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

Read the official release (fmshrc.gov)

Plain-English summary

Fred McKinsey made internal safety complaints and filed an MSHA hazard complaint while working at Pretty Good Sand Company's Great Pit Mine. Soon afterward, the company reduced his hours, demoted him, increased written criticism, and terminated him. Judge John Kent Lewis found that the protected activity substantially motivated those actions and that the company's stated reliance on accumulated poor performance and insubordination was pretextual because comparable discipline had not occurred before the safety complaint. However, credible evidence discovered during the litigation showed that McKinsey had threatened his supervisor's life in front of a customer, conduct that would independently have justified termination once the company learned of it. The Judge therefore upheld the discrimination claim but denied reinstatement, ended back pay on the date the company learned of the threats, awarded $12,647.25 plus interest, required a neutral employment reference, and assessed a $5,000 civil penalty.

Decision snapshot

• Governing authority: 30 U.S.C. §§ 815(c) and 820(i)
• Outcome: The discrimination claim was upheld, relief was limited by after-acquired misconduct evidence, and the company owed $12,647.25 plus interest and a $5,000 penalty.
• Key point: Serious misconduct discovered after an unlawful discharge does not erase discrimination liability, but it can cut off reinstatement and back-pay remedies from the date the employer learns of it.

Full text (FMSHRC public release)

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

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 2014-344 DM

MSHA
Case No.: SE MD 14-12

Mine:
Great Pit

Mine
ID: 31-02014

DECISION

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

Matthew R. Korn, Esq., Fisher &
Phillips, LLP, Columbia, SC, Representing Respondent

Before:                                   Judge
Lewis                           

This case is before me upon
a complaint of discrimination brought by the Secretary of Labor (“Secretary”)
on behalf of Fred McKinsey (“McKinsey”), a miner, against Pretty Good Sand
Company, Inc., a corporation (“PGSC”), pursuant to § 105(c) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c).

Complainant McKinsey alleged
that Respondent unlawfully discharged him in January 2014, after he made a
safety complaint to the Mine Safety and Health Administration (“MSHA”) on November
25, 2013.  

On February 18, 2014,
McKinsey filed a discrimination complaint with MSHA. After conducting an
investigation, the Secretary found that McKinsey’s assertion was not
frivolously brought and filed an Application for Temporary Reinstatement on
March 26, 2014. 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. On May 6, 2014, the undersigned issued a Decision and Order
Temporarily Reinstating McKinsey to his former position with PGSC.

On June 3, 2014,
the Secretary filed a complaint on McKinsey’s behalf with MSHA alleging discrimination
under Section 105(c) of the Mine Act. On June 16, 2014, the Secretary filed an
amended Discrimination Complaint to include the civil penalties assessed by
MSHA

On June 17, 2014, the
parties submitted a Joint Motion to Amend Order of Reinstatement. Under the
terms of that agreement, McKinsey would be economically reinstated rather than
physically reinstated to the mine, retroactive to the date of the Decision and
Order. On June 19, 2014 the undersigned issued a decision and order granting the
economic reinstatement of McKinsey.

The discrimination hearing was held in
Rocky Mount, North Carolina on July 22 and 23, 2014, at which both the
Secretary and Respondent presented evidence and testimony. Subsequent to the
hearing both parties submitted briefs which have been received and considered
in rendering this decision.

For reasons set forth below, I find that
the Secretary has presented a prima facie case of discrimination, and
that the Respondent has failed to present an affirmative defense as it did not
present a valid business justification for terminating the Complainant based on
an accumulation of poor work performance and insubordination. However, the
after-acquired evidence submitted by Respondent supports an independent
non-discriminatory basis for the Complainant’s dismissal.

I.
Stipulations

At
the hearing, the Secretary and PGSC entered into the following stipulations
(Tr. 9-10)[1]:

a.      
PGSC is and
was at all relevant times through this proceeding the operator of the Great Pit
Mine, Mine ID number 31-02014.

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

c.      
At all times
relevant to this proceeding, products of Great Pit Mine entered commerce, are
the operations of products thereof affecting commerce within the meanings and
scope of section 4 for Mine Act, 30 I.S.C. § 803.

d.     
PGSC is an
operator, as the term operator is defined in Section 3(d) of the Mine Act, 30
U.S.C. § 802(d).

e.      
McKinsey was previously
employed by PGSC. McKinsey is a miner within the meaning of Section 3(g) of the
Mine Act, 30 U.S.C. 302(g).

f.      
McKinsey was
terminated from PGSC on January 10, 2014.

g.     
PGSC 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. § 815 as amended. (Tr. 9-10).

II. Summary
of the Testimony

A.
Fred McKinsey

Fred
McKinsey began working at PGSC as a general laborer and equipment operator in
July 2013. Prior to his employment with PGSC, McKinsey worked as a mechanic for
30 years in various capacities. (Tr. 45-46). The owner/operator of PGSC and Great
Pit Mine, Roger Sauerborn (“Sauerborn”), hired McKinsey. (Tr. 25-26). During
his initial interview for employment, McKinsey revealed to Sauerborn that he
had Asperger’s syndrome and detailed the effects it had on his personality and
behavior. McKinsey explained that he liked to be left alone and “didn’t deal
the best in the world with a lot of people situations.” [sic] (Tr. 27). McKinsey
further explained that he did not like to shake hands or touch people and felt
stress when attention was focused on him. (Tr. 27-28). At the conclusion of the
interview, McKinsey signed a non-compete clause and began employment with PGSC.
(Tr. 28-29; GX1).[2]

McKinsey’s starting
pay was $15 per hour and he worked an average of 45 hours a week. (Tr. 29). Dennis
Cannon was McKinsey’s initial supervisor and Cannon provided McKinsey work
related instructions, which varied daily. McKinsey remained in this position
for approximately two months before Sauerborn promoted him to supervisor. (Tr.
30-31). With the promotion, McKinsey received a raise of $2.75 per hour, which
increased his salary to $17.75 per hour. The new supervisory position also
increased McKinsey’s responsibility, which included managing other employees
and ensuring the safety and efficiency of the sand pit. (Tr. 31). McKinsey was
required to fill out and review safety worksheets for equipment that the
company used in the day-to-day operations. He would also fix machinery that he
was able and permitted to fix, while bringing any major repair issues to
Sauerborn. (Tr. 32-34; GX 2). McKinsey testified that he was not permitted to
make repairs that would cost more than $100-$150 without first consulting
Sauerborn. (Tr. 35, 47).

In his position as
supervisor, McKinsey would make safety complaints to Sauerborn. Such complaints
included issues with the high walls, as well as one incident where individuals
were caught rifle-hunting on company property. (Tr. 35-36). McKinsey testified
that Sauerborn would frequently deflect the safety complaints. (Tr. 36). Because
Sauerborn refused to take action regarding the safety complaints, McKinsey
filed a hazard complaint with MSHA on November 25, 2013, by calling a hotline
number he found online. (Tr. 77). At the time, McKinsey felt that calling in
safety complaints was “generally frowned upon by coworkers and employees,” so
he did not reveal that he made the call. (Tr. 77-78).

McKinsey called
MSHA on two separate occasions during which time he complained of “unsafe
equipment, high walls and hunting on company property.” (Tr. 36-37). The first
phone call was on November 25, 2013, and the inspector came to the site the
following day. McKinsey made the second phone call while this inspection was
being conducted because he testified that he had forgotten to mention the
highwall issue in the original complaint call. (Tr. 39-40). Sauerborn closed
the site following the inspection and gave the employees time off from
Wednesday, November 27, through the Thanksgiving weekend. (Tr. 37, 39).

Upon returning to work
the following Monday, December 2, McKinsey felt Sauerborn’s attitude toward him
had changed. (Tr. 40). McKinsey testified that Sauerborn treated him
differently and would single him out and belittle him. (Tr. 38-41, 96).     

McKinsey did not
remember the precise reasons that he stated led Sauerborn to discriminate
against him - whether it was for his Asperger’s syndrome or something else- but
he felt he was targeted in ways that he told Sauerborn “just don’t work with
him.” (sic) (Tr. 90-91, 93, 96).

McKinsey did not reveal
that he was the person who called in the complaint, but he did inquire verbally
as to why he was being treated differently after the inspection. (Tr. 81-84). Prior
to the inspection, McKinsey testified that he was not formally written up,
disciplined or verbally reprimanded by Sauerborn. (Tr. 41, 74-75). After the
inspection, Sauerborn began sending e-mails to McKinsey regarding his work
performance and the fact that someone called MSHA to report a complaint. (Tr.
42).

The first e-mail was
sent December 7, 2013. (Tr. 42; GX 3). The email raised the following issues:
cracked mirrors on the D-250, installation of the flashboard on site, clay being
improperly dumped in a drain fill area, issues with a berm, mechanical issues
with a baby loader, inspection of the site’s Suburban vehicle, repair of the
site’s International Truck and a wheel coming off a dump trailer. McKinsey felt
the e-mail was accusatory in nature because it referenced the call to MSHA and
asked him “what have you learned from this incident?” which McKinsey understood
to be an accusation. (Tr. 48-49).

On redirect
examination, McKinsey discussed the content of the e-mail sent December 7, 2013
in more depth. (Tr. 568; GX 3). McKinsey recalled the mirrors on the D-250 haul
truck were cracked and Sauerborn said they had been cracked for years.
Sauerborn also stated the mirrors were not an issue, and McKinsey could use the
truck. (Tr. 568-569). Later, Sauerborn approached McKinsey and told him to park
the truck and find replacement mirrors in the boneyard.[3]
(Tr. 569). After not being able to locate the proper mirrors, Sauerborn
instructed McKinsey to replace them with mirrors that were made to fit other
types of vehicles. (Tr. 569-570, 594). Ultimately the mirrors were loose and
vibrated when the machine was operated. (Tr. 570).

The next issue
mentioned in the December 7, 2013, email concerned PGSC employees Matt and Josh
Lane installing flashboard risers.[4] Matt did not go to the
site but Sauerborn and Lane went to repair the flashboard risers and McKinsey
was unable to reach either of them by radio. McKinsey did not attempt a phone
call to either because in his experience they rarely answered phones at the job
site. McKinsey took a vehicle on the path to see where they were.[5]
(Tr. 571-572).

McKinsey testified that
he did not put clay in the drain fill area as Sauerborn stated in the email.
(Tr. 572). McKinsey claimed that he was never in the drain fill area and
followed Sauerborn’s instructions regarding where to dump the clay. (Tr.
573-575). McKinsey also stated that it was part of everyone’s duty to maintain
the berms. McKinsey would have completed any berm he was working on had he seen
a problem, but he could not be sure to which area the citation referred. (Tr.
575-576).

