Reading Anthracite Company

Plain-English summary

William Kaczmarczyk alleged that Reading Anthracite Company discriminated against him after he reported health and safety problems and applied for haul truck and water truck positions. The Commission agreed with the ALJ that Reading had shown legitimate business reasons for not awarding the haul truck position and for delaying the water truck position because of Kaczmarczyk's medical restrictions and the jobs' physical requirements. The Commission affirmed the ALJ's decision that Reading did not violate section 105(c) of the Mine Act. Commissioner Marks dissented and would have found discrimination and remanded for consideration of damages and a penalty.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c), 29 C.F.R. § 2700.75(a)
• Outcome: The Commission affirmed the ALJ's dismissal of the discrimination complaint.
• Key point: An operator may defeat a Mine Act discrimination claim by proving it would have taken the same adverse actions for legitimate, nondiscriminatory business reasons.

Full text (FMSHRC public release)

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

                                         June 15, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf of WILLIAM KACZMARCZYK :
:
v. : Docket No. PENN 97-157-D
:
READING ANTHRACITE COMPANY :

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

                                           DECISION

BY: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners

    In this discrimination proceeding, arising under the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), Administrative Law Judge
Avram Weisberger determined that Reading Anthracite Company (“Reading”) did not violate
section 105(c) of the Act,1 30 U.S.C. § 815(c), when it rejected William Kaczmarczyk for the
position of temporary haul truck driver and delayed awarding him the position of water truck
driver. 20 FMSHRC 397, 411 (Apr. 1998) (ALJ). The Commission granted the petitions for
discretionary review filed by Kaczmarczyk and the Secretary of Labor challenging the judge’s
decision. For the reasons that follow, we affirm the judge’s decision.

   1
       Section 105(c)(1) provides in pertinent part:

              No person shall discharge or in any manner discriminate against or
              cause to be discharged or cause discrimination against or otherwise
              interfere with the exercise of the statutory rights of any miner, [or]
              representative of miners . . . because of the exercise by such miner,
              [or] representative of miners . . . of any statutory right afforded by
              this Act.

                                       21 FMSHRC 572

Page 2

                                             I.

                            Factual and Procedural Background

    Kaczmarczyk began working for Reading in 1976 at its Maple Hill/Ellangowan coal mine

in Pennsylvania. Tr. 12-13. As a result of injuring his back at work in 1989, he stopped working
and was placed on workers’ compensation. 20 FMSHRC at 398; S. Ex. 4 at 19, 37-44. In
January 1992, he presented Reading with a report from Dr. Keith R. Kuhlengel, his personal
physician and a neurosurgery specialist, stating that he was able to return to work on a trial basis.
20 FMSHRC at 398; S. Exs. 26 & 29. At Reading’s request, a second physician, Dr. Robert
Gunderson, also examined Kaczmarczyk and determined he was able to work. 20 FMSHRC at
398; S. Ex. 30. He returned to work in January 1992 as an electrician on Reading’s light duty
program.2 20 FMSHRC at 398.

    From June to September 1995, Kaczmarczyk drove a haul truck and a water truck on an

irregular basis. Id. at 399. In July and August 1995, he reported a number of health and safety
problems to Reading concerning the company’s trucks and pumphouse. Id. at 406-07. On
September 13, 1995, Kaczmarczyk was told by Frank Derrick, Reading’s general manager, to
pick up garbage in an area that included an incline, but he refused because he believed it was
unsafe. Id. at 407; Tr. 124-25, 218-19.

    In late September 1995, Kaczmarczyk re-injured his back and was again placed on

workers’ compensation. 20 FMSHRC at 405 n.3, 411. On December 20, Dr. Kuhlengel issued a
report that Kaczmarczyk could return to work provided his job did not involve bending,
squatting, twisting, pushing, pulling, crawling, climbing, kneeling, or overhead work. Id. at 400.
He also stated that Kaczmarczyk should not lift or carry over 10 pounds. Id. A copy of the
report was given to Reading. Tr. 165-66. On June 5, 1996, Dr. Kuhlengel evaluated
Kaczmarczyk and determined that he could return to work, but restricted him from lifting more
than 10 pounds, doing overhead work, and bending, pushing, or pulling. 20 FMSHRC at 410-11;
S. Ex. 12 at 2. A copy of the evaluation was sent to Reading. 20 FMSHRC at 410.

     On June 24, Reading posted a water truck driver position and Kaczmarczyk applied for it.

S. Ex. 8; Tr. 351-53. Under the Contract, such posted positions at Reading are awarded to the
most senior and qualified employee who applies. 20 FMSHRC at 400-01; Tr. 435-36; S. Ex. 4 at

85. The position was awarded to a more senior driver and Kaczmarczyk did not dispute the
    award. Tr. 351-53. On September 25, Dr. Kuhlengel sent Reading a letter repeating the
    restrictions he recommended on June 5 but adding that Kaczmarczyk was able to drive a truck
    with an air seat. 20 FMSHRC at 400; S. Ex. 13.

    2
    According to the collective bargaining agreement covering Reading’s employees (the
    “Contract”), the light duty program involves work “in which occupations [sic] hazards, lifting of
    weight and exposure to extremes of temperature, dampness and dust are substantially less than
    those of the job held by the Miner at the time of his disabling accident . . . .” S. Ex. 4 at 37-38.

                                     21 FMSHRC 573
    

Page 3

    On October 8, 1996, Reading posted an opening for a temporary haul truck driver

position and Kaczmarczyk applied for it. S. Ex. 25. On October 16, Reading awarded the
position to another employee even though Kaczmarczyk was the most senior applicant. 20
FMSHRC at 401; Tr. 16. Later that day, pursuant to the Contract, Kaczmarczyk had a Step 1
grievance meeting with Reading to appeal its decision not to award him the haul truck job. Jt.
Ex. 1; R. Ex. 3.

