Secretary of Labor on behalf of Fred McKinsey v. Pretty Good Sand Company, Inc.

Plain-English summary

Fred McKinsey reported mobile-equipment and highwall safety concerns to the owner of Pretty Good Sand Company and later contacted MSHA, prompting an inspection of the North Carolina sand pit. He said that management then began criticizing and harassing him, demoted him from supervisor, reduced his hours, and terminated him, while the company attributed the discharge to poor work and an unprofessional attitude. Judge John Kent Lewis found nonfrivolous evidence that the owner knew or suspected McKinsey made the complaints, showed hostility toward that activity, and took adverse actions within weeks. The judge declined to resolve conflicting testimony and credibility issues at the preliminary stage. He ordered McKinsey immediately reinstated as a maintenance mechanic with the same pay, hours, and benefits he had when discharged.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 815(c)(2); 29 C.F.R. § 2700.45
• Outcome: Pretty Good Sand was ordered to immediately reinstate McKinsey as a maintenance mechanic on his prior terms.
• Key point: Evidence of management suspicion, hostility, and close timing can support temporary reinstatement even when the operator disputes the miner's work performance and credibility.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

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

May 6, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

on
behalf of FRED MCKINSEY,

Complainant

v.

PRETTY
GOOD SAND COMPANY, INC.,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. SE 2014-223-DM

MSHA
Case No.: SE MD 14-12 TR

Mine:
Great Pit

Mine
ID: 31-02014

DECISION
AND ORDER

REINSTATING
FRED MCKINSEY

Appearances:               Uche
N. Egemonye, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta,
GA, Representing the Secretary of Labor 

Roger Sauerborn, President, Pretty Good
Sand Company, Inc., Battleboro, NC, Representing Respondent

Before:                        Judge Lewis                           

On March 26,
2014, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act
of 1977 (“Act”), 30 U.S.C. §801, et.
seq., and 29 C.F.R. §2700.45, the
Secretary of Labor (“Secretary”) filed an
Application for Temporary Reinstatement of miner Fred McKinsey (“McKinsey” or
“Complainant”) to his former position with Pretty Good Sand Company, Inc., (“Pretty Good Sand” or “Respondent”) at the Great
Pit Mine pending final hearing and disposition of the case.

That application
followed a Discrimination Complaint filed by McKinsey on February 18, 2014,
that alleged, in effect, that his termination was motivated by his protected
activity. The Secretary represents that this Complaint was not frivolously
brought and requests an Order directing Respondent to reinstate McKinsey to his
former position as a maintenance mechanic.

Respondent requested
a hearing regarding this application on April 10, 2014 via conference call. A
hearing was held in Rocky Mount, NC on April 30, 2014.[1]
The Secretary presented the testimony of the complainant. Respondent had the
opportunity to cross-examine the Secretary’s witnesses and present testimony and
documentary evidence in support of its position. 29 C.F.R. §2700.45(d).

For the reasons
set forth below, I grant the application and order the temporary reinstatement of McKinsey.

Discussion
of Relevant Law

Section
105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to
encourage miners “to play an active part in the enforcement of the [Mine Act]”
recognizing that, “if miners are to be 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. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 623 (1978).

Congress created
the temporary reinstatement as “an essential protection for complaining
miners who may not be in the financial position to suffer even a short period
of unemployment or reduced income pending the resolution of the discrimination
complaint.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.
2nd Sess., Legislative History of the Federal Mine Safety and Health Act of
1977, at 624-25 (1978).

Temporary Reinstatement is a
preliminary proceeding, and narrow in scope. As such, neither the judge nor the
Commission is to resolve conflicts in testimony at this stage of the case. Sec’y of Labor on
behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The
substantial evidence standard applies.[2] Sec’y of Labor on behalf
of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A
temporary reinstatement hearing is held for the purpose of determining “whether the
evidence mustered by the miners to date established that their complaints are non-frivolous, not whether there is
sufficient evidence of discrimination to justify permanent reinstatement.” Jim Walter
Resources, 920 F.2d 738, 744 (11th Cir. 1990).