McKinsey admitted there
was a mechanical issue with the WA-300 baby loader but refuted the fact that he
said the WA-300 baby loader was going to “break in half” as Sauerborn stated in
the email. McKinsey believed Sauerborn exaggerated what was written on the
pre-shift sheet in the email and in his testimony. (Tr. 576-577).

In the email, Sauerborn
also accused McKinsey of improperly repairing the site’s dump trailer. At the
hearing McKinsey denied that his repair work was the reason for the wheel
coming off the dump trailer. If anything had been wrong with his repairs, the
issues would have become apparent when he replaced the brake plate on the axle.
(Tr. 578-580).

When Sauerborn asked
McKinsey to prepare the Suburban for inspection, McKinsey ran a diagnostic
check and discovered the Suburban would require extensive repairs. McKinsey
spent all day on the repairs focusing on what he thought was most important to
fix and worked six hours of overtime on the vehicle. (Tr. 580-583). At the
conclusion of the work, the Suburban was still not ready for inspection and
McKinsey informed Sauerborn of the situation. (Tr. 583).

Finally, the December
7, 2013, e-mail referred to the day Sauerborn instructed McKinsey to make the
International Truck at the mine site “road worthy.” McKinsey did not have the
required parts to do so because Sauerborn wanted him to use parts from another
truck at the mine. (Tr. 583-584). McKinsey had trouble with the repairs because
both trucks were old and both had worn out parts. (Tr. 584). Additionally, once
McKinsey began work on the truck, Sauerborn interrupted him several times,
making it difficult to finish the job. (Tr. 585).

Sauerborn sent a second
e-mail to McKinsey on December 11, 2013, which was the day McKinsey was demoted
and Lane was promoted to the supervisory position. (Tr. 52-53, 55; GX 5).  At
the hearing, McKinsey indicated that the e-mail was sent after Sauerborn
reduced his hours, began treating him poorly and sent him home. (Tr. 49-51; GX
4). Additionally, a handwritten note was attached to McKinsey’s time card that
described Sauerborn’s issues with McKinsey’s work performance. McKinsey further
testified that he was not sure why he was demoted, but stated that Sauerborn
did not reduce his pay in connection with the demotion. (Tr. 55, 85-86).

The third and final
e-mail was sent to McKinsey on December 30, 2013. This e-mail referenced prior
interactions between Sauerborn and McKinsey on December 20, 2013 that resulted
in Sauerborn sending McKinsey home early and McKinsey refusing to leave. (Tr.
54; GX6).

McKinsey testified that
he did not end his employment with PGSC voluntarily. (Tr. 56).  He claimed he
was fired after an incident that occurred on January 10, 2014. From the office,
Sauerborn observed McKinsey cleaning up the area around a truck without a
raincoat. Sauerborn retrieved a raincoat from the back of his vehicle and
instructed McKinsey to wear it. (Tr. 56-57). When McKinsey told Sauerborn “no”
because the raincoat was dirty and he did not like to wear other people’s
clothing, he was instructed to clock out and leave. No other employee was asked
to don a raincoat nor did Sauerborn have additional raincoats available for the
other employees in the field. (Tr. 57-60, 93-94, 130-131, 592-593).

McKinsey
testified that he was unaware of a company policy requiring the use of a
raincoat, and the rain was only “barely sprinkling.” (Tr. 58, 60). After the
encounter, Sauerborn returned to his vehicle and left the area where McKinsey
was cleaning. McKinsey attempted to catch up with him and ask why he had to
clock out, but was unable to do so because of an injured left foot. McKinsey
testified that Sauerborn proceeded to attempt to run McKinsey over with his
car. (Tr. 59-60, 94). McKinsey did not report Sauerborn to the police for
allegedly trying to run him over with his car. (Tr. 93-94, 130).

On cross-examination McKinsey
did not recall telling anyone connected to the Respondent about making the safety
complaint, but did admit to telling friends unrelated to the company. (Tr. 98).
McKinsey stated that he could not recall whether he mentioned something to
Carol Medlin, a temporary secretary. (Tr. 98-99). McKinsey also did not recall
telling the Employment Security Commission he was being harassed or
discriminated against for the safety complaint he made to MSHA. (Tr. 115).

He admitted to
posting a comment to Facebook about his termination and remarking on the
discrimination as well as Asperger’s syndrome.
[6] (Tr. 119, 122-124).
Lastly, McKinsey testified that the MSHA inspector informed him he could file a
discrimination complaint after being terminated. (Tr. 130).

McKinsey was
fired via text message and e-mail on January 13, 2014. (Tr. 61-62; GX 7).
McKinsey has been unemployed since his termination and has actively been
looking for work. (Tr. 63-65, 73, 99-100; GX 8). McKinsey does not want PGSC to
reinstate him to his prior position. (Tr. 94-95). McKinsey has deferred his
house payment and incurred late fees on various bills because of his
termination. Additionally, he has accrued legal fees from consulting with a
lawyer in connection with his termination. (Tr. 65-67, 125-126; GX 9). McKinsey
did not remember the first time he contacted an attorney, but testified that he
contacted attorneys “a whole lot,” after January 2014 in an attempt to hire one
for these proceedings. (Tr. 91-92). McKinsey also testified to being without
health insurance from the date of his firing to his temporary economic
reinstatement on May 6, 2014. (Tr. 68, 107, 124-125).        

B.
Roger Sauerborn

Roger Sauerborn
testified that he is a consulting forester, a North Carolina real estate
broker, and the owner of PGSC, a company that manufactures state approved
concrete sand and mortar sand. PGSC also sells topsoil, fill sand, fill clay,
sandy gravel and crushed rock. (Tr. 329-330). Sauerborn has owned the company
since approximately 1987. (Tr. 330).

During the time
McKinsey was employed with PGSC, there were nine employees. The employees’
duties included loading trucks, running the plant, weighing the trucks out,
invoicing tickets, and sending billings. (Tr. 330). PGSC was a small
corporation and its net worth was “about a half million dollars” at the time
the discrimination complaint was filed. (Tr. 331).

Sauerborn testified
that there was an employee handbook provided to all new employees and the
handbook was in effect at the time McKinsey was hired. (Tr. 331-332; RX 9). The
handbook discusses types of behavior that are considered inappropriate or
unacceptable. (Tr. 332). Sauerborn believes McKinsey received the handbook as
part of the hiring procedure; however, McKinsey did not sign an acknowledgment
form saying he received it because that was not procedure at the time. (Tr.
334-335).

Sauerborn hired
McKinsey in July 2013, as a mechanic. (Tr. 336).  McKinsey was hired with the
understanding that the company would train him to complete other tasks because
he had expressed an interest in learning all facets of the company’s operation.
(Tr. 337).

At the initial
interview for employment, Sauerborn felt McKinsey possessed the skills
necessary to perform the job as a mechanic at PGSC and that he would be well-suited
for the position given his employment history. (Tr. 337-338). During the
interview, McKinsey informed Sauerborn that he had Asperger’s syndrome. (Tr.
338). Sauerborn had two nephews with autism and believed that he had some
understanding of the condition and that knowledge could help McKinsey focus on
his job. (Tr. 339). At the beginning of his employment, Sauerborn found
McKinsey to be a good employee. (Tr. 339).

However, Sauerborn
began noticing issues with McKinsey’s employment sometime in August, 2013, when
McKinsey and Dina Davis had a disagreement concerning use of the phone in the
office. (Tr. 339). Sauerborn instructed Davis to write a letter regarding her
version of the disagreement. (Tr. 339-340; RX 10). Sauerborn testified that the
disagreement was over a new procedure that Davis and Dennis Cannon worked out
concerning phone communication around Davis’ desk. (Tr. 341).  McKinsey was not
yet informed of the new procedure and he asked to use the phone around Davis’
desk. Davis told McKinsey to use another phone and an escalating confrontation
occurred. Sauerborn believes McKinsey swore at Davis. (Tr. 341). Sauerborn
testified that he discussed the incident with McKinsey, explained to him that
his behavior was improper, and provided him an opportunity to write his own
statement, but McKinsey chose not to do so. (Tr. 342-343). Sauerborn considered
this conversation to be a verbal warning. (Tr. 342-343).

In September of 2013, shortly
after this incident with Davis and after Cannon was terminated, Sauerborn
promoted McKinsey to a supervisor position. (Tr. 343). McKinsey expressed
interest in the job and Sauerborn believed that he would be a good supervisor.
Sauerborn explained that there was a need for a supervisor because he was busy with
other business obligations. (Tr. 343-344). McKinsey’s promotion resulted in a
raise, which increased his hourly pay from $15 to $17.75 an hour. (Tr. 344).

After a week in
his new position as supervisor, McKinsey and Davis were involved in a second
incident regarding a disagreement over a payroll estimate on McKinsey’s new
paycheck. During this incident, Sauerborn testified that McKinsey swore and
acted “really inappropriate.” Davis wrote a letter detailing the events that
occurred during the incident. (Tr. 345-346; RX 11). On September 10, 2013,
Sauerborn discussed the issue with McKinsey and gave him an opportunity to
write a statement, which McKinsey again chose not to do. (Tr. 348). Sauerborn testified
that he also considered this conversation to be a verbal warning to McKinsey.
(Tr. 349).

Sauerborn recalled
two other incidents regarding McKinsey’s work performance and referred to the
text message record to clarify his testimony. (Tr. 349; RX 25). The first
incident occurred in September and involved a bearing that had worn out and stopped
production at the plant. (Tr. 351). The bearing needed to be replaced, yet
McKinsey could not locate a replacement. Sauerborn testified that it was
McKinsey’s responsibility to keep an extra bearing available. (Tr. 351). Sauerborn
ended up finding a replacement at a nearby store and picked it up on his way
back to the pit. When Sauerborn arrived back, he felt that McKinsey was rude to
him in front of several other employees. McKinsey blamed Sauerborn for not
being able to locate an extra bearing because Sauerborn was “calling every few
minutes.” (Tr. 351-352). Sauerborn told McKinsey a number of times to praise
people in public and say negative things privately. (Tr. 352-353, 355-356). Sauerborn
gave a written warning to McKinsey regarding this incident on September 17,
2013. (Tr.353-354; RX 12). McKinsey disagreed with the letter because he felt
Sauerborn contacted him too much, thereby inhibiting his ability to locate a
bearing. (Tr. 354). Sauerborn did not feel as if he contacted McKinsey too much
that day. (Tr. 354-355).

The second
incident occurred in December and involved a work truck that required a fuel
line cleaning. (Tr. 349). Specifically, McKinsey wanted to perform $3,000 worth
of repairs when Sauerborn believed that the truck only needed a $30 replacement
piece. (Tr. 350). Sauerborn considered this to be inadequate performance on
McKinsey’s behalf. (Tr. 350).