     At a Step 2 grievance meeting on November 6, Kaczmarczyk told Reading that he had a

doctor’s authorization to work as a truck driver. 20 FMSHRC at 402. On November 11,
Kaczmarczyk filed a complaint with MSHA claiming that Reading discriminated against him
when it did not award him the haul truck position. Compl. at 6. On November 13, Dr.
Kuhlengel issued a report stating that “[a]s long as the [truck driver] position is within the stated
restrictions, [Kaczmarczyk] should be able to perform that job. His restrictions continue to be no
overhead working as well as a 10-pound lifting restriction. He should not be bending, squatting,
twisting, pulling, crawling, or climbing.” S. Ex. 14 at 2. At a Step 3 grievance meeting on
November 14, Kaczmarczyk and Jay Berger, a United Mine Workers of America representative,
informed Reading that Dr. Kuhlengel had released Kaczmarczyk to drive a haul truck. 20
FMSHRC at 402. At the meeting, Kaczmarczyk asked Reading to prepare a job analysis of the
haul truck position. Id. at 403.

    On December 27, Derrick sent a letter to Berger stating that Kaczmarczyk was not

awarded the position because of his medical restrictions. S. Ex. 21. Following a request for
clarification from Kaczmarczyk (20 FMSHRC at 403), Dr. Kuhlengel sent a letter to him on
January 19, 1997, stating that “you are able to drive a truck with an air seat. You would not be
able to load and unload . . . a freight truck because that obviously would require pushing, pulling,
carrying, climbing and twisting, which will aggravate your spinal condition.” S. Ex. 15.
Kaczmarczyk gave a copy of the letter to Reading. Tr. 376.

   At Berger’s request, Dr. Kuhlengel sent Berger a letter on February 10, stating that

Kaczmarczyk’s condition would not prevent him from climbing several steps to a truck cab. 20
FMSHRC at 403; S. Ex. 7. He added that Kaczmarczyk could check the truck’s fluid levels
and that he should keep “bending, squatting, twisting, pushing, pulling, crawling, climbing and
kneeling . . . to less than 15 minutes total in an 8-hour day.” S. Ex. 7.

    At a Step 4 grievance meeting on February 11, Berger gave Derrick a copy of Dr.

Kuhlengel’s February 10 letter. 20 FMSHRC at 403; Tr. 392. On February 24, Reading sent a
job analysis of the haul truck position (the “haul truck job analysis”) to Dr. Kuhlengel, who
issued a report on March 7 indicating that Kaczmarczyk’s physical restrictions did not prevent
him from working as a haul truck driver. 20 FMSHRC at 404. On that same day, Reading
informed Kaczmarczyk by letter that he should make arrangements to return to work. Id.; R. Ex.
4.

                                     21 FMSHRC 574

Page 4

     On March 10, 1997, Reading called Kaczmarczyk to tell him to report to work as a haul

truck driver. 20 FMSHRC at 404; Tr. 207. When he went to the mine a half hour after the call,
he was told that the haul truck driver position no longer existed because of the completion of a
new conveyor belt system on March 2. 20 FMSHRC at 404; Tr. 376. Upon learning that the
haul truck driver position was not available, Kaczmarczyk requested a job analysis of the
position of water truck driver, apparently with a view to bumping into that position. Tr. 182,
276, 380-81. On March 13, Reading completed its job analysis of the water truck position and
sent it to CRA Managed Care, Inc. (“CRA”),3 which forwarded it to Dr. Kuhlengel on April 9.
20 FMSHRC at 401, 405. The job analysis indicated that the water truck position involved
similar physical demands as the haul truck position but in addition required climbing eight times
a shift, standing for a total of one hour, walking a total of one hour, and turning a water valve.
Id. at 405; S. Ex. 20. Dr. Kuhlengel issued a report on May 16 stating that Kaczmarczyk was
physically able to drive a water truck. 20 FMSHRC at 405. On May 19, Kaczmarczyk returned
to work at Reading as a water truck driver. Id.

   Kaczmarczyk’s discrimination complaint concerning the haul truck position proceeded to

hearing on November 18 and 19, 1997. During the hearing, the judge amended the complaint, at
the Secretary’s request and Reading’s agreement, to include a second adverse action covering
Reading’s alleged delay in awarding Kaczmarczyk the position of water truck driver. Tr. 32-39.

    The judge held that Reading did not discriminate against Kaczmarczyk in violation of

section 105(c) of the Mine Act, 30 U.S.C. § 815(c). 20 FMSHRC at 411. He found that
Kaczmarczyk engaged in protected activity when he reported health and safety problems to
Reading during July and August 1995, and that Reading took adverse actions toward
Kaczmarczyk when it rejected him for the temporary haul truck job and delayed awarding him
the water truck job. Id. at 406-07. The judge found that the Secretary established a prima facie
case of discrimination by showing some discriminatory intent by Reading when it took these
adverse actions against Kaczmarczyk. Id. at 409-410. However, based on Kaczmarczyk’s
medical restrictions, the judge determined that Reading would have rejected him for the haul
truck position in any event for the legitimate business reason that Kaczmarczyk could not meet
the physical requirements of the job. Id. at 410-11. The judge also found that Reading had a
legitimate business reason for obtaining a job analysis of the water truck position because the job
was more physically demanding than the haul truck driver position. Id. at 411. Accordingly, the
judge determined that Reading established its affirmative defense by proving it would have taken
the adverse actions solely for legitimate business reasons related to Kaczmarczyk’s inability to
perform the physical demands of the jobs. Id.

   3
    CRA is Reading’s contracted managed care consultant with respect to workers’

compensation claims. Tr. 14.

                                    21 FMSHRC 575

Page 5

                                            II.

                                       Disposition

    The Secretary argues that the judge erred in finding that Reading did not violate section

105(c). S. PDR at 1-2.4 She asserts that he incorrectly applied a “not unreasonable” standard
when analyzing Reading’s affirmative defense instead of determining whether Reading proved it
would have acted as it did for nondiscriminatory reasons alone. Id. at 8-12. The Secretary
argues that the judge failed to place the burden of persuasion on Reading to establish its
affirmative defense. Id. at 12 n.3. She contends that the judge’s conclusion that Reading
established its affirmative defense is not supported by substantial evidence. Id. at 20-27. She
also argues that the judge failed to consider relevant evidence concerning Reading’s delay in
completing the haul truck job analysis and its failure to pursue alternatives, such as contacting
Kaczmarczyk’s doctor to clarify his restrictions. Id. at 12-19. The Secretary requests that the
Commission reverse the judge’s decision and remand the case for determination of damages and
assessment of an appropriate civil penalty. Id. at 27.

