Secretary of Labor obo Jason Hargis v. Vulcan Construction Materials, LLC and Jason Hargis v. Vulcan Construction Materials, LLC

Read the official release (fmshrc.gov)

Plain-English summary

Jason Hargis reported a back injury after handling crusher liner plates, was placed on light duty, and was terminated about a month later. The Commission affirmed that Vulcan violated the injury-reporting rule because Hargis could not perform all his duties and management knew his work had been restricted. It held that the ALJ erred by finding no motivational nexus between Hargis's protected medical requests and his termination. Even so, it affirmed dismissal of the discrimination complaint because Vulcan proved it would have fired Hargis under progressive discipline for repeated failures to clean and grease his work area. The Commission also held that temporary reinstatement could not end immediately when the ALJ issued a nonfinal merits decision. It vacated that part of the ruling and held that reinstatement ended 30 days after the Commission's appellate decision.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.2(e) and 50.20(a); 30 U.S.C. §§ 815(c)(2) and 823(d)(1)
• Outcome: The reporting violation and discrimination dismissal were affirmed, while immediate termination of temporary reinstatement was vacated.
• Key point: Light duty can make an injury reportable, and temporary reinstatement continues until the discrimination case reaches a final order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710sip

SECRETARY
OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA), :

on behalf of JASON HARGIS :

:

v. : Docket No.
SE 2021-0163

:

VULCAN
CONSTRUCTION : Docket
No. SE 2022-0001

MATERIALS, LLC :

: Docket No.
SE 2022-0013

:

JASON HARGIS :

:

v. :

:

VULCAN
CONSTRUCTION :

MATERIALS, LLC :

BEFORE:
Jordan, Chair; Althen, Rajkovich, Baker, and Marvit,
Commissioners

DECISION

BY:
Jordan, Chair; Rajkovich, Baker, and Marvit,
Commissioners

These proceedings arise under the
Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq., 815(c)(2) (2018)
(“Mine Act” or “Act”). They involve three cross-petitions for discretionary review
by the Secretary of Labor (“Secretary”), Vulcan Construction Materials, LLC
(“Vulcan” or “the operator”), and a miner, Jason Hargis (“Complainant” or
“Hargis”).

The proceedings originated from a back injury reported by Hargis on Monday,
April 12, 2021. He first experienced the injury while working at the mine on
Saturday, April 10, 2021. He was terminated on May 12, 2021.

Following
his termination, Hargis filed a timely complaint of discrimination under
section 105(c) of the Act with the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) on June 7, 2021. He alleged that his report of his
injury was protected activity and that his firing one month later constituted
unlawful retaliation. The Secretary found that Hargis’ complaint was not
frivolously brought. Upon agreement of the parties, the Administrative Law
Judge entered an order temporarily economically reinstating
Hargis, effective July 27, 2021.

On October 1,
2021, the Secretary filed her own discrimination
complaint under section 105(c)(2)[1] of
the Act. On December 13, 2021, she also filed a civil penalty petition alleging
that the operator had failed to report Hargis’ occupational injury to MSHA, as
required by 30 C.F.R. § 50.20(a).[2]

After
a hearing on the merits, the Judge issued a decision on December 1, 2022.

44 FMSHRC 733 (Dec. 2022)
(ALJ). The Judge affirmed the Secretary’s civil penalty case and held that the
operator failed to report an occupational injury. The Judge dismissed the
Secretary’s discrimination complaint, and immediately dissolved his previously
issued order, which had temporarily reinstated Hargis. All three parties filed petitions
seeking discretionary review of the Judge’s decision, which the Commission
granted.

Hargis contends
that the Judge erred in dismissing the merits of his discrimination complaint. Vulcan
claims that the Judge erred in finding that mine management violated section
50.20(a)’s injury reporting requirement. The Secretary argues that the Judge
erred in terminating Hargis’ temporary reinstatement on the same day the Judge
issued his merits decision, since his merits decision was not yet a “final
order” under section 113(d)(1)
of the Act.
See 30 U.S.C. § 823(d)(1). The Secretary does not seek review on the
merits of the Judge’s finding regarding discrimination.