On December 7,
2013, Sauerborn created a document detailing roughly a month of McKinsey’s
performance issues and sent it to McKinsey via email. (Tr. 357-358, 485-488; RX
13). Sauerborn testified that he did not write the e-mail regarding these
incidents until December 7, 2013 because he was busy investing his time into
his other businesses. (Tr. 366, 369).

The December 7,
2013, email addressed the following issues Sauerborn had with McKinsey’s
performance. At the hearing, Sauerborn testified about the contents of the
e-mail:

·        
In the e-mail
Sauerborn addressed the lack of communication regarding work assignments and
the quality of that communication. Sauerborn testified that he thought
communication could improve between them and he felt McKinsey needed to
communicate more effectively. (Tr. 360-362).

·        
In the e-mail
Sauerborn also addressed an incident when McKinsey was driving a truck with
broken mirrors on November 18, 2013. McKinsey failed to indicate the damage on
the pre-shift report, which is a guaranteed citation. (Tr. 363). Another
argument took place regarding the replacement of the mirror. Sauerborn felt
McKinsey did not properly perform his duty as foreman because he failed to
replace or report the broken mirror. (Tr. 364-365).

·        
On November 20,
2013, McKinsey did not follow procedure by ensuring tasks were completed by the
employees who were assigned to complete them which Sauerborn addressed in the
e-mail. Sauerborn testified that when he followed up with McKinsey two days
later he discovered that Matt had a recurrence of a hernia and McKinsey failed
to obtain a doctor’s note from him and did not inform Sauerborn of Matt’s
condition as required. (Tr. 367-368).

·        
On November
21, 2013, McKinsey dumped clay on a tract of land that was being built up for
use as a residential property which Sauerborn stated in the e-mail. Sauerborn testified
that he instructed McKinsey not to dump clay in the only area a septic tank
could be placed. Sauerborn contends McKinsey dumped the clay there despite
being told not to do so. McKinsey again dumped clay there the following day and
may have destroyed the potential land use. (Tr. 369-372).

·        
An unknown
person called MSHA with five allegations of wrongdoing and then a sixth was
called during the inspection on November 26, 2013. The e-mail stated that
McKinsey volunteered that he did not call MSHA but suggested it may have been
one of his girlfriends or Josh Lane’s parents. Sauerborn testified that at the
time McKinsey made the statement he did not know which one of the employees
called MSHA, but he knew the statements were too specific to come from the
public. (Tr. 374).

·        
The e-mail
stated that McKinsey also failed to alert Sauerborn of a “noise” issue with the
WA-300 machine, which could have been repaired for $500 and ultimately cost
$5,000 to fix because of the fine from MSHA. Sauerborn testified that McKinsey,
as a supervisor and mechanic, should have known that repairs were needed and
alerted Sauerborn via the office white board. (Tr. 376-378, 429-430).

·        
The e-mail
addressed repair issues concerning a dump trailer that McKinsey cleared for
operation but 30 miles of use resulted in the trailer losing a wheel on
November 27, 2013. Sauerborn testified that he blamed McKinsey’s repairs for
the issue and also testified that the issue should have been identified by
McKinsey during his inspection of the vehicle before putting it back in
service. (Tr. 379-380).

·        
The e-mail
stated that Sauerborn instructed McKinsey to prepare the Suburban on site for
inspection around November 20, 2013. (Tr. 380). Sauerborn testified that after
charging six hours of overtime to fix the Suburban, McKinsey still had not
completed the repairs needed for a passing inspection and Sauerborn experienced
issues when driving the vehicle. (Tr. 380-383; RX 14).

·        
The e-mail referred
to a note Sauerborn left on McKinsey’s timecard on December 5, 2013,
instructing McKinsey to fix the International Truck on site because the
steering linkage needed to be swapped. Sauerborn testified that McKinsey
ignored his request to fix the International Truck and Sauerborn found McKinsey
a half mile away in an area that was “important but unurgent.” (sic). (Tr. 385-386).
When Sauerborn confronted McKinsey about the International Truck not being
operable, McKinsey said he was leaving early and did not fix the issue. McKinsey
also stated Sauerborn was not his supervisor and he did not have to inform him
when he was leaving early. (Tr. 386-387).

·        
The last item
in the e-mail warned McKinsey that if he disrespected Sauerborn in front of
others again, he would be sent home and have his hours cut. (Tr. 388). Sauerborn
testified that he did not permanently cut McKinsey’s hours but he did reduce
them the following Monday after the International Truck incident by telling him
to come in at noon the following Monday. Id.

Sauerborn did
not consider terminating McKinsey after the incidents described in the December
7 email. Rather, he wanted to make allowances for McKinsey’s
Asperger’s syndrome and to articulate that his choices had consequences. (Tr. 388-389).
Sauerborn considered his discipline policy as progressive discipline that
included verbal warnings, written warnings, time cuts, and sometimes pay-cuts.
(Tr. 389, 407).

On December 11,
Sauerborn demoted McKinsey from his supervisory role. He did not, however,
reduce his pay because McKinsey threatened to quit if his pay was reduced. (Tr.
390, 393). Sauerborn decided to promote Lane to McKinsey’s supervisory
position. He felt that as McKinsey’s cousin, Lane could help steer him in the
right direction. (Tr. 408). Sauerborn testified that McKinsey was demoted
because he chose to work in the rain despite verbal and written policies not to
work in the rain. (Tr. 391). On December 11, Sauerborn also gave a list to
McKinsey that contained tasks to complete if it was raining and tasks to
complete if it was not raining. (Tr. 392; RX 15). McKinsey did not follow the
written instructions on the list and changed a tire on an Explorer in the rain
despite shelter being available. (Tr. 394-395).

On December 11,
Sauerborn created another list of tasks for McKinsey and was disappointed to
see McKinsey had not completed the third item. (Tr. 397; RX 16). McKinsey had
damaged the four-wheeler and he did not fix it or report it; therefore,
Sauerborn was unable to use it. (Tr. 397-398).

There was also a
handwritten letter drafted on December 11, in which Sauerborn addressed
communication and performance issues regarding the lists. (Tr. 400; RX 17).  Sauerborn
testified that policies about working in the rain were in place because during
the cold winter months he feared his employees would get their clothes soaked
and then need a change of clothes and/or end up getting ill. (Tr. 401).  Sauerborn
testified that during his 30 years of ownership, he had believed that employees
had contracted the flu from working in the outdoor environment. He also testified
that he considered a raincoat as being necessary protective garment. (Tr. 402).

The letter to
McKinsey also praised his work on a successful reinstall of 330 boom cylinders.
(Tr. 403). However, Sauerborn was concerned with McKinsey’s choice not to take
a lunch or bathroom break because those activities were not on the list. Sauerborn
did not think he should have to write those activities down. (Tr. 404). Sauerborn
also referenced a phone call between he and McKinsey where McKinsey became
upset because he felt Sauerborn hung up on him. (Tr. 405).  Due to the phone
incident, McKinsey addressed Carol Medlin in a loud voice when Sauerborn was
present in a way that Sauerborn categorized as “bullying.” (Tr. 405-406).

The letter also
stated that during a meeting they had earlier on December 11, McKinsey would
not reveal to Sauerborn the name of the lawyer he contacted. Sauerborn
testified that McKinsey accused him of discriminating against him because of
his Asperger’s syndrome (and Sauerborn’s disbelief that he had the syndrome),
but he never claimed Sauerborn discriminated against him for the safety complaint
call. (Tr. 411-412). Sauerborn noted these events in the letter dated December
11, 2013. (Tr. 410; RX 18).  McKinsey did not take the opportunity to comment
on the letter. (Tr. 413).

On December 20,
Sauerborn attempted to say “hello” to McKinsey while he and Lane were driving
in the Suburban. (Tr. 413). McKinsey exited the vehicle and told Sauerborn in a
loud voice that he was discriminating against him. Id. McKinsey then
began to advance toward Sauerborn. Sauerborn put up his hands and told McKinsey
to clock out for an hour and cool off because the company Christmas party was
later that day. (Tr. 413-414, 416-417). Sauerborn noted this event in a letter
signed by Lane, dated December 30, 2013. (Tr. 414-415; RX 19).

A second
incident occurred when McKinsey and Lane were working on the 300 bushings and
Sauerborn again said “hello” to McKinsey. McKinsey once again accused Sauerborn
of discriminating against him because of his Asperger’s syndrome. (Tr. 418, 493).
Sauerborn then asked him to clock out, which McKinsey did not do, so Sauerborn
instructed Lane to send McKinsey home. Id. Sauerborn asked Lane and Ms.
Medlin to document the incident and to put in their own words what they had
observed. (Tr. 420-421; RX 20-21). Sauerborn did not fire McKinsey that day
because he was still holding out hope that McKinsey would do better. (Tr. 422).

On January 13,
2014, Sauerborn sent an e-mail terminating McKinsey’s employment and explaining
the reasons for the termination. (Tr. 423; RX 22). Sauerborn drafted the e-mail
at 3:15 pm on January 10, 2014. (Tr. 424). Sauerborn testified that he fired
McKinsey because of a “progression of action and inaction” on McKinsey’s part
over the course of his employment. However, there was one particular incident that
occurred on January 10, which prompted Sauerborn to terminate McKinsey. When
Sauerborn arrived at work there was a “misting” rain, so he retrieved a fresh
raincoat out of the break room and asked McKinsey to put it on. (Tr. 425).  McKinsey
said “no,” so Sauerborn instructed him to clock out. Sauerborn testified that at
that point, McKinsey became noticeably agitated so Sauerborn got back into his
car. As Sauerborn was trying to pull away, McKinsey jumped on the hood of his
car and climbed up to the windshield. (Tr. 425-427). Sauerborn stopped the car
and reached for his camera phone in an effort to film McKinsey as evidence. When
McKinsey jumped off the car and cleared the path, Sauerborn left the premises
and later texted Lane to send McKinsey home. (Tr. 425-428). Sauerborn
considered McKinsey’s response of “no” when asked to put on the raincoat to be
an act of insubordination. (Tr. 427). Sauerborn also testified that McKinsey’s
action of jumping on the hood of the car was part of the reason for
termination. (Tr. 433). Sauerborn did not call the police about the incident
but informed Lane to call the sheriff if McKinsey did not leave the pit. (Tr.
499-500). After he returned to the pit, Sauerborn had Lane and Rogers Leggett
put raincoats on as well. (Tr. 498, 510). Lane also drafted a witness statement
about the incident. (Tr. 432; RX 23).

Sauerborn
testified that he felt threatened after he contacted Calvin Lynch and heard his
description of what happened on December 20, 2013 (discussed infra). (Tr.
444). After learning of the events, Sauerborn moved his place of residence.
(Tr. 446). He also informed MSHA Special Investigator LaRue of the threat. (Tr.
447). Sauerborn did not directly tell LaRue that he fired McKinsey for
insubordination but described the incident on January 10, 2014, as “the straw
that broke the camel’s back.” (Tr. 501).

