Feb. 2017); SOL obo Charles Riordan v.
Knox Creek Coal Corp ., 38 FMSHRC 1914, 1922 (Aug. 2016) (Commission
rejected Respondent’s argument that miner’s ventilation concerns were not
protected because the “comments were nothing more than discussions between mine
managers trying to address problems and were motivated by a desire to improve
production, not to ensure safe working conditions.”); MSHA obo Richard B.
Harrison v. Consolidation Coal Co. , 37 FMSHRC 1497, 1506-1507 (July 2,
2015) (miner’s complaint about bonus plan that he feared would diminish safety
at the mine found to constitute protected activity.); Ronald E. Keim, III v. Cordero Mining LLC , 36 FMSHRC 963, 971 (April 16, 2014) (complaint about
co-worker creating a hostile work environment
that made it difficult for miner’s crew to safely perform their jobs was
protected activity.); SOL obo Regald Robbins v. Alden Resources, LLC , 36
FMSHRC 1927 (July 29, 2014) (miner’s comments about the need for 5-foot roof
bolts constituted protected activity).

[27] This Court found all parties to be
quite sincere in expressing their sorrow over the loss of Tanner McFarland.
Miners belong to an ancient brotherhood of grief, their history steeped in
disability, death, and disaster. This Court well recognizes that the death of a
miner anywhere affects miners everywhere.

However,
the very circumstances of this real grief at Enlow Fork would have made and did
make Cassidy’s safety complaints all the more distressing and aggravating to
the operator’s management team.

[28] The Respondent’s counsel
incorrectly stated that the bolts in question were five inches long, rather
than five feet long.

[29] With regard to Respondent’s narrow
understanding of what constitutes safety complaints, see the discussion supra
related to the September email.

[30] This Court presumes that the Respondent’s counsel is
not purposefully misstating the record, but instead is simply not fully
knowledgeable about the nature of mining and mine safety, which leads it to
state in its brief that the proof that Cassidy did not consider her questions
safety-related was because she did not record them in the pre-shift examination
book. Resp. Brief at 9.

[31] This Court found much of the
language employed by Respondent’s counsel inappropriate. Cassidy has worked for
decades in mines as one of only a handful of women. She described various
indignities and hurdles she had to face as a result, including when upon
meeting Knipple, when he refused to talk to her and embarrassed her in a room
full of her colleagues by stating, “I don’t talk to women.” Tr. 116. Cassidy
should not have to face such gendered misrepresentations of her actions in a
court of law.

Respondent’s
counsel repeatedly used language that was misogynistic and ableist, whether
consciously or subconsciously. This included their repeated attempts to
describe Cassidy’s argument with Knipple as a form of “emasculation” Tr. 198; Resp.
Brief at 1. They even went so far as to ask Cassidy whether she was
responsible for emasculating Knipple, even if it was not her intent. Tr. 198.
Such questions imply that a woman who yells at a man is guilty of emasculating
him no matter what the content of her speech or her intent. Respondent’s
counsel further described Cassidy’s safety emails as “frantic,” Resp. Brief
at 6, also stating that she “frantically shouted in her email,” and saying that
they had an “unhinged tone.” Resp. Reply Brief at 2. These descriptions
are inaccurate, and this Court is troubled by Respondent’s counsel’s use of
them.

[32] Respondent made no arguments concerning remedies or
penalties in its post-hearing briefs.

[33] The interest should be calculated using the  Arkansas-Carbona/Clinchfield
Coal Co.  method, which provides that the amount of interest equals the
quarter's net back pay multiplied by the number of accrued days of interest
multiplied by the short-term federal underpayment rate.  Sec'y of Labor
on behalf of Bailey v. Arkansas-Carbona Co.,  5 FMSHRC 2042, 2052 (Dec.
1983),  as modified by Clinchfield Coal Co. , 10 FMSHRC 1493, 1505-06
(Nov. 1988).

[34] Payment should be paid
electronically at  Pay.Gov , a service of the
U.S. Department of the Treasury, at  https://www.pay.gov/public/form/start/67564508 .
Alternatively, send payment (check or money order) to: U.S. Department of
Treasury, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390 .
Please include Docket and A.C. Numbers.