For the reasons
stated below, we affirm the finding that the operator violated 30 C.F.R. §
50.20(a) by failing
to report an occupational injury.

We also affirm the
Judge’s holding that the operator’s explanation for terminating Hargis was not
pretextual, but find that the Judge erred in applying the Pasula-Robinette
test.

Finally, we hold
that the Judge erred in dissolving his temporary reinstatement order
immediately with his discrimination decision. We conclude, under sections 105(c)(2)[3]
and 113(d)(1)[4]
of the Act, that
temporary reinstatement expires 30 days after the Commission issues an
appellate decision – or alternatively, if the Commission declines to grant
review, we hold that temporary reinstatement expires 40 days after a judge
issues his or her decision.

Accordingly, we affirm
in part and vacate in part the Judge’s decision.

I.

Factual and
Procedural Background

A. Factual Background

1. Hargis’
   Work and Disciplinary History at the Mine

Vulcan
operates the Wilson Quarry, a rock crushing facility in Tennessee. Tr. 502. Hargis was a miner at the Wilson Quarry
from August 2018 until he was discharged on May 12, 2021. Tr. 11-12. He mainly worked as a plant
operator during the time relevant to this proceeding. Tr. 305.

As plant
operator, Hargis had a variety of duties, including running the plant’s
crushing machinery to break and size rocks mined at the quarry, Tr. 306; cleaning, e.g., shoveling,
and maintaining an area
assigned to him, Tr. 348; and lubricating or greasing the bearings of the
crushing machine daily. Tr. 415.

While working
at the mine, Hargis had been disciplined pursuant to
the company’s progressive discipline policy under which employees were verbally warned,
then given a written
warning, followed by a second written warning and three-day suspension. Sec. Ex. 7, 8. The second written warning
provides that the employee may be terminated for any subsequent violation of
company policies. Sec. Ex. 8.

Hargis’
disciplinary issues were not
related to his duty to run the
plant’s crushing machinery. Rather, they stemmed generally from his failures to completely clean
and grease areas and
equipment for which he was responsible before leaving work. Specifically, Hargis
received his first written warning from his
direct supervisor on December 4, 2020, for a failure to clean his area. Tr.

347. Hargis admitted that he had been counseled about the need to clean more
     thoroughly, but that he disagreed, and that he did not change
     what he was doing in response to his supervisor’s input. Tr. 408-09. Hargis received his second
     written warning from another supervisor on February 8, 2021, for leaving work
     before the end of his February 1 shift without completing his cleaning.

348. Management
     at the Mine

Hargis worked under two direct supervisors, Kyle
Parr and Chris Williams, who replaced Parr following Parr’s resignation. The
plant also employed a more senior manager, Anthony Humes, who managed the two
plant supervisors.

Hargis
testified generally that management was dismissive of miners’ concerns
regarding their treatment, and that he felt “targeted.” Tr. 367. He also
criticized Parr specifically, claiming that Parr had “no clue” about plant
operations. Tr. 368. Other miner witnesses similarly criticized Parr’s
management style and testified that Parr seemed to target Hargis and others. See,
e.g., Tr. 59, 65 (testimony by Vulcan’s lead man Andrew Tucker), see
also Tr. 207 (testimony of equipment operator Cody Dycus), Tr. 241-42 (testimony of hourly employee
Shane Stultz).

Parr resigned in January 2021,
and Humes assumed Parr’s duties. Tr. 700. Accordingly, Humes (rather than Parr)
was the plant manager at the time of the events raised in Hargis’ complaint. While
some miner witnesses took issue with Humes’ management style, their testimony
indicates that Humes did not uniquely target Hargis. See Tr. 85-86,
111-14 (Tucker’s testimony that Humes “yelled at everybody” but did not target
Hargis); Tr. 258 (Schultz’s testimony that Humes “had it out” for both Schultz
and Hargis).

Williams was
brought to the Wilson Quarry to
replace Parr and assumed supervisory responsibility over the plant. Witnesses
testified that Vulcan was generally a safety-conscious operator. See Tr. 79, 397-98.