Sauerborn
testified that he encourages employee safety because his brother died trying to
save someone from an unsafe condition in the navy. (Tr. 449-450). He further denied
firing McKinsey for calling in the hazard complaint. (Tr. 451). The first time
he was sure McKinsey called in the complaint was when McKinsey filed EEOC documents.
(Tr. 451-452).

On
cross-examination Sauerborn acknowledged that when he observed Davis disobeying
doctor’s orders he wrote her up and gave her the opportunity to explain her
side of the situation in writing. (Tr. 461-465; GX 21, RX 10). However,
Sauerborn did not write a letter reprimanding McKinsey for the incident
regarding the new phone policy. Only a verbal warning was given. (Tr. 466). Sauerborn
concedes that he did not know whether McKinsey knew about the new phone rule.
(Tr. 467). Sauerborn also never documented in a letter that McKinsey shouted or
cursed at Davis during the incident. (Tr. 469). Sauerborn did not afford
McKinsey an opportunity to respond in writing to the incident but believes he
treated McKinsey and Davis the same way. (Tr. 472).

Sauerborn
testified that he gave McKinsey wide latitude in ordering parts and supplies
stating that McKinsey could order parts up $300-$400. (Tr. 474, 475).

Sauerborn
conceded there was in fact an error with McKinsey’s paycheck in September 2013
and he verbally reprimanded Davis for the error. (Tr. 476).  Sauerborn also
admitted that pursuant to the employee handbook verbal reprimands should be
documented, but were not in certain circumstances. (Tr. 477-478, 494).

Sauerborn
testified that he considered McKinsey’s refusal to follow instructions
insubordination and contended the raincoat he brought for McKinsey on January
10, 2014, was not filthy and disgusting. (Tr. 510-511).

C. Roger Ouellette

Roger Ouellette
(“Ouellette”) was a mine safety health inspector for MSHA who previously worked
as a maintenance manager/supervisor for an open pit sand mine, construction
demolition landfill and dump truck company. (Tr. 136-137). After receiving an
allegation summary, Ouellette contacted McKinsey who asked repeatedly to remain
anonymous throughout the investigation process for fear of reprisal from the
operator, and Ouellette agreed. (Tr. 140, 169). The reason McKinsey feared
reprisal was because of the instruction he was given to tag any defective
equipment as being out of service if an MSHA inspector showed up. (Tr. 150, 169)
McKinsey also informed Ouellette that he had Asperger’s syndrome. (Tr. 142,
169).

On November 26,
2013, Ouellette conducted an inspection of PGSC’s sand pit. (Tr. 144). Ouellette
discussed the allegation summary with Sauerborn and made notes regarding each
of the allegations contained therein. (Tr. 145-147; GX 12). When discussing
allegation number 5 of the complaint (gunshots fired on company property) and
the issue of who called the allegation in, Sauerborn stated it could have only
been two employees, McKinsey or Lane. (Tr. 148-149, 156, 165). Ouellette
conducted interviews with all employees on November 26. (Tr. 150). At the
conclusion of the inspection, Ouellette issued two citations to Sauerborn for a
violation of the berming standard and a documentation violation, all of which
were unrelated to McKinsey’s allegations. (Tr. 153-154, 160-161; GX 13). Ouellette
conducted a close out conference with Sauerborn and completed a close out form
after the inspection. (Tr. 154-156; GX 14). Ouellette also agreed that there
was another complaint called in by McKinsey at lunch on November 26, and he
added it to the list of inspection items. (Tr. 176).

D.
Michael LaRue

Michael
LaRue (“LaRue”) was a mine safety and health inspector for the U.S. Department
of Labor, collateral duty special investigator, and collateral duty fatal
accident investigator. (Tr. 177). After receiving an initiation process
package, LaRue made contact with both parties and informed them of the
investigation. (Tr. 180). LaRue testified that he believed a discrimination
claim was a possibility after speaking with and taking formal statements from
both parties. (Tr. 180-183; GX 16, GX 17). Specifically, LaRue stated that
Sauerborn would not directly answer the question of whether he knew who
reported the violations, and Sauerborn said he wanted to move on as a company. Id.
LaRue also took a statement from Joshua Lane via telephone because he did
not want to meet in person for fear of reprisal if anyone found out he was
meeting with a MSHA investigator. (Tr. 188-189; GX 18).

During his
investigation, LaRue found what he believed to be multiple discriminatory acts
including demotion, cutting of hours, and termination, all of which were
directly related to the protected activities in which McKinsey was engaged.
(Tr. 192). Based on Ouellette’s report and Sauerborn’s comments, LaRue believed
that McKinsey was discriminated against. (Tr. 192-194). Additionally, LaRue
noted there were no incidents marked in McKinsey’s personnel record prior to
the safety complaint being filed with MSHA. (Tr. 193). LaRue testified that he
felt Sauerborn avoided the question of who filed the complaint and, therefore, asked
him three separate times if he knew which employee made the complaint.
Sauerborn never directly answered the question. (Tr. 212).

E.
Daniel Daughtridge

Daniel
Daughtridge (“Daughtridge”) was a psychotherapist at an outpatient mental
health clinic. (Tr. 258-259). He began to treat McKinsey for anxiety and job
related stress in January of 2014. (Tr. 260, 266). The subject matter of the
treatment sessions mainly included his termination and the events surrounding
it. Daughtridge and McKinsey particularly discussed the incident with the rain
coat and the subsequent incident where McKinsey thought he was going to be hit
by a car. (Tr. 261).

Daughtridge recommended
McKinsey for Asperger’s syndrome testing and after discussing the results, he
believed the tests confirmed an Autism Spectrum Disorder (“ASD”). (Tr. 262). ASD
often affects the way a person sees the world and how they relate to other
people and have social difficulties. (Tr. 264).

Daughtridge conceded
during his testimony that he did not have the expertise to diagnose ASD, which
is why he referred McKinsey for additional testing. (Tr. 266). An intake
therapist and colleague of his provisionally diagnosed McKinsey with a mood
disorder. (Tr. 267). Daughtridge also agreed that all of the symptoms he
observed could have been presented prior to McKinsey’s employment with PGSC.
(Tr. 268).

F.
Calvin Lynch

Calvin
Lynch (“Lynch”) was a customer of PGSC who had purchased sand from the company
on three different occasions. (Tr. 302-303). Lynch purchased sand twice on the
morning of December 20, 2013. (Tr. 304; RX 8). On his second trip to purchase
sand, Lynch entered the office and described seeing McKinsey upset. Lynch
testified that he was scared both for himself and for the woman working in the
office. (Tr. 306, 309). Lynch explained that McKinsey was swearing and getting
very upset, (he could not recall the name of the person McKinsey was upset
about) and that the woman working in the office attempted to calm him down but
he continued to be upset. (Tr. 307). Lynch stated that McKinsey kept saying,
“they don’t know me,” and that he had “some type of syndrome.” (Tr. 307-308). Lynch
further testified that McKinsey was in a rage - saying he was being lied about
by the same man and he was going to “…knock him in the head. I will kill him.”
(Tr. 308, 310). McKinsey apologized to Lynch several times but continued to
complain about his treatment at the company including being lied about and
losing working time. (Tr. 310-311).

Sauerborn called Lynch
in April of 2014, and asked if he recalled the events that occurred on December
20, 2013. (Tr. 311-312). Lynch said that he did remember and agreed to meet
with Sauerborn and the Respondent’s counsel Matthew Korn regarding the events
on that day. (Tr. 313-314).  Lynch agreed to testify about the events the best
he could recall. That was the end of the interaction between Sauerborn and
Lynch. (Tr. 313-315).

Lynch went on to
testify that he was initially afraid during the confrontation because he had
seen instances of disgruntled employees harming people at the workplace on TV
and that is what came to his mind. (Tr. 320). When he went back to the office
after loading the sand in his truck, he recalled McKinsey still being upset and
shaking. McKinsey proceeded to apologize to Lynch again. (Tr. 321). 

G.
Dina Davis

Dina
Davis (“Davis”) began employment at PGSC on February 18, 2013, first as a
delivery truck driver and then as an office employee. (Tr. 513). Davis took
medical leave effective September 25, 2013, and returned the latter part of
January 2014. (Tr. 514). Prior to her leave, she worked with McKinsey at PGSC,
and she knew him previously because they went to high school together. Id. Davis
told Sauerborn that she knew a mechanic (McKinsey) but did not know his work
ethic, and was hesitant at hearing to definitively say she recommended him for
the position. (Tr. 515).

With regard to the
altercation between McKinsey and Davis over his use of the office phone in late
August 2013, Davis testified that she wrote a letter describing the incident which
stated that McKinsey had a “temper tantrum” and acted inappropriately in front
of customers. (Tr. 516, 518, 538; RX 10). Davis testified that she had seen
McKinsey act in a similar fashion during high school when he would get
confrontational with teachers. (Tr. 520). Sauerborn took Davis’ statement and
discussed the incident with McKinsey. (Tr. 521, 539-541).

A second incident
occurred in early September 2013 regarding an issue with payroll. (Tr. 521). McKinsey
felt he should have been paid more pursuant to his supervisor position raise. McKinsey
asked Davis for the phone number to ADP -- the payroll company. When Davis
explained that he was not authorized to speak to ADP, McKinsey became irate and
began yelling and swearing at her in front of other employees. (Tr. 522-523,
527, 539). McKinsey also shared his time card and income information with
another employee, which is against company policy. (Tr. 523).

Davis testified about a
separate occasion where McKinsey encouraged her to sue Sauerborn for violating
HIPPA because he claimed Sauerborn contacted Davis’ doctor and tried to get
information about her condition. (Tr. 531). Davis also heard McKinsey make
various threats against Sauerborn including both suing and killing him. (Tr.
532). Davis testified that she would not feel comfortable if McKinsey were
reinstated because she does not trust him and he was a “loose cannon.” (Tr.
533).

Davis testified that
McKinsey received preferential treatment from Sauerborn such as driving the
company truck, taking company product without paying, and receiving work boots
that Sauerborn paid for personally. (Tr. 534). McKinsey also got paid for
holiday vacation time, which was against company policy because McKinsey had
not worked with the company for the required year. (Tr. 535).

Davis does not believe
Sauerborn would terminate an employee for making a safety complaint.
Additionally, McKinsey never told Davis he was being discriminated against for
making the complaint. (Tr. 535).