    Reading responds that the judge applied the correct standard to its affirmative defense by

determining that it would have carried out the adverse actions for nondiscriminatory reasons
alone. R. Br. at 6-9. It argues that the judge compared Kaczmarczyk’s restrictions with the
physical requirements of the haul truck job and concluded correctly that, at the time the job was
posted, Kaczmarczyk could not meet the physical demands of the job. Id. at 13-16. Reading
asserts that the judge correctly found that it did not discriminate against Kaczmarczyk by
performing a job analysis of the water truck position because Kaczmarczyk requested the job
analysis. Id. at 16-17. In addition, the operator contends that the judge considered all the
relevant evidence in the record. Id. at 9-13. Reading requests that the Commission affirm the
judge’s determination. Id. at 17.

   A.      Whether the Judge Applied the Correct Legal Standard

    A complainant alleging discrimination under the Mine Act establishes a prima facie case

of prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Secretary of Labor on behalf of Pasula v. Consolidation Coal
Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may rebut the prima
facie case by showing either that no protected activity occurred or that the adverse action was in

   4
    Pursuant to Commission Procedural Rule 75(a), 29 C.F.R. § 2700.75(a), the Secretary

and Kaczmarczyk designated the Secretary’s petition as their opening brief.

                                    21 FMSHRC 576

Page 6

no part motivated by protected activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator
cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by
proving that it also was motivated by the miner’s unprotected activity and would have taken the
adverse action for the unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799
800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987)
(applying Pasula-Robinette test). On these issues, the operator bears the ultimate burden of
persuasion. Pasula, 2 FMSHRC at 2800.

    Here, at issue is whether the judge, having found a prima facie case of discrimination by

Reading, used the correct legal standard when examining Reading’s affirmative defense. We
conclude that he did. Concerning the haul truck position, the judge found that Reading had “a
legitimate business concern . . . that Kaczmarczyk be physically capable of operating a haul
truck.” 20 FMSHRC at 410. Similarly, with respect to the water truck position, the judge found
that Reading had a “legitimate concern” whether Kaczmarczyk could perform the job. Id. at 411.
The judge concluded that Reading would have taken the adverse actions for legitimate
nondiscriminatory business reasons alone. Id.

   We do not agree with the Secretary’s argument that the judge erred by basing his analysis

on whether Reading’s adverse actions were reasonable business decisions rather than on whether
it would have acted as it did for nondiscriminatory reasons alone. Although the judge stated that
Reading’s business concerns were “not unreasonable,” his conclusion that it would have taken
the adverse actions solely for legitimate business reasons is faithful to Pasula-Robinette. Id. at
410-11.

    We also do not agree with the Secretary’s argument that the judge failed to shift the

burden of persuasion to Reading in his analysis of its affirmative defense. S. PDR at 12 n.3. The
judge’s statements that “Reading has established its affirmative defense” and “Reading has
established that the adverse actions complained of would have been taken . . . based solely upon”
nondiscriminatory grounds show that he properly placed the burden of persuasion on Reading.
20 FMSHRC at 410-11.

                                    21 FMSHRC 577

Page 7

   B.      Whether Substantial Evidence Supports the Judge’s Finding that Reading
           Established an Affirmative Defense

           1.     Haul Truck Driver Position

    In determining whether substantial evidence5 supports the judge’s finding that Reading

established an affirmative defense for failing to award Kaczmarczyk the haul truck job, we
examine two subsidiary issues: first, whether the judge failed to consider evidence that Reading
delayed the haul truck job analysis and failed to pursue other alternatives in order to avoid
awarding the job to Kaczmarczyk; and second, whether there is sufficient evidence in the record
to support the judge’s finding that Reading prevailed on its affirmative defense. Contrary to the
Secretary’s assertions, the judge’s decision indicates that he did consider the Secretary’s
arguments. He stated that he took into account the Secretary’s claim “that the only motive was
one of retaliation as set forth in pages 9-25 of [her] brief,” which included her assertion that
Reading purposefully delayed offering Kaczmarczyk the haul truck position and failed to pursue
alternatives such as contacting his doctor. 20 FMSHRC at 410; S. Post-hearing Br. at 9-25. The
judge noted the Secretary’s position that pretext was shown by evidence that it took Reading four
months to contact Dr. Kuhlengel following Kaczmarczyk and Berger’s request to do so. 20
FMSHRC at 410. The delay in contacting Dr. Kuhlengel and the delay in creating a job analysis
are closely related because Reading had to contact Dr. Kuhlengel in order to complete the job
analysis. Id. at 404; Tr. 59-60.6 In terms of Reading’s obligations to pursue alternatives, the
judge found that Reading was not obligated by previous practice or the Contract to contact
Kaczmarczyk’s doctor or make referrals to other doctors.7 20 FMSHRC at 402. Moreover, the

   5
     When reviewing an administrative law judge’s factual determinations, the Commission

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable
mind might accept as adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that “fairly detracts” from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
6
In the “Findings of Fact” section of his decision, the judge described the events and
dates surrounding Reading’s rejection of Kaczmarczyk for the haul truck position,
Kaczmarczyk’s request to Reading for a job analysis of the position, and Reading’s issuance of
the job analysis. 20 FMSHRC at 400-04.
7
We disagree with our dissenting colleague’s argument that Reading’s affirmative
defense should be rejected on the ground that, contrary to established practice, Reading did not
require Kaczmarczyk to obtain a second medical opinion regarding his ability to perform the haul
truck driver duties. Slip op. at 15-16; Tr. 465. The dissent claims that this treatment compares

                                   21 FMSHRC 578

Page 8

judge went on to state: “I have considered all of these arguments, as well as the balance of the
Secretary’s arguments as set forth in the post hearing brief. For the reasons that follows [sic], I
conclude that Reading has established its affirmative defense, and I reject the Secretary’s
arguments.” 20 FMSHRC at 410.