In
adopting section 105(c), Congress indicated that a complaint is not frivolously
brought if it “appears to have merit.” S.
Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624-25
(1978). In addition to Congress’ “appears
to have merit” standard, the Commission and the courts have also equated “not
frivolously brought” to “reasonable cause to believe” and “not
insubstantial.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc.,
9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9
(11th Cir. 1990). “Courts have recognized that establishing ‘reasonable cause to
believe’ that a violation of the statute has occurred is a ‘relatively
insubstantial’ burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV,
LLC, 2012 WL 4026641, *3 (Aug. 2012) citing Schaub v. West Michigan
Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001).

In
order to establish a prima facie case of discrimination under section
105(c) of the Act, a complaining miner must establish (1) that he engaged in
protected activity and (2) that the adverse action complained of was motivated
in any part by that activity. Sec’y of
Labor on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786 (Oct. 1980), rev’d on
other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3rd Cir. 1981); Sec’y of
Labor on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803 (April 1981).

However,
in the instant matter, the Secretary and McKinsey need not prove a prima
facie case of discrimination with all of the elements required at the
higher evidentiary standard needed for a decision on the merits. Rather, the
same analytical framework is followed within the “reasonable cause to believe”
standard. Thus, there must be “substantial evidence” of both the applicant’s
protected activity and a nexus between the protected activity and the alleged
discrimination. To establish the nexus, the Commission has identified these
indications 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 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). The Commission has further considered the disparate treatment of
the miner in analyzing the nexus requirement. Secretary 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
should be noted that at pre-trial conference and at the hearing, this court
gave repeated instructions to Respondent regarding the narrow scope of a
temporary reinstatement proceeding.[3] Respondent
could not understand or was unwilling to accept that the Secretary and McKinsey
were not required at the within temporary reinstatement proceeding to
prove a prima facie case of discrimination with all for the elements
required at the higher evidentiary standard.

Despite
repeated sustained objections, Respondent mistakenly attempted to transmute the
reinstatement hearing into full-scale credibility[4]
and discovery inquiries that were far beyond the scope of a temporary
reinstatement hearing.

Stipulations

The parties stipulated to the following
legal and factual propositions:

1.                           
Pretty
Good Sand Company, Inc. is and was at all relevant times through this
proceeding the operator of the Great Pit Mine, Mine ID number 31-02014.

2.                           
Great
Pit is a mine. The term mine is defined in Section 3(h) of the Mine Act, 30
U.S.C. Section 802(h).

3.                           
At
all times relevant to this proceeding, products of Great Pit Mine entered
commerce, are the operations of products thereof affecting commerce, within the
means and scope of Section 4 of the Mine Act, 30 U.S.C. Section 803.

4.                           
Pretty
Good Sand Company is an operator, as the term operator is defined in Section
3(d) of the Mine Act, 30 U.S.C. Section 802(d).

5.                           
Fred
McKinsey was previously employed by Pretty Good Sand Company. Fred McKinsey is
a miner within the meaning of Section 3(g). Mine Act, 30 U.S.C. Section 302(g).

6.                           
Fred
McKinsey was terminated from Pretty Good Sand Company on January 10, 2014.[5]

7.                           
Pretty
Good Sand Company is subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission. The presiding administrative law judge has authority
to hear this case and issue a decision regarding this case, pursuant to Section
105 of the Act, 30 U.S.C. Section 815, as amended.

(Transcript
at 6-8).[6]

Contentions
of the Parties

On January 20,
2014, McKinsey executed a Summary of Discriminatory Action. It was filed with
his Discrimination Complaint on February 18, 2014. In this statement he alleged
the following[7]:

My employment with Pretty Good Sand
Company began in July, 2013. During my interview [wi]th Roger Sauerborn, the
owner of the company, I disclosed that I have [Asp]ergers Syndrome and
explained the ways in which I am different from other people. [A] short time
after hire, I was promoted to a supervisory position, where I remained [unt]il
late December 2013. Pretty Good Sand Company (PGSC) was reported to MSHA for
[vio]lations, resulting in an MSHA inspection of the facility on 11/26/13. Immediately
[aft]erwards, I was treated differently by Roger. He intentionally created
difficult interactions [bet]ween himself and I, using strategies that would
exacerbate my Aspergers tendencies, [res]ulting in escalating confrontations. On
12/8/2013, I received an email from Roger [det]ailing specific tasks he felt I
had handled incorrectly and discussing the MSHA [ins]pection. After reading
that e-mail, I believed that he felt I was responsible for [rep]orting PGSC to
MSHA. The workplace harassment and associated tension continued [to] build for
the duration of the remainder of my employment with PGSC. I [rec]eived a mailed
letter of reprimand on 12/20/2013, a hand written note attached to [a] time
card a few days later, and a second reproach email on 12/30/2013. I [wa]s
verbally demoted from my supervisory position without any explanation. My work
[h]ours were cut by sending me home early multiple times, as well as reducing [m]y
scheduled hours to work. On the morning of 01/13/14, I received a text
[m]essage from Roger stating that I had been fired. After I requested to be
[in]formed of the reason(s) for dismissal, Roger sent an email to me on the
same [d]ay, explaining his reasons for termination. I believe Roger
deliberately [fo]stered a trying work environment for me in an attempt to push
me to resign, [a]nd when his repeated efforts were unsuccessful, he dismissed
me.

Application for Temporary
Reinstatement at
Exhibit B, p. 2.

The Secretary
also submitted the March 25, 2014 Declaration of Michael Larue, a Special
Investigator employed by the Mine Safety and Health Administration with the
Application. Larue wrote that he investigated McKinsey’s discrimination claim
against Respondent. Larue laid out the facts that he determined based on his
investigation. Id. at Exhibit A, p. 1-3. He concluded:

3.        Based
upon the information so far available as the result of the special
investigation being conducted in these matters, I have concluded that Fred
McKinsey’s Claim that he was terminated from his employment with Respondent as
a result of his lodging a safety hazard complaint with MSHA and participating
in MSHA’s investigation was not frivolously brought.

Id. at Exhibit A,
p. 3. The Secretary cited this declaration as a basis for the formal request
for temporary reinstatement. Id. at 3.

Respondent
disputes the Secretary’s claim that McKinsey was terminated because he noted
safety concerns in check sheets or because he was suspected of making safety
complaints to MSHA. Instead it claims that he was terminated for failure to
conduct work assignments properly and for unprofessional attitude at work.

Summary
of Testimony

Fred McKinsey[8] was hired at
the subject mine as an hourly employee by Roger Sauerborn[9] in July 2013 at $15.00 an
hour and generally worked 45 to 50 hours per week. (Tr. 15, 65). Respondent’s
mine was a sand pit that produced sand for sale to the public. (Tr. 14-15). McKinsey’s
job included maintenance, general labor, operating an excavator, driving a dump
truck, and operating a pull behind a scrapper pan. (Tr. 15).

On August 23,
2013, Sauerborn promoted McKinsey to supervisor and gave him a raise to $17.75
an hour. (Tr. 15-16, 65). McKinsey was not sure if the foreman preceding him
was fired for unsafe conduct. (Tr. 29-30). As a supervisor, McKinsey continued
to do all of his previous duties and work the same hours, but was also
responsible for tasking three other employees (Alton “Low” Moses, Matthew
Stanley, and, later, Joshua Lane) and ensuring safety. (Tr. 16-17). To do so,
he reported safety issues to Sauerborn as they arose. (Tr. 16).

McKinsey took several
safety precautions, including completing pre-work checks on equipment. (Tr.
18). Whoever operated equipment for a day would check out the equipment, fill
out a pre-shift sheet, carry it to the office, place it in the appropriate
folder, and discard the previous day’s pre-shift sheet. (Tr. 52). These forms
were designed to identify and maintain records of malfunctions and safety
issues. (Tr. 19). As foreman, McKinsey looked at these sheets. (Tr. 63). At
hearing, McKinsey reviewed several pre-shift examination forms (CX-9); he had
completed three of the pages and someone else had completed the fourth. (Tr.
19-20). McKinsey did not recall filling out the form dated November 2, 2013 but
he completed them as a part of his daily tasks. (Tr. 19-20). He was not
positive that he worked that day. (Tr. 30).