H.
Alton Lorenzo Moses

Alton
Lorenzo Moses (“Moses”) began working at PGSC in approximately December 1996.
(Tr. 544). At the time of the hearing, he was the acting supervisor, a position
he took when Josh Lane left the company. (Tr. 556). When McKinsey began working
at PGSC, he informed Moses that he had Asperger’s syndrome. (Tr. 546). Moses’
interactions with McKinsey were never straightforward. Moses testified that
when he addressed McKinsey he could never get a straight answer. Moses
explained that he heard McKinsey cursing at work from time to time and he
overheard McKinsey call Sauerborn stupid. (Tr. 547-548). McKinsey never told
Moses that he was being discriminated against because he filed the safety
complaint, but he did say someday he would own the place. (Tr. 548).  Moses
testified that Sauerborn could be difficult to work with, but he is difficult
with every employee at the mine. (Tr. 548-549).

Moses acknowledged that
there was a policy in place regarding working in the rain and raincoats were
available for employees to use. (Tr. 549-550). Moses further acknowledged that
the employee handbook contains company policies and was available to all
employees. (Tr. 550).

Sauerborn never
indicated to Moses that he believed McKinsey made the complaint to MSHA. Additionally,
Moses did not believe Sauerborn would fire someone for making a safety
complaint. (Tr. 552). Moses was never punished for reporting safety issues to
Sauerborn, and Sauerborn would fix the safety issues whenever they were called
to his attention. (Tr. 553).

Moses
testified that he heard from multiple employees that Sauerborn terminated
McKinsey for an incident that occurred in the rain when McKinsey jumped on Sauerborn’s
car. (Tr. 554-555).

III.
Contentions of the Parties

The
Secretary contends that the elements necessary to establish a prima facie
case of discrimination have been satisfied. First, the Secretary argues that
McKinsey was engaged in protected activity when he filed the safety complaint
with MSHA and when he made routine complaints to his supervisor, Sauerborn. Secretary’s
Post-Hearing Brief at p. 7. Second, the Secretary argues that
adverse action was taken against McKinsey as a direct result of his
participation in such activity. Id. at 8. The circumstantial indicia of
discriminatory motivation including knowledge, hostility, coincidence in time,
and disparate treatment have all been established as evidenced by McKinsey’s
reduced hours, the demotion from his supervisory capacity, repeated harassment
by Sauerborn, and ultimately his discharge from PGSC. Id.

The
Respondent, however, asserts that a prima facie case has not been
established, as the Secretary failed to demonstrate a nexus between the
protected activity and the adverse action. Respondent’s Post-Hearing Brief
at p. 17. Specifically, the Respondent contends that there was a legitimate,
nondiscriminatory basis for terminating McKinsey – failing to follow a direct
order from a supervisor and inadequately performing job duties – and that PGSC
would have terminated him on those grounds alone. Id. at 18. In fact,
Respondent argues Sauerborn did not know it was McKinsey who filed the hazard
complaint with MSHA. Id.

However,
assuming the ALJ finds a prima facie case has been made, Respondent
alleges it has successfully rebutted such. Id. at 18-19. The Respondent
further contends that the proffered reasons for terminating McKinsey are
independent and alternative in nature, not cumulative as suggested by the
Secretary. Respondent’s Reply to Post-Hearing Brief at p. 8. PGSC
ultimately terminated McKinsey for his refusal to follow direct instructions
from his supervisor and then jumping on the hood of his supervisor’s car,
reasons that are both independently sufficient to warrant termination. Id.

The
Secretary argues that the multiple reasons offered by the Respondent for
terminating McKinsey are cumulative in nature. Secretary’s Post-Hearing
Brief at p. 14. Furthermore, when one of the reasons fails for a lack of
credibility, as it does in the instant matter, the entire basis for termination
is deemed not credible. Id. at 14-24. The Secretary takes the position
that both proffered reasons -- poor work performance and failure to don a
raincoat -- fail as pretext. Id. Specifically, the reasons either did
not actually motivate the adverse action or were insufficient to justify
termination, and therefore, the affirmative defense must also fail. Id.
at 14, 21-24.

The
Secretary contends, arguendo that if the ALJ finds the Respondent
successfully put forth an affirmative defense, it must still fail because
McKinsey was provoked into committing the conduct for which he was fired and should,
therefore, be granted leeway for his actions. Secretary’s Post-Hearing Brief
at p. 24.

The
Respondent contends that there was no provocation on the part of Sauerborn
because he was simply trying to get McKinsey to wear a raincoat, an act
consistent with PGSC policy. Respondent’s Post-Hearing Brief at p. 26.
If however, the ALJ finds provocation, the Respondent would argue either, it
was not wrongful under the Mine Act, or to the contrary, McKinsey’s response
was disproportionate to the wrongful conduct.[7] Id. at 27-28.

IV. Findings of Fact
and Conclusions of Law

Section
105(c) of the Mine Act prohibits any discrimination against a miner for
exercising a right established under the Act.[8]
Pursuant to Commission case law, a prima facie case for a violation of
section 105(c) is established if the complainant proves by a preponderance of
the evidence that (1) he was engaged in a protected activity and (2) that the
adverse action was motivated in any part by the protected activity. Sec’y of
Labor or 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, 63 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).

The
Commission will consider the following factors in determining whether the
complainant has established a causal connection between the protected activity
and the adverse action: (1) knowledge of the protected activity; (2) hostility
or animus towards the protected activity; (3) coincidence in time between the
protected activity and the adverse action; and (4) disparate treatment. Sec’y
of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-17
(Nov. 1981) rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).

It
is rare for a section 105(c) case to be proven solely on direct evidence.
Rather, it is more typical for such a case to be made by relying on indirect or
circumstantial evidence. Therefore, it is of no surprise that the Commission
has held that “an operator’s knowledge of the miner’s protected activity is
probably the single most important aspect of a circumstantial case.” Sec’y
of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.
1999)(quoting Chacon, 3 FMSHRC at 2510).

Once
a prima facie case is established, the mine operator is given an
opportunity to rebut by showing that either there was no protected activity or
the adverse action was not motivated in any way by the protected activity. Robinette,
3 FMSHRC at 818 n. 20. If the operator is unable to successfully rebut,
it may still establish an affirmative defense by proving that the adverse
action was motivated by unprotected activity, and it would have taken the
action based solely on the unprotected activity. Id. at 817; Pasula,
2 FMSHRC at 2799-2800.

Protected
Activities

In
the instant matter, the record clearly establishes that McKinsey engaged in
protected activity, thus satisfying the first element of a prima facie
case under section 105(c). This Court accepts as true McKinsey’s testimony at
hearing that he not only voiced complaints with his supervisor Sauerborn, but
also that he filed a formal hazard complaint with MSHA on November 25, 2013.
(Tr. 35-37, Tr. 77-78). As part of his supervisory position, McKinsey was
required to fill out and review safety equipment that was used in the company’s
day-to-day activities. (Tr. 32-34). There were also occasions where McKinsey
made specific safety complaints to Sauerborn, including an issue with the highwalls
and an incident where individuals were caught hunting on company property. (Tr.
35-36). However, McKinsey testified that Sauerborn routinely deflected his
safety complaints. (Tr. 36). Consequently, McKinsey decided to file a hazard
complaint directly with MSHA on November 25, 2013. (Tr. 77). Both the internal
safety complaints made on equipment check sheets and directly to Sauerborn, as
well as the formal hazard complaint filed with MSHA qualify as protected
activity pursuant to section 105(c). 30 U.S.C. § 815(c); see e.g. Sec’y of
Labor on Behalf of Munson v. Eastern Assoc. Coal Corp., 23 FMSHRC 654, 662
(June 2001); Descutner v. Newmont USA, 34 FMSHRC 2838 (Oct. 2012).

Adverse
Action Motivated by Protected Activity

The
record further establishes that the second element of the prima facie
case has also been satisfied, as McKinsey was terminated by Sauerborn -- the
clearest form of adverse action under the Act. See Driessen v. Nevada
Goldfields Inc., 20 FMSHRC 324, 329 (Apr. 1998). The Secretary has
provided sufficient circumstantial evidence to support a finding that McKinsey
was terminated at least in part for his protected activity and/or PGSC’s belief
that he had engaged in protected activity. McKinsey also suffered less severe
forms of adverse action including a demotion, a reduction in hours, and an
increase in e-mails that highlighted his allegedly poor work performance. (Tr. 49-53,
55, 388, 390, 393, 400, 423).

a.      Knowledge

At
hearing, Respondent went to great lengths to show that Sauerborn had no direct
proof or actual knowledge that McKinsey was the individual who had made
anonymous safety complaints to MSHA. (Tr. 374). However, Commission case law
does not require that an operator have positive certainty that a miner had engaged
in protected activity. It is enough for the Secretary to establish that an
operator suspected a discriminatee had made safety complaints. See Elias
Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1480 (Aug. 1992)(finding
“discrimination based upon a suspicion or belief that a miner has engaged in a
protected activity, even though, in fact, he has not, is proscribed by section
105(c)(1)”).

In
this case, there is circumstantial evidence that Sauerborn suspected McKinsey
of making safety complaints. At the time the safety complaints were made, there
were only a handful of employees working at the Great Pit mine. (Tr. 330).
McKinsey was a recent hire. (Tr. 25, 336). McKinsey’s awkward attempts at
denying that he was the whistleblower would have been transparently inculpatory
to even the most obtuse operator, much less an individual of Sauerborn’s
intelligence and perception. It would not have taken a Sherlockian process of
elimination for Sauerborn to have settled upon McKinsey as a prime suspect. The
testimony of the Secretary’s witnesses, Inspector Roger Ouellette and Special
Investigator Michael LaRue, further supports a finding that Sauerborn, despite
his assertion to the contrary, believed McKinsey to be the anonymous
whistleblower. Specifically, Ouellette testified that when he and Sauerborn
were discussing who could have potentially called in the MSHA complaint,
Sauerborn stated that it could only have been two employees – either McKinsey
or Josh Lane. (Tr. 148-49, 156, 165). Similarly, LaRue testified that Sauerborn
was reluctant to answer the question of whether or not he knew who reported the
violations to the extent that LaRue had to ask him three different times. (Tr.
180-83, Tr. 188-89; GX 16, GX 17, GX 18).