3. Hargis’
   Injury, Request to See a Physician, and Termination

On Saturday,
April 10, 2021, Hargis injured his back while working at the mine.

Tr. 46-48, 314-16. He was
working with his supervisor, Williams, and the lead man, Tucker, at the time. All
three miners were working to install liner plates at the mine’s rock crusher. Tucker
was working inside the crusher with Williams working outside the crusher to
attach plates from the outside. Hargis also worked on the outside of the
crusher, handing the plates into the crusher to Tucker. Each plate weighed
approximately 35 to 50 pounds. Tr. 314-15. Hargis had to reach, lean, and twist
to pick up the plates and pass them into the crusher for installation. Tr. 315-16.

While handing
the plates to Tucker, Hargis experienced pain and discomfort in his lower back,
which he conveyed to Williams. Hargis mentioned it in passing to Tucker and
Williams on April 10, but he felt that his back might get better if he rested
over the remaining portion of the weekend before officially reporting the
incident. Tr. 314-16, 415. During the weekend, Hargis used heat and ice to try
to alleviate the pain, but it grew worse. Tr. 314. By Monday, April 12, 2021,
his lower back condition had not improved, so he reported this to Williams and
requested to see a physician.[5]
Tr. 316. Williams responded that he would turn in Hargis’s request, which
Hargis understood to mean that Williams would inform other mine management. Tr.
316-17.

Hargis was
placed on light duty through April 14, 2021, when he took medical leave for an
unrelated cardiac procedure. Tr. 317-20. Hargis would operate the plant crusher
but would not perform any of his other job duties, which included cleaning his
work area of rock debris, and greasing equipment. Tr. 371.

On April 14, Hargis
exchanged text messages with the safety manager Brandon Clemmons who confirmed
Hargis’ painful condition and his modified duty of only running the plant
crusher. Sec. Ex. 9. Hargis testified that his injury made even running the
plant crusher uncomfortable while other tasks, such as cleaning and greasing,
were “very painful” to “unbearable.” Tr. 323.

Hargis was
thereafter off work for a cardiac procedure from April 15 through May 3, 2021. Hargis
testified that when he returned to work at the mine on May 4, he was still
experiencing back pain from the April 10 injury. Tr. 328. He testified that he
reported the continued injury and pain to supervisors Williams and Humes. Tr.

329. Hargis further testified that around May 8, 2021, he told safety manager
     Clemmons that his back still hurt from the April injury, but Clemmons did not
     respond. Tr. 384. Clemmons denied that this interaction ever occurred. Tr. 748.

Williams and
Humes testified that after his return on May 10-11, 2021, Hargis was still not
completing his assigned duties as required. Specifically, Humes testified that
Hargis was not cleaning his zone or greasing his equipment fully and was
leaving hazards behind for the next morning. Tr. 612-13. This was discussed in
both staff safety meetings with management and with Hargis one-on-one. Tr.
612-13.

Humes
testified that Williams recommended terminating Hargis’ employment for failing
to clean his area and grease his equipment as well as for leaving work without
telling anyone these tasks had not been completed. Humes then called Ellis at
HR and recommended that Hargis be terminated. Tr. 631. As set forth above, the
operator had previously warned and disciplined Hargis about such failures. This
discipline included a three-day suspension and notice that an additional
failure could or would result in termination of employment.

The next day,
on May 12, 2021, Hargis told Williams that he could not deal with his back
issues anymore, and again requested to see a doctor. Mine management witnesses
testified that prior to Hargis’ request to see a physician on May 12, they had
already decided to terminate Hargis based upon his prior work writeups as well
as his most recent poor job performance. Tr. 508-09, 520, 612-13, 630-31.

Later that day,
management provided Hargis a panel of physicians for treatment under the
Tennessee Workers’ Compensation Act, in addition to terminating his employment.
Ex. 6, Tr. 338. Hargis was advised that he was being terminated because of his
two prior writeups and the most current job performance, and that the decision
to terminate him bore no relationship to his request for seeing a physician. Tr.
631; 781-83. Ellis had law enforcement present during the termination based on
misleading information from Williams that Hargis “normally had a gun on him.” 44
FMSHRC at 746 (ALJ).