    Commission Procedural Rule 69(a) requires that a Commission judge’s decision “shall

include all findings of fact and conclusions of law, and the reasons or bases for them, on all the
material issues of fact, law or discretion presented by the record.” 29 C.F.R. § 2700.69(a). We
thus have held that a judge must analyze and weigh all probative record evidence, make
appropriate findings, and explain the reasons for his or her decision. Mid-Continent Resources,
Inc., 16 FMSHRC 1218, 1222 (June 1994). However, the Commission has also stated that “[i]t
is within a judge’s discretion to sift through the testimony presented and to base his decision on
that which he deems to be credible, relevant and dispositive of the issues before him.” Damron
v. Reynolds Metal Co., 13 FMSHRC 535, 542 (Apr. 1991). The judge explicitly, albeit
summarily, considered the Secretary’s arguments and rejected them. He then set forth his
rationale for holding that Reading established an affirmative defense, relying on Kaczmarczyk’s
physical restrictions and the physical requirements of the jobs. 20 FMSHRC at 410-11. By
explaining in detail his analysis of other evidence that led him to find that Reading established its
affirmative defense, the judge complied with Rule 69(a).

unfavorably to the “past procedure of having Kaczmarczyk independently evaluated.” Slip op. at

16. In fact, the record reveals only two other distinguishable instances when Kaczmarczyk
    provided medical releases, and does not establish the existence of any definitive procedure
    regarding the necessity for obtaining second opinions. One incident involved Kaczmarczyk’s
    presentation of a medical release for an electrician’s job in 1992, before he engaged in protected
    activities, but it is unclear whether the medical restrictions in that release were relevant to the
    job. S. Ex. 29. A second opinion was obtained. S. Ex. 30. The other incident involved
    Kaczmarczyk’s request to perform overtime work in 1995, after he had engaged in protected
    activity, when he provided Reading with a doctor’s report stating that he could work overtime.
    S. Ex. 26. Reading then asked for a second medical opinion — to confirm that he could work
    overtime. S. Ex. 10. In contrast, when he applied for the haul truck position in 1996, the first
    doctor’s report did not state that he could perform that job — instead, it included relevant
    restrictions. Consequently, there was nothing for a second doctor to confirm. Thus,
    Kaczmarczyk’s situation in 1996 was simply not comparable to that of 1995.

    The dissent also contends that Reading’s affirmative defense was suspect because,
    

    contrary to established practice, Derrick did not consult with Rick Muntone, one of Reading’s
    accountants (Tr. 260-61), and Dave Wolfe, Reading’s safety director (Tr. 133-34), about
    Kaczmarczyk’s application for the haul truck position. Slip op. at 15-16. However, the record is
    not clear on this issue because Derrick testified that he did consult with Muntone and Wolfe, but
    Muntone testified that he was not consulted by Derrick. Tr. 150-51; 263-64. The judge made no
    finding as to whether or not Derrick did consult with co-workers regarding Kaczmarczyk’s
    application.

                                     21 FMSHRC 579
    

Page 9

   Next, we turn to the Secretary’s argument that substantial evidence does not support the

judge’s conclusion that Reading established its affirmative defense. We find that substantial
evidence supports the judge’s determination that Reading would have rejected Kaczmarczyk for
the haul truck position based solely on the nondiscriminatory reason that he could not meet the
physical requirements of the job.8

     The judge correctly found that Kaczmarczyk was subject to bending restrictions when he

was rejected for the haul truck position. The judge noted that Dr. Kuhlengel’s reports of
December 20, 1995, June 5, 1996, and September 25, 1996, stated that Kaczmarczyk was
restricted from bending. 20 FMSHRC at 410-11. He also noted that the haul truck job analysis
included bending and he accepted Derrick’s testimony that the job required it. Id. at 401, 410-11.
The judge also found that “[a] miner must bend to perform the preshift inspection and to check
fluids on the haul trucks.” Id. at 401. He gave little weight to Kaczmarczyk’s testimony that
fluid checks do not require bending, as Kaczmarczyk had not performed such checks. Id. He
also discredited Kaczmarczyk’s claim that only mechanics and not drivers performed pre-
inspections and fluid checks on the haul trucks.9 Id.

    A judge’s credibility determinations are entitled to great weight and may not be

overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized
that, because the judge “has an opportunity to hear the testimony and view the witnesses[,] he
[or she] is ordinarily in the best position to make a credibility determination.” In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting
Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), aff’d sub nom. Secretary of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). We find no basis for overturning
the judge’s refusal to grant much significance to Kaczmarczyk’s testimony that the fluid checks
did not require bending and that only mechanics performed the pre-inspections and fluid checks
on the haul trucks. We find that Kaczmarczyk’s bending restrictions and the haul truck job’s

   8
       We disagree with our dissenting colleague’s assertion (slip op. at 13) that we have

overlooked evidence of Kaczmarczyk’s past safety activity and the fact that the Commission
determined, in a different case, that Reading discriminated against Kaczmarczyk in violation of
section 105(c) because of his protected safety activity. See Secretary of Labor on behalf of
Kaczmarczyk v. Reading Anthracite Co., 17 FMSHRC 784, 785 (May 1995) (ALJ). These
matters were appropriately considered by the judge when he found a prima facie case of
discrimination by Reading (20 FMSHRC at 406-10), which Reading does not challenge on
review. The issue on review, however, is whether substantial evidence supports the judge’s
conclusion that Reading established an affirmative defense by showing that it would have acted
as it did notwithstanding Kaczmarczyk’s protected activities.
9
Derrick and Berger’s testimony and the haul truck job analysis indicate that the position
involved pre-shift inspections and fluid checks. Tr. 120-21, 138-41; S. Ex. 19.

                                     21 FMSHRC 580

Page 10

bending requirements support the judge’s finding that Reading would have rejected
Kaczmarczyk for the legitimate business reason that he could not meet the physical requirements
of the job.

     The judge’s conclusion that Reading established its affirmative defense is further

supported by the record evidence on overhead work and lifting. The judge noted that the June 5,
1996 medical report stated that Kaczmarczyk was restricted from doing overhead work and
lifting and that the haul truck job analysis indicated that the position required lifting above the
shoulder level.10 20 FMSHRC at 410-11; S. Ex. 19 at 2. Based in part on the evidence
concerning overhead work and lifting, the judge found that it was reasonable for Reading to
conclude in October 1996 that Kaczmarczyk could not perform the duties of the haul truck job.
20 FMSHRC at 410-11.