As Supervisor,
McKinsey reported several safety issues to Sauerborn. (CX-9)(Tr. 17-18). If
McKinsey noticed a problem, he would report the issue to Sauerborn, they would
discuss it, and Sauerborn would make a final decision. (Tr. 52, 56, 63). McKinsey
would follow Sauerborn’s instructions on whether to repair something or not. (Tr.
56). McKinsey would make minor repairs, but anything major had to be discussed
with Sauerborn. (Tr. 63). If an issue was not immediately resolved, the machine
was not moved to the “do not operate” line. (Tr. 52).

The safety
issues raised by McKinsey included the fact that Respondent’s Mack Truck needed
new brakes and that it had suspension and bed issues. (Tr. 17). McKinsey also
noted that the D-250B Caterpillar haul truck had a center pivot issue that
needed to be repaired. (Tr. 17). He reported that highwalls with roads above
them needed to be supported. (Tr. 17). In one pre-work sheet, McKinsey noted
that the articulation joint of the baby loader was worn out. (Tr. 46-47). McKinsey
told Sauerborn that this condition had to be repaired elsewhere because
Respondent had neither the facilities nor the tools to do so on site. (Tr. 48).
When McKinsey reported these conditions, Sauerborn would deflect the concerns
and raise other jobs that needed to be completed. (Tr. 18). Sauerborn did not
address the safety issues McKinsey raised. (Tr. 18).

On or around
November 23, 2013, McKinsey filed a complaint with MSHA. (Tr. 21). He filed
this complaint because he learned that as a supervisor at the mine he was
responsible if anyone was hurt, even if a safety inspection was performed. (Tr.
21). He was the responsible party and did not want anyone to get hurt while he
was working. (Tr. 21).

The next day,
November 24, 2013, MSHA inspected the Great Pit mine as a result of this complaint.
(Tr. 21, 65). Two citations were issued that day. (Tr. 66). One citation was
for a failure to record new miner training. (Tr. 66). However, while preparing
for hearing, Sauerborn found the record of the new-miner training; it had been
misfiled. (Tr. 66). Sauerborn testified that the issues cited were not the ones
complained of and that he hoped that the inspection would allow McKinsey to see
that his safety complaints were unfounded so that they could then move forward
as a company. (Tr. 70).

Sauerborn
conceded that he told the inspector that the complaint could only come from one
of the employees. (Tr. 65-66).  In fact, he testified “what I said was it had
to be someone from my company, and it's not a great big company, okay. So, you
know… I'm not that stupid.” (Tr. 66). However, at hearing he stated that he did
not know who called MSHA. (Tr. 67). On the record, the ALJ accepted that
Sauerborn’s other witnesses would have testified that he was uncertain as to
who actually made the stated complaints. (Tr. 76). Regardless, the number of
complaints convinced him that it had to be someone from the company. (Tr.
66-67). On the day of the inspection, McKinsey stopped Sauerborn and said that
maybe one of his (McKinsey’s) girlfriends called or Lane’s parents called. (Tr.
67).

McKinsey was not
sure if the citations issued during that inspection were written near the berm
area. (Tr. 53). He was not present when the citations were issued; he was
working with the other employees elsewhere. (Tr. 53). When Sauerborn was nearby
on the inspection, McKinsey was working on other tasks and was not paying
attention. (Tr. 53-54).

Before this
inspection, McKinsey had never received any verbal reprimands or discipline.[10] (Tr. 21,
29-30). After the MSHA inspection, the environment at work changed. (Tr. 21). Specifically,
Sauerborn would belittle McKinsey and give him a hard time. (Tr. 22). Sauerborn
would give McKinsey conflicting instructions that were impossible to follow. (Tr.
22). He also sent McKinsey several e-mails stating, incorrectly, that McKinsey
had improperly repaired equipment or “messed up” a task. (Tr. 22-23).