B. The
Judge’s Decision

The Judge held a hearing from April 12 to April 14, 2022. The
hearing covered both the discrimination complaint and the alleged reporting
violation. On December 1, 2022, the Judge affirmed the Secretary’s civil penalty case and held
that Hargis had experienced an occupational injury that the operator failed to
report in violation of section 50.20(a). The Judge dismissed the Secretary’s
discrimination complaint. The Judge then immediately
dissolved his previously issued order temporarily reinstating Hargis.[6]

II.

Disposition

A. The
Judge properly found that the operator violated section 50.20(a) by failing to
report Hargis’ occupational injury.

Under section 50.20(a), operators “shall report each accident,
occupational injury, or occupational
illness at the mine.” 30 C.F.R. §
50.20(a) (2022). The Secretary has defined an “occupational injury” as
“any injury to a miner which occurs at a mine for which medical
treatment is administered, or which results in death or loss of consciousness, inability to perform
all job duties on any day after an injury, temporary assignment to other
duties, or transfer to another job.” 30
C.F.R. § 50.2(e) (2022).

The specific
issue here is whether Hargis’ injury resulted in an “inability to perform all
job duties.” 30 C.F.R. § 50.2(e)(3). After reviewing the Judge’s decision, we
conclude that substantial evidence supports the Judge’s finding that Hargis’
pain, along with Vulcan limiting his essential duties, Tr. 628, showed that Hargis
was unable to perform all his job duties due to his injury. This made it a
reportable “occupational injury” under 30 C.F.R. § 50.2(e).

Specifically, the ALJ relied on Hargis’
testimony at hearing that his lower back pain was “extraordinary” and “unbearable.”
Tr. 323, 379. Hargis made it very clear to Williams on April 12 that his back pain
was worsening, and that he could not perform his normal tasks at “a hundred
percent.” Tr. 381-82; see also Sec. Ex. 9 (text messages with safety
director Clemmons confirming that Hargis was “taking it easy” due to his lower
back injury). The Judge also credited Hargis’ testimony that he asked Williams to
see a doctor on April 12. 44 FMSHRC at 747. Furthermore, the Judge credited
Hargis’ co-worker Clint Evans’ testimony that Hargis had let the crew know when
he needed help cleaning, explaining that Hargis “would clean what he could” but
that “his back would limit him.” Tr. 177–78. Humes also testified that, because
of his pain, Hargis was placed on “light duty,” i.e., he would not have
to clean the passageways or grease the crusher. Tr. 627-29. This is substantial
evidence that supports the ALJ’s conclusion that the miner suffered a
reportable occupational injury pursuant to 30 C.F.R. § 50.2(e).[7]

Vulcan argues
that even though Hargis’ job was “painful” to do, he was not “unable” to do it,
and therefore the reporting requirement was not triggered.

Further,
Vulcan argues that even if Hargis were unable to perform all of his job duties,
the operator was unaware of that fact. As stated above, the record establishes
that mine management knew about Hargis’ pain, and that they had placed him on
modified light duty as a result. Tr. 381–82, 627-29 (Humes’ testimony); Sec.
Ex. 9. The ALJ credited this evidence over the testimony from Ellis that
placing Hargis on light duty was out of “kindness” rather than necessity. See
Tr. 538-39. When the Commission reviews a Judge’s factual findings,
“credibility determinations are entitled to great weight and may not be
overturned lightly.” Pappas v. CalPortland, 40 FMSHRC 664, 671 (May
2018) (citations omitted).

We hold that substantial evidence supports
the Judge’s determination that Hargis suffered an occupational injury, and that
the operator had the requisite knowledge to support a finding of a violation of
section 50.20(a).

• The
  Judge erred in finding no nexus of discrimination, but the operator
  affirmatively defended the termination.