    In addition, the judge found that the June 5 and September 25, 1996 medical reports

about Kaczmarczyk listed pushing and pulling restrictions. Id. at 400, 410-11. Although he
failed to note that the haul truck job analysis included pushing and pulling requirements (see S.
Ex. 19 at 1-3), those requirements provide further support for the judge’s finding that Reading
would have rejected Kaczmarczyk for the haul truck position for the legitimate business reason
that he could not meet the physical requirements of the job.11

    In sum, we find that Kaczmarczyk’s restrictions on bending, overhead work, lifting,

pushing, and pulling provide substantial evidence to support the judge’s finding that Reading
established its affirmative defense that it would have taken the same action concerning the haul
truck position based solely on legitimate business reasons.

   10
      The haul truck job analysis rated the requirement to reach above the shoulder as 20%

of the haul truck job. S. Ex. 19 at 2. The job analysis stated that the position required lifting a 15
pound bucket of antifreeze above the shoulders but that such lifting could be avoided by using a
rope to pull the bucket onto the truck. Id. at 2, 3.
11
The Secretary argues that the judge erred in finding that Kaczmarczyk was subject to
climbing and squatting restrictions when he was rejected for the haul truck position. S. PDR at
20-22. The record evidence as a whole is not conclusive on this issue. When Kaczmarczyk was
rejected for the haul truck position in October 1996, his two latest medical reports (the June 5
and September 25, 1996 reports) did not mention climbing or squatting restrictions. S. Exs. 12,

13. However, an earlier December 20, 1995 report and two reports after his transfer (the
    November 13, 1996 and January 19, 1997 reports) contained climbing and squatting restrictions.
    S. Exs. 11, 14, 15. Even if the judge erred concerning Kaczmarczyk’s climbing and squatting
    restrictions, these errors would be harmless because the record provides other evidence, i.e.,
    Kaczmarczyk’s bending, overhead work, lifting, pushing, and pulling restrictions, that supports
    the judge’s finding that Reading would have rejected Kaczmarczyk for the haul truck position for
    the legitimate business reason that he could not meet the physical requirements of the job.

                                     21 FMSHRC 581
    

Page 11

           2.     Water Truck Driver Position

    When Reading carried out a job analysis of the water truck position in March 1997,

Kaczmarczyk’s latest medical report, dated February 10, 1997, stated that he could drive a truck
and climb up to a truck cab, but that “bending, squatting, twisting, pushing, pulling, crawling,
climbing and kneeling should be restricted to less than 15 minutes total in an 8-hour day.” S. Ex.

7. The water truck job involved greater physical demands than the haul truck job, such as more
   climbing, walking, and standing, and turning a water valve. 20 FMSHRC at 411; Tr. 273, 339
8. Thus, we find that substantial evidence supports the judge’s conclusion that, given
   Kaczmarczyk’s numerous medical restrictions and the increased physical demands of the water
   truck job, it was not unreasonable for Reading to carry out the job analysis to determine if he
   could perform the water truck job. 20 FMSHRC at 411. Moreover, as Reading notes,
   Kaczmarczyk himself requested the analysis. R. Br. at 16. We also find that substantial evidence
   supports the judge’s rejection of the Secretary’s argument that Reading discriminated against
   Kaczmarczyk by delaying the job analysis. 20 FMSHRC at 411; S. PDR at 25-27. Reading
   completed the job analysis and sent it to CRA on March 13, 1997, just a few days after
   Kaczmarczyk showed an interest in the position. 20 FMSHRC at 405. CRA then sent it to Dr.
   Kuhlengel on April 9, 1997, who approved and returned it to Reading on May 16, 1997. Id.
   Kaczmarczyk returned to work as a water truck driver on May 19, 1997. Id. Thus, the record
   evidence indicates that the two month delay in finalizing the job analysis was due to delays by
   CRA and Dr. Kuhlengel, not Reading. Accordingly, we affirm, on substantial evidence grounds,
   the judge’s decision that Reading established its affirmative defense to the discrimination claim
   regarding the delay in awarding Kaczmarczyk the water truck position.

                                   21 FMSHRC 582
   

Page 12

                                           III.

                                       Conclusion

    For the foregoing reasons, we affirm the judge’s determination that Reading did not

violate section 105(c).

                                        Mary Lu Jordan, Chairman




                                        James C. Riley, Commissioner




                                        Theodore F. Verheggen, Commissioner




                                        Robert H. Beatty, Jr., Commissioner




                                   21 FMSHRC 583

Page 13

Commissioner Marks, dissenting:

    This case turns upon the issue of whether Reading successfully established an affirmative

defense to the judge’s adjudication of a prima facie case of discrimination. Because I conclude
that the record compels the conclusion that Reading did not establish such an affirmative
defense, I dissent.

    The majority has overlooked a very significant fact in this case, that is — the record

establishes that, by the time William Kaczmarczyk tried to obtain the truck driver positions at
issue, he had a history of safety activism which was met with antagonism by the management at
the Reading mine. In 1993, Kaczmarczyk was the treasurer of Local 7226 of the United Mine
Workers of America (UMWA). Secretary of Labor on behalf of Kaczmarczyk v. Reading
Anthracite Co., 17 FMSHRC 784, 785 (May 1995) (ALJ, Amchan). He was also a mine
committeeman and the safetyman for his local union, which represented Reading’s employees.
Id. On May 24, 1995, a Commission administrative law judge, in a different case not at issue
here, determined that Reading discriminated against Kaczmarczyk in violation of section 105(c)
of the Mine Act because of his activities as a walkaround representative for an MSHA
inspection. Id. at 784, 797. The judge there permanently reinstated Kaczmarczyk (id. at 798)
and Kaczmarczyk drove haul and water trucks for Reading on an irregular basis. 20 FMSHRC at

399. Just months after he was reinstated, between July and September 1995, Kaczmarczyk made
     a number of safety complaints, to which the parties stipulated and the judge in this case found
     were protected activities under the Mine Act. Id. at 406-07. Kaczmarczyk’s extensive protected
     activity serves as an integral backdrop for his current discrimination complaint against Reading.