On December 12,
2013 McKinsey was demoted, although his pay remained the same. (Tr. 24-25, 40,
49-50, 69-70). Sauerborn said Lane would become supervisor. (Tr. 40). When
McKinsey asked why he was demoted, Sauerborn referred to several disciplinary
emails he had sent previously. (Tr. 25, 50). McKinsey did not say anything
except that he would quit rather than take a pay cut. (Tr. 40-41, 69-70). The
harassment began before this demotion and continued afterwards. (Tr. 50).

According to
McKinsey, on December 20, Sauerborn approached a vehicle where McKinsey and
Lane were sitting. (Tr. 41). McKinsey rolled down the window and Sauerborn
started to harass him, though he could not recall what was said. (Tr. 41-42). McKinsey’s
nerves began to bother him and he began to shake. (Tr. 41). McKinsey stepped
out of the car in hopes that Sauerborn would see how badly he was affected and
give him space. (Tr. 41). Sauerborn said that he was uncomfortable and McKinsey
needed to clock out for an hour. (Tr. 41).

According to
Sauerborn, the events of that day proceeded as follows: Sauerborn saw Lane and
McKinsey in the Suburban. (Tr. 71). After he said “hello,” McKinsey jumped out
of the vehicle and yelled that Sauerborn was discriminating against him. (Tr.
71-72). McKinsey approached and Sauerborn raised his hands because his personal
space was invaded. (Tr. 72). Sauerborn told McKinsey that he needed to clock
out for an hour so that he could calm down before the Christmas party. (Tr.
72). McKinsey went to the office to clock out. (Tr. 72). While there McKinsey,
who was within earshot of a truck driver, threatened to kill Sauerborn.[11]
(Tr. 72).

Finally, on
January 13, 2014 McKinsey was informed via text message from Sauerborn that he
was fired. (Tr. 25). When McKinsey asked why, Sauerborn said that the issue was
covered in an email. (Tr. 25). McKinsey then contacted MSHA because he believed
he was fired for calling and reporting violations. (Tr. 25). McKinsey believed
that the email marked CX-5 showed that Sauerborn believed that he was the
person who called MSHA.[12]
(Tr. 26-27).  McKinsey was still making $17.75 an hour at that time.[13]
(Tr. 67-68).

Findings and
conclusions

Protected
Activity and Adverse Employment Action

The Mine Act
contains security measures for miners engaged in protected activity. Specifically,
§105(c)(1) states, in relevant part:

No person shall discharge or in any
manner discriminate againstYor otherwise interfere with the exercise of the
statutory rights of any minerYin any coal or other mine subject to this chapter
because such minerYhas filed or
made a complaint under or related to this chapter, including a complaint
notifying the operator or the operator's agentYof an alleged danger or safety or
health violation in a coal or other mine.

30 USC § 815(c)(1). As discussed supra,
to support a temporary reinstatement there must be protected activity with a
connection, or nexus, to an adverse employment action. The initial issue is
whether McKinsey engaged in activity that triggered those protections.

Under the Act, protected
activity includes filing or making a complaint of an alleged danger, or safety
or health violation, instituting any proceeding under the Act, testifying in
any such proceeding, or exercising any statutory right afforded by the Act. See
Sec’y of Labor on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3rd Cir. 1981). In this matter, McKinsey testified that he made safety complaints
both to his employer, Sauerborn, and MSHA. (Tr. 17-18, 21). Those complaints
dealt with the unsafe condition of mobile equipment and support for high walls.
(Tr. 17-18, 46-48). These complaints resulted in an MSHA inspection of the Mine
and the discovery of violations. (Tr. 21, 65-66). There is no question the
sending a complaint to MSHA to discuss a safety concern is protected activity. In
fact, this is precisely the interaction between miner and MSHA that §105(c) was
drafted to protect. Therefore, McKinsey’s claim that
he was engaged in protected activity is not frivolous.