Having
heard and considered the testimony of Respondent’s witnesses, Dina Davis and Alton
Moses, it is highly unlikely that Sauerborn would have suspected either as
being the anonymous source. The same would go, of course, for Sauerborn’s
daughter. Furthermore, Sauerborn’s letter to McKinsey, dated December 7, 2013,
when he stated “an unknown person called MSHA with five allegations of wrong
doing . . . Most of the allegations were topics you and I discussed and had
disagreements . . . I would like you to tell me what you have learned from this
incident” appears as a non-subtle accusation by the operator that McKinsey was
the anonymous source. (Tr. 48-49).

b.      Hostility

Additionally,
this Court finds McKinsey credibly testified that Sauerborn’s attitude changed
towards him after the MSHA complaint was filed. (Tr. 38-41, 96). Following his
participation in a protected activity, Sauerborn began treating McKinsey
differently by singling him out and belittling him. (Tr. 38-41). Sauerborn
began increasingly sending e-mails to McKinsey, listing issues with him, some of
which occurred well before the complaint was filed. (Tr. 41). In one of the
warnings mention supra, issued in a letter dated December 7, 2013,
Sauerborn specifically referenced the MSHA complaint and asked McKinsey what he
had learned from this incident. A second e-mail was sent on December 11, 2013
in conjunction with a handwritten note that was left on McKinsey’s time card,
which stated various work performance issues. (Tr. 49-51). On that same day,
Sauerborn also demoted McKinsey from his supervisory position. (Tr. 52-53, 55).
The third and final e-mail was sent on December 30, 2013. This particular
e-mail addressed a prior incident between McKinsey and Sauerborn that occurred
on December 20 when Sauerborn unsuccessfully attempted to send McKinsey home
early. (Tr. 54). This Court finds that these events, when looked at as a whole,
reflect an obvious increase in hostility towards McKinsey after he filed the
complaint with MSHA on November 25, 2013.

c.       Coincidence in Time

Commission
case law has established that a short proximity of time between the miner’s
protected activity and the adverse action can evidence a discriminatory motive.
See Donovan v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir.
1984). However, the Commission has not set any hard and fast rules for
determining when the time between a protected activity and an adverse action is
indicative of discriminatory motive. Sec’y of Labor on behalf of Baier v.
Durango Gravel, 21 FMSHRC 953, 958 (Sept. 1999); see also Chacon, 3
FMSHRC at 2511 (finding complaints filed anywhere between four days and one and
a half months prior to the adverse action sufficient to establish a coincidence
in time); Pamela Bridge Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC
1361 (2000)(finding that a period of four months between a safety complaint and
termination was sufficient to establish proximity).

The
Secretary and Respondent disagree about whether McKinsey was disciplined prior
to the hazard investigation. The Secretary contends that McKinsey was never
disciplined prior to the safety complaint being filed with MSHA. See Secretary’s
Post-Hearing Brief at pp. 15-17. Respondent asserts there were at least
three prior occasions where Sauerborn reprimanded McKinsey either verbally or
in writing before the complaint was ever filed. See Respondent’s Post-Hearing
Brief at pp. 3-5. The record, however, clearly reflects a temporal
proximity between the time the complaint was filed and the increased discipline
of McKinsey which ultimately resulted in his termination. McKinsey filed the
complaint with MSHA on November 25, 2013. (Tr. 36-37). Shortly thereafter on
December 7, 2013, McKinsey began experiencing a reduction in hours. (Tr. 51). McKinsey
was then demoted on December 11, 2013, and terminated on January 13, 2014, only
46 days after the complaint was filed. (Tr. 51-52, 61). This time frame
easily satisfies the Commission’s requirements for a finding of coincidence in
time.

Thus,
this Court finds sufficient evidence has been presented that McKinsey engaged
in protected activity, that he suffered adverse action, and that there was a
nexus between the two, such that a prima facie case of discrimination
under section 105(c) has been established.[9]
Furthermore, the Respondent has failed to successfully rebut the prima facie
case. Based on the circumstantial evidence presented at hearing, this Court is
not convinced the Respondent was not motivated at least in part by the
protected activity when it took adverse action against McKinsey.

Respondent’s
Affirmative Defense

When
a mine operator is unable to successfully rebut the complainant’s prima
facie case, it may establish an affirmative defense by asserting that the
adverse action was motivated by non-protected activity and that it would have
taken such action against the complainant for that activity alone. Robinette,
3 FMSHRC 803, 817-18. Simply showing that the miner deserved to be
disciplined is not sufficient to satisfy the Respondent’s burden. Pasula,
2 FMSHRC at 2800.

PGSC
contends that it would have terminated McKinsey for unprotected activity which
included his poor work performance, inappropriate behavior, and his act of
insubordination. See Respondent’s Post-Hearing Brief at pp. 20,

23. Additionally, Respondent argues that McKinsey’s refusal to don the raincoat
    when given a direct order to do so by his supervisor was an act of
    insubordination that alone warranted his termination. Id. at 23; see
    also Respondent’s Reply to Post-Hearing Brief at p. 8. When Sauerborn told McKinsey
    to put on a raincoat, he simply said “no” without offering any explanation for
    his refusal. (Tr. 93-94, 425). Furthermore, McKinsey failed to produce any
    evidence of other miners who similarly failed to follow a direct order from a
    supervisor. Respondent contends these facts support a valid business
    justification for terminating McKinsey.

At
the hearing, both parties gave contradictory versions of various events – the
completely differing accounts of the motor vehicle run down episode, which
occurred following the raincoat incident, being the starkest example of such.
However, after a careful review of the total circumstances, I find that
Sauerborn did not attempt to run down McKinsey and that McKinsey did not
attempt to jump on Sauerborn’s motor vehicle. Rather, I find that the most
reasonable and likely explanation of this incident was that Sauerborn
accidentally bumped McKinsey causing the miner to fall onto the hood. Thus, the
episode was ultimately not a factor in reaching the decision within.[10]

When
evaluating an affirmative defense, the ALJ must first analyze the merits of the
employer’s business justification to make a determination as to whether such
justification is merely pretextual in nature. Haro v. Magma Copper Co.,
4 FMSHRC 1935, 1937 (Nov. 1982). If the employer’s justification is not
“plainly incredible or implausible, a finding of pretext is inappropriate.” Id.
at 1938. Pursuant to Pasula, the analysis must focus “on whether a
credible justification figured into motivation and, if it did whether it would
have led to the adverse action apart from the miner’s protected activities . .
. [T]he narrow statutory question is whether the reason was enough to have
legitimately moved that operator to have disciplined the miner.” Chacon,
3 FMSHRC at 2516. Moreover, when analyzing an operator’s business justification
affirmative defense, the judge may not “substitute for the operator’s business
judgment [his or her] views on ‘good’ business practice or on whether a
particular adverse action was ‘just’ or ‘wise.’” Id. at 2516-17. Rather,
the judge must determine whether a credible justification has been offered by
the operator and if that justification “would have led to the adverse action
apart from the miner’s protected activities.” Id.

It
is black letter Commission case law that a judge cannot substitute his own
judgment for that of the operator with regard to what constitutes an
appropriate business practice. Id. at 2516. The Commission has
repeatedly held that it “is enough for the operator to show that it had and was
motivated by legitimate business reasons for taking the action that it did.” Sec’y
of Labor on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1925
(Aug. 2012) (citing Chacon, 3 FMSHRC at 2516-17).

The
Secretary argues that Respondent’s affirmative defense should fail because the
reasons proffered are pretext. A finding of pretext may be established if the
judge concludes that the reasons offered have no basis in fact, the reasons did
not actually motivate the adverse action, or the reasons were insufficient to
justify the adverse action. Turner v. Nat’l Cement Co. of California, 33
FMSHRC 1059, 1073 (May 2011). The Secretary takes the position that allegations
of McKinsey’s poor work performance merit close review for possible pretext as
Sauerborn did not begin to criticize his work until after the complaint was
filed with MSHA. See Secretary’s Post-Hearing Brief at p. 15.

Additionally,
the Secretary contends the Respondent’s argument -- that by directly disobeying
Sauerborn’s order to don a raincoat, McKinsey was insubordinate and that alone
was grounds for termination -- holds no water. Secretary’s Post-Hearing
Brief at p. 21. The Secretary asserts that the applicable rule at Great Pit
is to wear a raincoat when it is raining, not to wear a raincoat when given a direct
order. Id. As such, similarly situated employees who were not wearing a
raincoat should have also been disciplined. Id. Yet, McKinsey was the
only employee told to clock out. Id. The Secretary argues this disparate
treatment of McKinsey is evidence of pretext.

For
the reasons discussed below, this Court finds the Respondent’s affirmative
defense has failed, as it did not present a valid business justification for
terminating the Complainant based on an accumulation of poor work performance
and his act of insubordination.

The
Secretary contends the Respondent’s reasons for terminating McKinsey’s employment
are cumulative in nature. If the ALJ decides the reasons for termination are in
fact cumulative that would mean each individual reason must be a credible basis
for discipline. Pendley v. FMSHRC, 601 F.3d 417 (6th Cir. 2010). In
making such a determination, the judge can look to whether the operator based
its decision on all the reasons listed in the notice of termination as well as
the operator’s testimony. If, however, the judge finds that the reasons given
were viewed by the operator as an independent basis for termination, then the
“falsity or incorrectness of one may not impeach the credibility of the
remaining articulated reasons.” Id. In contrast, when cumulative reasons
are given and the judge finds one to be incredible, it cannot find the other
reasons to be sufficient by themselves to support the adverse action.

The
Respondent contends the reasons for terminating McKinsey are independent and
alternative, as his “failure to follow direct instructions from his supervisor
and then jumping on the hood of Sauerborn’s car would be sufficient to credibly
warrant termination.” See Respondent’s Reply to Post-Hearing Brief at p.
8.

Relying
greatly on the testimony of Sauerborn, this Court finds that the Respondent’s
asserted reasons for terminating McKinsey were cumulative in nature. At
hearing, Sauerborn testified that he fired McKinsey for a “progression of
action and inaction,” basing his decision on McKinsey’s insubordination, the
incident where McKinsey jumped on the hood of his car, and his history of
performance issues and behavioral problems.[11] (Tr. 423-427). Sauerborn
further testified that after his history of performance issues with McKinsey,
he essentially found the January 10 incident to be the figurative “straw that
broke the camel’s back.” (Tr. 501). This implies there had been a series of
events leading up to the climactic event referenced as the final “straw.”
Furthermore, this Court finds the additional reasons listed in the termination
letter given to McKinsey did not play a part in the ultimate decision to
terminate him. Rather, they were merely issues Sauerborn had previously
intended to discuss with McKinsey prior to reaching this decision. (Tr. 429).

Having
made a finding that the reasons for terminating McKinsey were cumulative rather
than independent and alternative, this Court must now determine whether each
independent reason was in a fact a credible basis for discipline.

An
affirmative defense will be found not credible if the complainant is able to
establish that the operator’s proffered reasons have no basis in fact, the
reasons did not actually motivate the adverse action, or the reasons were
insufficient to motivate termination. Nat’l Cement Co. of California, 33
FMSHRC at 1073. However, the Commission has provided ways that an operator can
demonstrate that it would have terminated the alleged discriminatee based on
unprotected activity alone, such as by showing “past discipline consistent with
that meted out to the alleged discriminatee, the miner’s unsatisfactory past
work record, prior warnings to the miner, or personnel rules or practices
forbidding the conduct in question.” Bradley v. Belva Coal Co., 4 FMSHRC
982, 993 (June 1982).