     This case involves Kaczmarczyk’s attempt to return to active duty work at Reading in
     

     October of 1996, after he injured his back in September of 1995. Id. at 400-01, 405 n.3. Here,
     the judge determined that the Secretary established a prima facie case of discrimination when it
     awarded the haul truck driver position to a less senior miner than Kaczmarczyk. Id. at 409-10.
     In particular, the judge found that Reading had “animus toward the protected activities” of
     Kaczmarczyk, as exhibited by the personal statements made by the General Manager of Reading,
     Frank Derrick, to Kaczmarczyk. Id. at 409; Tr. 124-25. Upon a finding of prima facie case of
     discrimination, it became incumbent upon the operator to establish an affirmative defense.
     Secretary of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
     (Apr. 1981); Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
     2786, 2799-800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v.
     Marshall, 663 F.2d 1211 (3d Cir. 1981). In Secretary of Labor on behalf of Price and Vacha v.
     Jim Walter Resources, Inc., 12 FMSHRC 1521 (Aug. 1990), the Commission explained:

            [A]n operator proves an affirmative defense pursuant to the
            Pasula-Robinette test if it shows that (1) it was also motivated by
            the miner’s unprotected activities, and (2) would have taken the
            adverse action in any event for the unprotected activities alone.
            The operator must prove that it would have disciplined the miner
     
                                     21 FMSHRC 584
     

Page 14

           anyway for the unprotected activity alone. Ordinarily, an operator
           can attempt to demonstrate this by showing, for example, past
           discipline consistent with that meted out to the alleged
           discriminatee . . . . As a corollary to these principles, it follows
           that an operator does not establish a Pasula-Robinette affirmative
           defense if a work rule or policy that the miner is alleged to have
           violated, was applied discriminatorily to the miner or in a manner
           deliberately calculated to render his compliance difficult or
           impossible. In such cases, the claimed “independent” basis for
           discipline is actually an extension of the operator’s discriminatory
           conduct. Further, pretext may be found, for example, where the
           asserted justification is weak, implausible, or out of line with the
           operator’s normal business practices.

12 FMSHRC at 1534 (citations and internal quotations omitted).

    There is one disturbing and undisputed fact in this case that sheds significant doubt on

Reading’s asserted justifications for its delay in awarding a haul truck driver position to
Kaczmarczyk. On March 10, 1997, approximately five months after Kaczmarczyk bid on the
truck job, Reading called Kaczmarczyk and asked him to report to work. 20 FMSHRC at 404.
He arrived a half hour later and was told that there was no position available. Id. Why would the
company call him into work and then provide him with no position? Neither the Judge nor the
majority answers this compelling question or even discusses its relevance. Because of this
alarming fact, I am led to the conclusion that Reading’s asserted business justification was
nothing more than a pretext for discriminating against a miner with a history of safety activism at
the mine.

    The Secretary asserts that Reading waited to resolve Kaczmarczyk’s dispute until the

position was effectively eliminated. I cannot help but agree. General Manager Derrick testified
that he was aware that the new conveyor system, that was to replace the haul truck drivers, would
be operational by March of 1997. Id.; Tr. 211. Therefore, all Reading needed to do to keep
Kaczmarczyk out of active duty was to delay the grievance procedure until after the position was
no longer available. From a review of the record, that is exactly what happened.

   On September 25, 1996, Kaczmarczyk’s doctor, Dr. Kuhlengel, sent a letter to Reading

permitting Kaczmarczyk to drive a truck with an air seat and repeating the restrictions he
recommended in an earlier letter sent on June 5, 1996.1 20 FMSHRC at 400; S. Ex. 13.

   1
     On June 5, 1996, Kaczmarczyk’s doctor, Dr. Kuhlengel evaluated Kaczmarczyk and

determined that he could return to work, but restricted him from lifting more than 10 pounds,
doing overhead work, and bending, pushing, or pulling. 20 FMSHRC at 410. A copy of the
evaluation was sent to Reading. Id.

                                    21 FMSHRC 585

Page 15

Kaczmarczyk gave the letter to Reading. 20 FMSHRC at 400. On October 8, 1996, Reading
posted an opening for a temporary haul truck driver position and Kaczmarczyk applied for it. S.
Ex. 25. On October 16, Reading awarded the position to another employee even though
Kaczmarczyk was the most senior applicant. 20 FMSHRC at 401; Tr, 16. Under the Contract,
such posted positions at Reading are awarded to the most senior and qualified employee who
applies. 20 FMSHRC at 400-01.

    After learning that he was not awarded the position, on October 16, 1996, Kaczmarczyk

had a Step 1 grievance meeting with Reading to appeal its decision not to award him the haul
truck job. Jt. Ex. 1; R. Ex. 3. Step 2 and Step 3 grievance meetings were held on November 6
and November 14, at which Kaczmarczyk claimed that he was permitted to drive a truck as
authorized by Dr. Kuhlengel. 20 FMSHRC at 402. At the November 14 meeting, Kaczmarczyk
and Jay Berger, a UMWA representative, asked Reading to prepare a job analysis of the haul
truck position. Id. at 402-03. No response was forthcoming from the company and, on
December 4, union representative Berger sent a letter to Derrick, informing him that
Kaczmarczyk had a release from his doctor and asking for the reasons why he had been denied
the truck driver position. S. Ex. 5. On December 27, six weeks after the Step 3 meeting, Derrick
sent a letter in reply to Berger stating that Kaczmarczyk’s medical restrictions were the reason for
denying him the position. S. Ex. 21. At the Step 4 grievance meeting, on February 11, 1997,
Berger gave Derrick a copy of Dr. Kuhlengel’s letter that clarified that he could perform other
duties associated with truck driving, such as checking truck fluid levels and climbing several
steps into the cab. 20 FMSHRC at 403; S. Ex. 7. A job analysis was finally ordered and it was
confirmed on March 7 that Kaczmarczyk’s physical restrictions did not prevent him from
working as a haul truck driver. 20 FMSHRC at 404.