The next issue
is whether McKinsey suffered an adverse action. According to the Act and well-settled
Commission precedent, suffering a discharge or a demotion is an adverse
employment action. 30 USC § 815(c)(1); see also Moses
v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff'd, 770
F.2d 168 (6th Cir. 1985).
It is uncontested that on December 12, 2013, McKinsey was demoted from
supervisor to maintenance mechanic. (Tr. 24-25, 40, 49-50, 69-70). Further, there
is no question that a month later, on January 13, 2014, McKinsey was terminated
from his position as maintenance mechanic. (Tr. 25). Therefore,
McKinsey’s claim that he suffered an adverse employment action is not frivolous.

Nexus between
the protected activity and the alleged discrimination

Having
concluded that McKinsey engaged in protected activity, the examination now
turns to whether that activity has a connection, or nexus, to the subsequent
adverse action, namely the January 13, 2013 termination. The Commission
recognizes that direct proof of actual knowledge is often not available and
that the nexus between protected activity and the alleged discrimination must
often be drawn by inference from circumstantial evidence rather than from
direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. The Commission
has identified several circumstantial indicia of discriminatory intent,
including: (1) hostility or animus toward the protected activity; (2) knowledge
of the protected activity; (3) coincidence in time between the protected
activity and the adverse action; and (4) disparate treatment of the
complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC
at 1089; see also, Phelps Dodge Corp., 3 FMSHRC at 2510.

Knowledge
of the protected activity

According the
Commission, “the Secretary need not prove that the operator has knowledge of
the complainant’s activity in a temporary reinstatement proceeding, only that
there is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31
FMSHRC at 1090 citing Chicopee Coal Co., 21 FMSHRC at 719. In
fact, evidence is sufficient to support a finding of knowledge if an operator
erroneously suspects a miner made safety complaints, even if no complaint was
made. See Moses v. Whitley, supra. McKinsey testified that he
made safety complaints to Respondent’s owner, Sauerborn. (Tr. 17-18). Specifically,
he discussed problems with equipment at the mine and inadequate support for a
wall. (Tr. 17-18, 46-48). If McKinsey raised safety complaints directly to Sauerborn,
clearly the owner would have knowledge. Further, McKinsey testified that when
Sauerborn failed to take corrective action, he contacted MSHA. (Tr. 21). Saueborn
conceded that during the resultant inspection, he stated that the complaints
could have only come from one of his employees. (Tr. 65-67). On December 7,
2013 Sauerborn sent a letter (CX-5) to McKinsey that implied that he suspected that
McKinsey was the person who contacted MSHA. (Tr. 26-27). Finally, Sauerborn
testified at hearing that he hoped the inspection would show McKinsey that his
complaints were unfounded, showing that he was aware that McKinsey’s complaints
were the ones that prompted the inspection. (Tr. 70). Therefore, there is some
evidence to suggest that Sauerborn was aware or at least suspected the McKinsey
had engaged in protected activity. Thus, I find that Complainant and the
Secretary have raised a non-frivolous issue as to whether Respondent had
knowledge of the protected activity when the decision was made to fire McKinsey.

Coincidence
in time between the protected activity and the adverse action

The Commission
has accepted substantial gaps between the last protected activity and adverse
employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090
(three weeks) and Sec’y of Labor on behalf of Hyles v. All
American Asphalt,
21 FMSHRC 34 (Jan. 1999) (a 16-month gap existed between the miners’ contact with
MSHA and the operator’s failure to
recall miners from a lay-off; however, only one month separated MSHA’s issuance of a
penalty resulting from the miners’ notification of a violation and that
recall failure). The Commission has 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.’” All American Asphalt, 21 FMSHRC at 47 (quoting Hicks v. Cobra
Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991).