At
hearing, Sauerborn presented evidence that he terminated McKinsey for issues
related to his work performance and insubordination. The record establishes
that McKinsey was hired in July of 2013. (Tr. 25). Sauerborn first began
noticing issues with his job performance the following month in August when
McKinsey was involved in a verbal altercation with a co-worker, Dina Davis.
(Tr. 339). Sauerborn testified that he verbally warned and wrote McKinsey up
for his behavior. However, despite this incident, Sauerborn promoted McKinsey
to a supervisory position sometime in September and testified that he generally
found McKinsey’s work performance to be satisfactory. (Tr. 473, 479). Shortly
after the promotion on September 10, McKinsey was involved in a second
altercation with Davis for which Sauerborn testified Mckinsey received another
verbal warning and write up. (Tr. 475).

During
the time McKinsey was employed at PGSC, the company had a progressive
disciplinary policy in place in order to ensure that all employees were treated
fairly. The policy included a rule that all disciplinary “warnings, second
chances, and any action” taken against an employee needed to be documented.
(Tr. 459, RX 9). Yet, Sauerborn testified that following both incidents between
McKinsey and Davis, he did not document or place any type of record in
McKinsey’s personnel file regarding the alleged warnings. (Tr. 466, 478).
Sauerborn did, however, address the first altercation with Davis that very same
day in a letter. (Tr. 464). In that letter, Davis was given an opportunity to
respond in writing with any comments or thoughts she may have had regarding the
discipline and what occurred between her and McKinsey. No such opportunity was
given to McKinsey.[12] (Tr. 463-64, 473, 475).
According to Sauerborn’s testimony, he simply showed Davis’ response to
McKinsey and considered that to be an appropriate verbal warning and written
warning. (Tr. 471).

The
second incident was handled in a similar fashion. Sauerborn testified that
Davis was given a verbal warning for this altercation and she then drafted a
letter detailing her version of the events. (Tr. 477). Sauerborn gave a copy of
that letter to McKinsey and testified that it too represented both a verbal and
written warning. Id. Sauerborn further testified that during his
conversation, McKinsey was given an opportunity to write his own statement.[13]
(Tr. 348). Sauerborn did not, however, present any evidence corroborating his
testimony that he intended the alleged conversations with McKinsey referencing
Davis’ letters to constitute an actual verbal or written warning. When
considering this lack of evidence combined with the fact that McKinsey was not
afforded the same opportunity to respond as was Davis, and that neither
incident was handled in compliance with PGSC’s disciplinary policy, this Court
does not find that either one constituted a formal warning that would serve to
put McKinsey on notice that future poor work performance could result in more
serious consequences.

Throughout
his testimony, Sauerborn attempted to establish that a written warning was
given to McKinsey by e-mail on September 17 and by text message on November 23.
(Tr. 482, 485). However, this Court finds that the evidence presented was
insufficient to establish that either incident constituted a valid written
warning to McKinsey. Rather, the record reflects that following the second
incident with Davis, McKinsey did not receive any formal warnings or discipline
from Sauerborn regarding his work performance until after he made a safety
complaint on November 25 and MSHA conducted its investigation.

Specifically,
as discussed supra, Sauerborn issued the first formal written
warning to McKinsey by e-mail on December 7, at which time he reduced
McKinsey’s hours for the upcoming Monday. (Tr. 388). This took place a mere
twelve days after McKinsey engaged in protected activity by filing a safety
complaint with MSHA. (Tr. 77, 388). The letter addressed numerous issues that
had allegedly occurred during roughly a month of McKinsey’s work performance at
PGSC. (Tr. 357). As the record reflects, the majority of the incidents --
including acts of insubordination -- took place prior to McKinsey filing the
safety complaint. (Tr. 364, 366-367, 371, 380). Furthermore, Sauerborn did not
issue a warning, suspend, or terminate McKinsey for any of the alleged issues
at the time they occurred. Consequently, McKinsey was again not put on notice
that adverse employment action could potentially be taken against him for any
future acts of poor work performance or insubordination. Therefore, Sauerborn’s
argument that the January 10 incident of insubordination alone was sufficient
to warrant termination fails, as termination would not be consistent with his
treatment (or lack thereof) of McKinsey following his prior bad performance.

This
Court finds that the Respondent failed to establish that it would have
terminated McKinsey for the unprotected activity of January 10 alone. Rather,
the evidence presented establishes that Sauerborn’s animosity and hostility
towards McKinsey for filing the safety complaint played a substantial role in
his decision to take discriminatory adverse action against McKinsey.

Within
limitations, a business owner should have the right to control the work environment
and his or her employees, and this right should not be eviscerated simply
because a safety complaint has been filed. But this right cannot allow the
facts of the present case and the protections afforded a miner under the Act to
be overlooked. Congress intended not only to encourage miners to participate in
the Act’s enforcement but also to protect them from “any possible
discrimination which they might suffer as a result of their participation.” S.
Rep. No. 95-181, 95th Congr., 1st Sess. 36 (1977) reprinted in Senate
Subcommittee on Labor, Committee on Human Res., 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977 at 623. Perhaps
Sauerborn honestly believed that he had been magnanimous in the past with McKinsey,
and that by filing the safety complaint McKinsey showed just how unappreciative
he was of Sauerborn’s efforts. However, pursuant to section 105(c) of the Act,
McKinsey had every right to file the complaint. Unfortunately, it is likely
because of his lenient attitude towards McKinsey that Sauerborn failed to give
any warnings or discipline McKinsey prior to the safety complaint being made.
Given the almost complete lack of prior warnings or discipline in McKinsey’s
work history for poor performance and insubordination, this Court cannot find
the Respondent has successfully established that the cumulative effect of such
could have rendered his unprotected activity on January 10 the fatal “straw.” Sec’y
of Labor on Behalf of Clay Baier v. Durango Gravel, 21 FMSHRC 953, 961
(Sept. 1991).

As
discussed supra, when one of the proffered reasons for terminating an
employee fails and such reasons are cumulative in nature, the ALJ cannot find
the other reasons to be a sufficient basis alone. Respondent argued that it
terminated the Complainant for both his poor work performance and his act of
insubordination. However, this argument fails as pretext as the evidence supports
a finding that the operator was not motivated by a legitimate history of poor
work performance when it reached its decision to terminate the Complainant. Therefore,
based on the foregoing reasons, this Court finds that the Respondent’s
proffered reasons for terminating McKinsey are insufficient, and such action
represents unlawful discrimination under section 105(c) of the Act.

D.   
After-Acquired
Evidence

Having
found that the Respondent failed to establish an affirmative defense, this
Court must now determine whether the remedy afforded McKinsey will be limited
due to after-acquired evidence of wrongdoing. The Supreme Court has held that
an employee’s wrongful conduct would not be an absolute bar to the employer’s
liability, but could potentially limit the employee’s available remedies. McKennon
v. Nashville Banner Publishing Co., 115 S. Ct. 879, 885-86 (1995).
Specifically, the Court concluded that reinstating an employee or granting
front-pay would not be practical when an employer acquires evidence of
wrong-doing that is so severe, it would have warranted termination if the
employer had known. Id. at 886; see e.g. Asarco, Inc., Contestant,
18 FMSHRC 317 (March 1996) (finding that after acquired evidence of an employee
inadvertently taking a pre-shift examination card off company grounds would not
have warranted termination).

There
are also multiple National Labor Relations Board decisions that have applied
the after-acquired evidence principal established in McKennon. Such
decisions not only deny reinstatement but also limit back pay when an employer
learns that the employee in question engaged in wrongful conduct for which it
would have been terminated. See La Film Sch., LLC & Its Branch, La
Recording Sch., LLC & California Fed’n of Teachers & Brandii Grace,
358, NLRB No. 21 (Mar. 2012); see also John Cuneo, Inc. 298 NLRB 856,
861 (June 1990). Moreover, in another NLRB case, C-Town, 281 NLRB 458
(Sept. 1986), the Board reiterated that the conventional remedies afforded an
employee in unlawful discharge cases – reinstatement and backpay – are denied
when the employee has engaged in “serious misconduct which renders them unfit
for future employment with their employer.” However, the Board also noted that
not every impropriety would cause the employee to be deprived the protections
of the Act. Id. Rather, such a denial would only occur in the “flagrant
cases ‘in which the misconduct is violent or of such character as to render the
employees unfit for further service.’” Id. (citing J.W.
Microelectronics Corp., 259 NLRB 327 (1981)).

In
the instant matter, the mine operator learned from a PGSC customer, Calvin
Lynch, during the course of the proceedings that McKinsey had in fact
threatened Sauerborn’s life and had terrified the customer in the process. Lynch
volunteered his time to testify at hearing as to the events that occurred on
December 20, 2013. Prior to the incident, Lynch testified that he had never
even spoken to Sauerborn and had only been a customer of PGSC on three
occasions. (Tr. 302-303). He was completely disinterested in the outcome of the
proceedings and as such, this Court finds Lynch to be a very credible witness
and that his testimony was extremely reliable.

Lynch
testified that he was at the PGSC office that day for the second time purchasing
sand. (Tr. 304). When he arrived, McKinsey was in the office and seemed very
upset as he was yelling and using profanity. (Tr. 306, 309). A female employee
who was also present in the office tried to help calm him down, but was
unsuccessful. (Tr. 307). Lynch described McKinsey as being in a rage -- he
overheard McKinsey say repeatedly “they don’t know me,” “I’m going to knock him
in the head…I will kill him.” (Tr. 307-308, 310). Lynch testified that he was very
scared and could tell the female employee was also terrified based on the
expression on her face. (Tr. 309).

Sauerborn
did not learn of this incident and the threats made by McKinsey until April 25,
2014. (Tr. 311-312, 446). At that time, Sauerborn called Lynch and asked him to
explain what he had seen and heard that day. (Tr. 311-312). After Lynch
informed Sauerborn of the details, Sauerborn began to feel very threatened, to
such an extent that he moved from his home to a new residence. (Tr. 446).

This
Court finds that, despite Respondent’s failure to mount a viable affirmative
defense based upon the Complainant’s non-protected activities discussed supra,
there is an independent non-discriminatory basis for Complainant’s dismissal
grounded in the after-acquired evidence of threats made by Complainant on
December 20 against Sauerborn and the traumatizing effect of such on
Respondent’s customer, Calvin Lynch. These threats made against Sauerborn’s
life, and the traumatizing of a customer, rise to a level that would be
considered not only flagrant but also of such a nature as to render McKinsey
unfit for future employment at PGSC. As a result, McKinsey’s right to backpay
is cut-off as of the date Sauerborn learned of the threats and would have been
justified in terminating McKinsey on April 25, 2014.