    The problem is that by the time Kaczmarczyk was awarded the position, there was no

position to be had and the operator forced Kaczmarczyk to start the process all over again
resulting in additional delay. Incredibly the judge misses the obvious point — that Reading’s
delay and offer of a non-existent job was motivated by its discriminatory intention to keep
Kaczmarczyk, who Derrick called the “downfall of Reading,” (id. at 409), out of a job. When
enacting the Mine Act, Congress explained that the anti-discrimination provision was intended to
protect miners “against not only the common forms of discrimination, such as discharge,
suspension, demotion, reduction in benefits . . . , but also against the more subtle forms of
interference.” S. Rep. No. 95-181, at 36 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 624 (“Legis. Hist.”) (emphasis added). Extending a miner an offer of a
non-existent job qualifies as the type of subtle discrimination the Mine Act was intended to
reach!

   In addition to this unexplained empty job offer on March 10, Reading’s affirmative

defense is further undercut by the evidence that Kaczmarczyk received disparate treatment when
he was denied the truck driver position in October of 1996. Although the judge determined that
there was “no evidence that Reading was obligated to contact . . . another physician,” (20

                                    21 FMSHRC 586

Page 16

FMSHRC at 402), the judge seems to have overlooked that, when Kaczmarczyk attempted to re
enter the work force in the past and presented a doctor’s release that also contained restrictions,
Reading sent him for an independent evaluation from another physician. S. Exs. 26, 27, 29 & 30.
However, in October 1996, the company did not follow its past procedure of having
Kaczmarczyk independently evaluated.2 Further disparate treatment was shown in the way
Reading handled the decision to deny Kaczmarczyk the truck driver position. General Manager
Derrick testified that normally he would confer with Rick Muntone, who worked with worker’s
compensation, and safety director Dave Wolfe when considering the bid of an employee with
medical restrictions. Tr. 133-34. However, the record revealed that no such conference occurred
when it came to Kaczmarczyk’s bid for truck driver. Tr. 150-51, 263-64. As the Commission
has recognized, pretext may be found, for example where the asserted justification is weak,
implausible, or out of line with the operator’s normal business practices.3 Price and Vacha, 12
FMSHRC at 1534. Given that Kaczmarczyk’s rejection was out of line with normal business
practice, I am further led to the conclusion that Reading’s asserted business justifications were
not the sole motivating factor in its decision not to award Kaczmarczyk the truck driver position.4

      Further, the medical restrictions on which the judge relied are also suspect. I agree with

Secretary that the judge erred in finding that Kaczmarczyk was subject to climbing and squatting
restrictions when he was rejected for the haul truck position on October 16. S. PDR at 20-22.
The judge incorrectly stated that Dr. Kuhlengel’s September 25, 1996 report contained “the same
restrictions as . . . his report of June 5, 1996, [including] . . . no bending, climbing, or squatting
. . . .” 20 FMSHRC at 411. The June 5 and September 25 reports, which were the two most

   2
       The majority unsuccessfully attempts to distinguish the company’s practice of seeking a

second opinion in two prior instances on the grounds that Kaczmarczyk had received releases in
the past. Slip op. at 7-8 n.7. The majority overlooks that Dr. Kuhlengel’s September 25, 1996
letter stated: “he is able to drive a truck with an air seat.” S. Ex. 13. Thus, Kaczmarczyk had a
release from his doctor to drive the haul truck.
3
Even though this case turns on whether Reading proved a successful affirmative
defense, the judge failed to even meaningfully address the evidence that Reading’s rejection of
Kaczmarczyk’s bid was out of line with its normal business procedures. The majority also
recognizes this. Slip op. at 8 n.7. Indeed, the judge’s opinion is so seriously deficient in its
evaluation of the affirmative defense that it should not be permitted to stand. See Mid-Continent
Resources, Inc., 16 FMSHRC 1218, 1222-23 (June 1994) (vacating the judge’s conclusion when
he failed to make appropriate findings and explain the reasons for his decision).
4
In addition, the judge failed to consider other evidence of disparate treatment, which is
crucial in evaluating an affirmative defense. The Secretary attempted to put on evidence that
Reading performed a job analysis for a truck driver position for a similarly situated Reading
employee, at the same time that Kaczmarczyk was trying to be truck driver. However, the judge
incorrectly did not see any relevance to the exhibit and refused its admittance. Tr. 191-92.

                                     21 FMSHRC 587

Page 17

recent medical reports at the time of Kaczmarczyk’s rejection for the position, contained no
restrictions regarding climbing and squatting. S. Ex. 12, 13. That leaves the restrictions — no
bending, no overhead work and no lifting of over 10 pounds — upon which the judge relied.
However, as these were minor aspects of the jobs, the restrictions should not have justified
outright refusal of the haul truck position. Instead, if Reading had doubts about Kaczmarczyk’s
capabilities to perform the job, the company should have ordered an immediate job analysis or
had Kaczmarczyk independently evaluated as it had done in the past.

     As to bending in order to perform pre-shift evaluations, the judge acknowledged “as a

result of a grievance, mechanics still service and start the haul trucks.” 20 FMSHRC at 401.
What the judge failed to realize from this fact is that, even if drivers sometimes checked the
fluids, as he found, it was a minor portion of the job. Derrick admitted that mechanics performed
the truck servicing jobs, but added “but that doesn’t mean that the workers can’t do it.” Tr. 460
61; see also Tr. 120 (Berger testifying that bending to check fluids is an insignificant part of the
job). Although the drivers may have sometimes performed the fluid checks, it is hard to imagine
that the company would have outright denied Kaczmarczyk the truck driving job because of his
bending restriction when, practically speaking, it was an insignificant part of the job. As to
lifting and overhead work, the only item that required above the shoulder work was lifting a
bucket of anti-freeze once daily. S. Ex. 19 at 2. Dr. Kuhlengel’s September 1996 release letter
permitted Kaczmarczyk to lift 10 pounds. Thus, as Derrick conceded, Kaczmarczyk could have
managed lifting 20 pounds of anti-freeze by simply making two trips of the bucket. Tr. 145-46.
The job analysis also stated that above shoulder lifting was not necessary and could be avoided
by using a rope to pull the bucket onto the truck. S. Ex. 19 at 2, 3. Because bending and lifting
were such small parts of the job and Kaczmarczyk was not subject to climbing and squatting
restrictions,5 I am led to the conclusion again that Reading’s asserted reliance on Kaczmarczyk’s
medical restrictions was a mere pretext to keep him from returning to work, and was not the sole
motivating factor in its denial of the haul truck position.