In the present
matter, the time between the McKinsey’s final protected activity (the call to
MSHA) and the termination was approximately 51 days. McKinsey testified that he
called MSHA on November 23, 2013 and he was terminated on January 13, 2014. (Tr.
21, 25). However, even before the termination, McKinsey alleged other adverse
actions. For example, on December 12, 2013, just 19 days after the call to
MSHA, McKinsey was demoted. (Tr. 21, 24-25, 40, 49-50, 69-70). Further,
McKinsey reported being harassed and belittled from the time of the inspection
until his termination, with one instance on December 20, 2013 discussed at
length at hearing. (Tr. 21-23, 41, 50, 71-72). These time frames easily meet
the Commission’s requirements. Thus, I find that the time span between the
protected activities and the adverse action is sufficient to establish a nexus.

Hostility
or animus towards the protected activity

The Commission has held,
“[h]ostility 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.” Secretary of Labor on
behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508, 2511 (Nov.
1981) (citations omitted).

McKinsey
testified that before he contacted MSHA, he had never received a verbal or
written warning regarding his conduct at work. (Tr. 21, 29-30). Following the
protected activity, McKinsey received several disciplinary notes. (Tr. 21-23). One
of those warnings, a letter dated December 7, 2013 (CX-5) specifically
addressed the call to MSHA. (Tr. 26-27). The fact that a discipline letter
included reference to protected activity clearly implies animus toward that
activity. McKinsey also experienced “harassment and belittlement” regularly
from that time until his termination. (Tr. 21-23, 50). He described one
instance in particular, on December 20, when he was so distraught from this
harassment that he began to shake. (Tr. 41,71-72). After this harassment, he
was forced to clock out of work, losing compensation. (Tr. 41, 72). McKinsey
was also demoted from his position as supervisor, albeit without a
corresponding reduction in pay. (Tr. 24-25, 49-50, 69-70). Finally, less than
two months after the inspection and following a campaign in which McKinsey alleged
Sauerborn was attempting to force him to resign, McKinsey was terminated. (Tr. 25)(Application for
Temporary Reinstatement at Exhibit B, p. 2).
 I find that McKinsey’s testimony regarding the negative change in his work
environment following his safety complaints raises a non-frivolous issue as to hostility
or animus towards protected activity.

Disparate
Treatment

“Typical forms of disparate treatment
are encountered where employees guilty of the same, or more serious, offenses
than the alleged discriminatee escape the disciplinary fate which befalls the
latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2512 (Nov. 1981). In this case, McKinsey was allegedly fired for
deficiencies in his work and attitude. There is no evidence on record of any
other employees receiving less severe punishment for the same or similar
misconduct. However, the Commission has previously held that evidence of disparate treatment is not necessary
to prove a prima facie claim of discrimination when the other indicia of
discriminatory intent are present. Id. at 2510-2513.

As has already been shown, there is
sufficient evidence to conclude that this discrimination claim was not
frivolously brought as it relates to animus, knowledge, and coincidence in
time. Therefore, I find that the Secretary has established a nexus between McKinsey’s protected
activity and the Respondent’s subsequent adverse action.

Conclusion

In
concluding that McKinsey’s complaint herein was not frivolously brought, I give
weight to the evidence of record that he called to make complaints to MSHA. I
also conclude that there were non-frivolous issues as to whether Respondent was
aware of McKinsey’s actions, that Respondent showed animus toward McKinsey’s
alleged protected activities, and that there was a close connection in time
between his alleged protected activity and his demotion and discharge.

Respondent
asserts that its discharge of Respondent was based on his unprotected
activities, specifically failure to properly perform work tasks. I find that
Respondent’s evidence on
this record is not sufficient to demonstrate that McKinsey’s complaint of
discrimination was frivolously brought. To the contrary, since the allegations
of discrimination have not been shown to be lacking in merit, I find they are
not frivolous.

ORDER

Based
on the above findings, the Secretary’s
Application for Temporary Reinstatement is granted. Accordingly, Respondent is ORDERED
to provide immediate reinstatement to McKinsey, as a maintenance mechanic, at
the same rate of pay, for the same number of hours worked, and with the same
benefits, as at the time of his discharge.