V. Penalty     

This
Court finds that Fred McKinsey is entitled to an award of back pay in the
amount of $12,647.25[14] plus interest[15]
from the period of January 13, 2014 until April 25, 2014.[16]
This Court further finds that McKinsey adequately attempted to mitigate his
damages by seeking new employment following his termination. (Tr. 63-65, 73,
99-100). The Secretary’s request for compensatory damages for additional
expenses incurred by McKinsey as a result of his discharge has been considered and
such request is denied.

The
Secretary proposed a civil penalty amount of $20,000 against PGSC for its
violation of section 105(c) arguing the conduct involved both high negligence
and high gravity. When assessing a civil penalty, the ALJ is independently
responsible for determining the amount of the penalty in accordance with the
six criteria set forth in section 110(i) of the Act; 30 U.S.C. § 820(i). See
Performance Coal Co., 2013 WL 4140438 (Aug. 2013) (citing Cantera Green,
22 FMSHRC 616, 620-21 (May 2000)). The six criteria include: the
appropriateness of the penalty to the size of the business of the operator
charged, the operator’s history of previous violations, whether the operator
was negligent, the effect on the operator’s ability to continue in business,
the gravity of the violations, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a
violation. Id.

The
Respondent has never had a previous violation under section 105(c). At the time
the present violation occurred, Respondent’s operation was relatively small
with assets totaling approximately $500,000 and it was comprised of only nine
employees. (Tr. 330-31).

When
applying the negligence criterion, Commission case law has provided that the
ALJ must consider whether “the operator intended to commit the violation of
section 105(c) rather than whether it intended to chill future protected
activities.” Sec’y of Labor on Behalf of Poddy v. Tanglewood Energy, Inc.,
18 FMSHRC 1315, 1319 (Aug. 1996). However, a finding of intentional conduct
does not necessarily lead to a finding of high negligence. Id. To find
high negligence, the ALJ must make a determination that there was “an
aggravated lack of care that is more than ordinary negligence.” Id. at
1320.

This
Court has already determined that the Respondent failed to successfully mount
an affirmative defense as it was unable to prove it would have terminated
McKinsey based on unprotected activity alone. This determination necessitates a
finding that Respondent’s actions in violation of 110(c) were intentional. The
Secretary contends that this in turn should lead to a determination of high
negligence. However, this Court finds that there were mitigating circumstances
present at the time Complainant was terminated and these circumstances preclude
a finding of an aggravated lack of care. Complainant was facially insubordinate
when he refused to put on the raincoat when told to do so by his supervisor.
Under different circumstances, this behavior could have contributed to a
legitimate termination. Furthermore, although Sauerborn’s actions unlawfully
stemmed from filing of the complaint, this Court finds that Sauerborn honestly
believed that McKinsey’s work performance was also worthy of the discipline,
and that his primary motive was not to chill his speech or punish him for
filing the complaint. Rather, Sauerborn had finally decided to stop cutting
McKinsey so many breaks and giving him the benefit of the doubt. In light of
these mitigating circumstances, this Court concludes that the Respondent’s
actions involved a low level of negligence.

When
analyzing the gravity criterion, the ALJ must look to both the seriousness of
the violation and the importance of the standard violated. In implementing
section 105(c), Congress intended to “protect miners against the chilling
effect of employment loss they might suffer as a result of illegal discharge.” Poddy,
18 FMSHRC at 1321. A chilling effect is not, however, presumed for every
violation. Id. To determine whether a chilling effect has occurred, the
Commission must look at both a subjective (testimony as to whether there was a
chilling effect) and an objective (whether the adverse action would reasonably
tend to discourage miners from engaging in protected activity) standard. Id.

This
Court does not find that objective evidence has been presented tending to show
the discharge would discourage miners from engaging in protected activity. As
discussed supra, the Respondent’s actions were partly motivated by his
belief that the Complainant deserved to be disciplined for poor work
performance and insubordination. Furthermore, the working relationship between
the two had become increasingly strained with each passing day. It, therefore,
seems unlikely that Respondent would have retaliated against Complainant but
for the particular circumstances of the case. Furthermore, two witnesses, Davis
and Moses explicitly testified that they did not believe Sauerborn would fire
them for making safety complaints, which indicates they did not feel a chilling
effect. (Tr. 535, 552-553). As such, this Court does not find subjective
evidence of a chilling effect to be present in the instant matter and that the
violation involved low gravity.

The
Respondent did not argue at hearing or in its brief that if the operator was
assessed a civil penalty in the amount of $20,000 it would not be able to
continue in business.

In
a discrimination case, the mine operator is not obligated to reinstate an
employee simply because the Secretary brings a 105(c) action. However, if a
temporary reinstatement order is issued, the operator must comply with such
order as a good faith effort in attempting to achieve rapid compliance after
receiving notice of the violation. In the instant matter, this Court issued an
amended order on June 19, 2014, granting temporary economic reinstatement to
the Complainant during the pendency of these proceedings. To date, this Court
has not been made aware of the operator’s failure to comply with the order.
Therefore, this Court concludes that the Respondent has satisfied the 110(i)
criterion requiring a good faith effort for rapid compliance.

After
applying the 110(i) criteria and reaching the aforementioned conclusions
regarding the Secretary’s request for a civil penalty assessment, this Court
finds that a penalty in the amount of $20,000 is too high and should be reduced
to $5,000. The reduced penalty amount appropriately reflects the negligence and
gravity of the violation as well as the relatively small size of the operator
and its net worth at the time of the violation.

ORDER

It is hereby ORDERED
that:

1.     
The
Respondent PAY Fred McKinsey $12,647.25 in back pay within thirty
(30) days of the date of this decision with interest using the Arkansas-Carbona/Clinchfield
Coal Co. method.

2.     
The
Respondent EXPUNGE Fred McKinsey’s employment record of any negative
reference to the discrimination proceedings and provide a neutral reference
from PGSC.

3.     
 The
Respondent PAY a civil penalty in the amount of $5,000, for its
violation of Section 105(c) of the Act, within thirty (30) days of the date of
this decision.[17]

4.     
The 5/6/2014
Decision and Order temporarily reinstating McKinsey, as amended by the
6/19/2014 Order of economic reinstatement, is hereby DISSOLVED.

/s/ John Kent Lewis

John Kent Lewis

Administrative
Law Judge

Distribution:

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

Matthew R. Korn, Esq., 1320 Main
Street, Suite 750, Columbia, SC 29201

[1]
“Tr.” followed
by a number refers to the appropriate page in the hearing transcript.

[2]
The
abbreviation “GX” refers to government’s exhibit. The abbreviation “RX” refers
to Respondent’s exhibits.

[3] A boneyard is a
place where refuse, especially discarded cars, accumulates or is kept. The
American Heritage dictionary of the English language, 4th
edition, Houghton Mifflin Harcourt Publishing Company, 2009.

[4] The last name
for the PGSC employee Matt was not used at the hearing.

[5] Sauerborn’s
testimony stated that taking a vehicle to the job site before exhausting all
other means of communication was against company policy.

[6] The Facebook posts
in pertinent part stated: “. . . I was fired from a job on 1/13/14 and have
literally no means to support myself and at best it’s nearly impossible to find
a job in my area. Unless it’s with someone that I already know is abusive.
Where can I go to find help? I'm desperate and so ready for this life to be
over.” “…In fact yesterday morning I was fired because the boss man refused to
recognize that I have a condition beyond what he can understand. In fact the
owner of the company regularly picked on me and harassed me.” (RX 4).

[7] This Court need not reach a
decision as to whether McKinsey’s unprotected activity was provoked by the
employer’s wrongful conduct as the Respondent was unsuccessful in establishing
a valid affirmative defense.

[8] Section
105(c)(1) of the Act provides in 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, representative of miners or applicant for employment in coal or other
mine subject to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under or related to this
Act, including a complaint notifying the operator or the operator’s agent, or
the representative of the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine . . .

[9] The Secretary
contends that there is also evidence of disparate treatment against McKinsey
evidenced during the raincoat incident. The Secretary takes the position that
Sauerborn had a markedly different response to McKinsey's failure to don a
raincoat versus that towards other similarly situated employees. (See
Secretary’s Post-Hearing Brief at pp. 11-12). However, this Court agrees
with Respondent that the Secretary failed to present any evidence of other
employees who did not obey a direct order from their supervisor and were not
terminated. (See Respondent’s Post-Hearing Brief at p. 23).

[10]
In attempting to resolve these conflicting narratives, I have proceeded on the
bases that neither party was deliberately committing perjury and that most
litigants tend to perceive themselves as the innocent party and their opponent
as the culprit.

As
a young law student, I was once advised by an old professor that to
successfully practice law I had to study human nature and the best way to do so
was to study Shakespeare. During the hearing – which had more than the usual
drama with both sides breaking down – I was struck by how much McKinsey saw
himself as a kind of Hamlet terribly wronged by his evil step-father King
Claudius (Sauerborn) and how much Sauerborn saw himself as a kind of King Lear
grievously injured by the ingratitude of his child (McKinsey). For the reasons
described within, I did not, however, find either party to be quite as tragic a
figure as they portrayed themselves to be. Given the storm scene when the motor
vehicle episode took place, I could go on with the analogy of Lear on the
Heath.

[11] As discussed supra,
no credible evidence was submitted regarding the car incident, so this Court
did not consider it in reaching this decision.

[12] Sauerborn
testified that he did not give McKinsey a written invitation to explain his
perspective on the incident with Davis because he did so verbally. (Tr. 466,
471). However, Sauerborn failed to document the warning in either his
employment records or McKinsey’s personnel file. (Tr. 466, 473, 478, 479).
Without any evidence corroborating Sauerborn’s testimony, this Court cannot
find Sauerborn’s testimony that he verbally gave McKinsey a chance to respond
and give his perspective on the incident credible.

[13] For the same
reasons discussed supra, this Court does not find Sauerborn’s testimony
regarding the verbal warning and McKinsey’s opportunity to respond to be
credible. Per his testimony, nothing was documented that would indicate whether
such events really transpired. (Tr. 477).

[14] The backpay
award calculation was based on McKinsey’s regular rate of pay at $17.75 per
hour for his 40 hours of work per week, plus five hours of overtime pay at
$26.63 per week. This Court considered the average hours worked by McKinsey
from the start of his employment until the date adverse employment action was
taken against him in response to his protected activity, which occurred on
December 7, 2013.

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

[16] The backpay
period runs from McKinsey’s date of termination until April 25, 2014, the date
the after-acquired evidence surfaced, which justified McKinsey’s termination
from PGSC. In light of the after-acquired evidence, the Secretary’s request for
front pay is denied as is the request for two hours of overtime pay from May 6,
2014, until the date of judgment.

[17] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390