    Given the unexplained March 10 “job” offer, the evidence of disparate treatment, and the

weakness of the actual medical restrictions, I am unable to conclude that substantial evidence
supports the judge’s finding that Reading established an affirmative defense when it denied
Kaczmarczyk the haul truck job. Instead, the record compels the conclusion that Reading’s
asserted justifications were out of line with their business practices and nothing more than a
pretext. For this reason, I would reverse the judge’s dismissal of the discrimination violation
with respect to the haul truck position.

   5
      In affirming the judge’s decision that Reading had legitimate business reasons for

denying Kaczmarczyk the haul truck driver position, the majority also relies on pushing and
pulling restrictions that were listed in Dr. Kuhlengel’s 1996 letters. Slip op. at 10. However, the
judge never found that pushing or pulling were required components of the haul truck job. 20
FMSHRC at 410. Therefore, those two restrictions are irrelevant to the inquiry of whether
Reading had a legitimate basis for denying Kaczmarczyk the truck driver job.

                                     21 FMSHRC 588

Page 18

     Reading’s discriminatory treatment of Kaczmarczyk carried over to the water truck

position. On March 7, 1997, Reading received the completed job analysis from Dr. Kuhlengel in
which he stated that Kaczmarczyk’s physical restrictions did not prevent him from working as a
haul truck driver. 20 FMSHRC at 404; S. Ex. 19. It was undisputed that the water truck was
only a modified haul truck. 20 FMSHRC at 411; Tr. 188, 271 (testimony of Derrick and
Muntone). Furthermore, the reasons that Reading offered, and the judge relied on, to justify a
further delay and a second job analysis do not withstand scrutiny when one examines the March
7 job analysis that Reading had in hand. The judge found that operation of the water truck, in
contrast to the haul truck, “required climbing eight times a shift, standing a total of [one] hour,
and walking a total of an hour.” 20 FMSHRC at 411. The March 7 job analysis permitted these
activities. S. Ex. 19. The March 7 job analysis provided for climbing 20 percent of the time and
standing and walking up to half an hour at any one time without providing a total time restriction
in a day. Id. Dr. Kuhlengel approved Kaczmarczyk for all of these activities. Id. Furthermore,
Kaczmarczyk was not restricted from walking and standing in any of the doctor’s letters or
reports given to Reading in 1996 and 1997. S. Exs. 7, 12, 13, 14, 15. In addition, Dr. Kuhlengel
had specifically explained that climbing the steps into a truck cab was permissible in his
February 10, 1997 letter. S. Ex. 7.6 Therefore, substantial evidence does not support the judge’s
finding that it was reasonable for Derrick to conclude that Kaczmarczyk’s restrictions would
have prevented him from driving the water truck.

     Further, I reject the majority’s reasoning that Kaczmarczyk’s request of the job analysis

for the water truck job somehow legitimizes the company’s decision to order a second job
analysis. Slip op. at 11. On March 10, Reading pulled the rug from under Kaczmarczyk’s feet
by ordering him back to work and, on the very same day, informing him that no positions were
available. As the Secretary asserts, Kaczmarczyk had no choice but to ask for a job analysis for
any and all available positions, as that seemed the only way that Reading was ever going to
consider him for a job. S. Reply Br. at 3. Given the similarities of the two truck driver positions,
I conclude that Reading should have arranged for Kaczmarczyk to be a water truck driver in
March, not in May after a second job analysis.

    Indeed, the record can only support the conclusion that ordering the second job analysis

on March 12, when Reading already had a March 7 analysis for basically the same position, was
a pretext to further delay Kaczmarczyk’s return to active duty. Jt. Ex. 1. I therefore conclude
that Reading failed to establish an affirmative defense that it was solely motivated by its asserted
medical reasons when it delayed awarding Kaczmarczyk the water truck position.
Congress, when enacting the Mine Act, was “cognizant that if miners are to be

   6
      In concluding that the water truck job involved allegedly greater physical demands, the

majority relies on the act of turning a water valve. Slip op. at 11. The judge however ruled that,
with the exception of climbing, standing and walking, “[a]ll other physical demands of these
job[s] were the same.” 20 FMSHRC at 411. Moreover, the March 7 job analysis covered simple
grasping to the right and left, which included the act of turning the water valve. S. Exs. 19, 20.
In that analysis, Dr. Kuhlengel approved Kaczmarczyk’s continuous participation in activities
that required grasping to the right and left. S. Ex. 19.

                                     21 FMSHRC 589

Page 19

encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
95-181, at 35, Legis. Hist. at 623. Kaczmarczyk had a history of upholding safety rights under
the Mine Act at Reading’s mine. I conclude that Reading would not have refused Kaczmarczyk
the haul truck job, stonewalled him through the grievance procedure, offered him a non-existent
job and, to add insult to injury, further delayed in awarding him a water truck position, if not for
Kaczmarczyk’s safety history and protected activities.7

  Accordingly, I would reverse the judge’s dismissal of the discrimination complaint, and

remand solely for consideration of damages and penalty.

                                          ____________________________________
                                          Marc Lincoln Marks, Commissioner




   7
      Unlike the majority’s assertion (slip op. at 9 n.8), the affirmative defense issue is very

much tied to the extensiveness of Kaczmarczyk’s protected activities. Much of the evidence
pertinent to the affirmative defense, e.g., the non-existent job offer and Kaczmarczyk’s disparate
treatment, was simply not evaluated by the judge. After analyzing this overlooked evidence, one
cannot help but conclude that Kaczmarczyk’s treatment was inextricably linked to his significant
protected activities, and that Reading failed to show that it would have taken the adverse action
in any event for unprotected reasons alone.

                                     21 FMSHRC 590

Page 20

Distribution

Stephen D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Martin Cerullo, Esq.
Cerullo, Datte & Wallbillich, PC
450 West Market St.
P.O. Box 450
Pottsville, PA 17901

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

                               21 FMSHRC 591