/s/
John Kent Lewis   

John
Kent Lewis

Administrative
Law Judge

Distribution: (Certified
Mail)

Uche N. Egemonye, Esq., Office of the
Solicitor, U.S. Department of Labor, 61 Forsyth Street, SW, Room 7T10, Atlanta,
GA 30303

Fred McKinsey, 6888 US Hwy 258 N,
Tarboro, NC 27886

Roger Sauerborn, President, Pretty Good
Sand Company, Inc., 6563 NC 97 W, Battleboro, NC 27809

Michael Larue, Special Investigator,
Southeast District, USDOL/MSHA/MNM, 135 Gemini Circle, Suite 212, Birmingham,
AL 35209

/tjb

[1] Under Commission Rule 45, a Temporary Reinstatement
hearing must be held within 10 calendar days of an operator’s request. 29
C.F.R. §2700.45(c). During the April 10, 2014 conference call, the parties
agreed to waive this limitation to allow the hearing to be held on April 30,
2014.

[2] “Substantial evidence” means “such
relevant evidence as a reliable 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)).

[3] See also attachment sent to the Respondent
with relevant case and statutory law regarding the lesser evidentiary burden
imposed on the Secretary at a temporary reinstatement hearing.

[4] See also Respondent’s queries regarding
credibility being “the heart” of a reinstatement proceeding (Transcript at 47)
and this Court’s specific instruction that it would not attempt to resolve
alleged inaccuracies or conflicts in testimony prior to discovery and hearing
on the merits.

[5] The parties stipulated that the termination occurred
on January 10, 2014. However, all testimony and previously filed documents
indicated that the date was January 13, 2014. No explanation was given for this
discrepancy.

[6] Hereinafter
references to the transcript will be cited “Tr.” with the page number.

[7] The left-hand margin of the photocopied
Discrimination Report filed by the Secretary was cut off. As a result, several
words are either missing in whole or in part. These words have been recreated to
the extent possible. Words and letters that are based on attempts to complete
the document are included in brackets.

[8] Fred McKinsey
was present at the hearing and testified for the Secretary. (Tr. 14). At the
time of the hearing, he was unemployed, having last worked for Respondent. (Tr.
14).

[9] Roger E.
Sauerborn was the owner of Respondent and represented Respondent at the
hearing. (Tr. 64). He was also called as a witness by the Secretary and
testified at the hearing. (Tr. 64).

[10]
However,
McKinsey conceded it was possible that he and Sauerborn had a conversation of
September 16, 2013 about promptly ordering parts, but he could not recall
specifically. (Tr. 30). He did not receive a written follow up the next day. (Tr.
30).

[11] There is clearly a conflict in the testimony
regarding what occurred on December 20, 2013. However, at this time it would be
improper to weigh this testimony. Instead, the miner’s testimony will be
considered in determining whether this claim was frivolously brought.

[12] The subject
paragraph stated, “An unknown person called MSHA with five allegations of wrong
doing. While the inspector was on site, MSHA was contacted, a sixth allegation
was made, then amplified. Most of the allegations were topics you and I
discussed, and had disagreements. MSHA found the six allegations to be false. You
volunteered that you did not call MSHA, and it may have been one of your
girlfriends, or Josh’s parent. I would like you to tell me later what you have
learned from this incident.” (CX-5)(Tr. 26-27).

[13] Respondent’s Representative testified at length (and
elicited testimony) regarding the miner’s attitude and the quality of his work.
Specifically, Respondent presented evidence regarding McKinsey’s efforts to fix
a mirror and windows on a truck (Tr. 31-34, 45-46); McKinsey’s work on a truck
that subsequently lost a wheel (Tr. 35); McKinsey’s work in cleaning dirt out
of a truck (Tr. 43-44); McKinsey’s actions in accidentally striking a
flashboard riser’s supports in a piece of equipment (Tr. 33-34); and the length
of time that McKinsey took in repairing a Suburban truck. (Tr. 34, 56-57). Further,
Respondent presented evidence regarding the special accommodations Sauerborn
made to help McKinsey succeed. (Tr. 68-70). As the purpose of this hearing is
to determine whether McKinsey’s claims “may have merit,” this evidence is not
relevant. However, all or some of this evidence may be appropriate for
presentation during a hearing on the merits.