Section 105(c) of the Act prohibits
discriminating against miners for exercising any protected right under the Act.
A miner alleging discrimination under the Act establishes a prima facie
case of prohibited discrimination by proving that he engaged in protected
activity and that the adverse action complained of was motivated in any part by
that activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y
of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817-18 (Apr. 1981) (the “Pasula-Robinette” analysis).

Under Pasula-Robinette, the
operator may rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part motivated by
protected activity. Robinette, 3 FMSHRC at 818 n.20. If the operator
cannot rebut the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the miner’s unprotected
activity alone. Id. at 817-18; Pasula, 2 FMSHRC at 2799; see
also Con-Ag, Inc. v. Sec’y of Lab., 897 F.3d 693, 700 (6th Cir.
2018) (“Discrimination claims under the Act are analyzed using the Pasula–Robinette
framework.”); Boich v. Fed. Mine Safety & Health Rev. Comm'n, 719
F.2d 194 (6th Cir. 1983) (same).[8]

Because direct evidence of discriminatory
intent is rare, we look to common circumstantial indicia of discriminatory
intent: (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 of the
complainant, with knowledge of the protected activity often being the most
important factor. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2510 (1981), rev’d on other grounds sub nom. Donovan
ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).

1. The Judge erred in
   finding that there was no nexus between Hargis’ protected activity and his
   termination.

We hold that the Judge erred in finding
that there was insufficient evidence—either direct or indirect—to support a
nexus between the protected activity on April 12 and May 12 and the adverse
employment action on May 12.

a. The Judge erred in
finding that no inference of discrimination may be found based on management
knowledge of protected activity.

Hargis injured himself at work on
Saturday, April 10, 2021, and contemporaneously mentioned the injury in passing
to his supervisor, Chris Williams. The Judge found that over the weekend, the
pain from the injury became worse, and on Monday, April 12, Hargis made a
formal request to Williams to see a physician for the injury. 44 FMSHRC at 743,
747; see also Tr. 316. The supervisor responded that he would get the
request “turned in” to upper management and placed Hargis on light duty. Id.
at 743-744.

Despite the Judge’s finding that
management was aware of Hargis’s injury on April 10 and his requests to see a
doctor on April 12 and May 12, the Judge focused his analysis almost entirely
on the May 12 request, finding that “Complainant’s request for medical care on
May 12 certainly had no effect on a termination decision that was well underway
before the decisionmakers were aware of it.” Id. at 759. The Judge based
this holding on the fact that Williams appears not to have told upper
management about Hargis’s April 12 request for a doctor, and it was upper
management that made the decision to terminate Hargis. While Ellis, the mine
manager, might have been unaware of Hargis’s request to see a doctor, the
record clearly shows that Ellis’s decision to terminate Hargis began with
Williams and worked its way up to Ellis. According to the Judge’s findings,
“Mr. Humes said Mr. Williams recommended Complainant be terminated . . . ” and
“Mr. Humes called Mr. Ellis and explained the issue to him . . . [h]e
recommended Complainant be terminated.” Id. at 745. Stated differently,
Hargis’s supervisor, Williams, knew of Hargis’s request for a doctor; Williams
recommended to Humes that Hargis be fired; and Humes recommended to Ellis that
Hargis be fired.

The Commission has acknowledged that an
operator may not launder knowledge and animus through a neutral superior where
superior had no knowledge of employee’s protected activity, but ‘acted in
direct response to another supervisor’s recommendation to dismiss an employee. Turner
v. Nat’l Cement Co. of California, 33 FMSHRC 1059, 1068 (May 2011), citing Boston
Mutual Life Ins. Co. v. NLRB, 692 F.2d 169, 171 (1st Cir. 1982); see
also Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984) (“An
operator may not escape responsibility by pleading ignorance due to the
division of company personnel functions.”). Here, there is no question that
Williams knew of Hargis’s protected activity and that he was involved in the
decision to fire Hargis. Therefore, his knowledge should be imputed to the
ultimate decisionmakers.

b. The Judge erred in
finding that there was no hostility or animus toward the protected activity.

The Judge found that Hargis properly
reported his injury to his supervisor and requested to see a doctor due to the
pain he was experiencing from the April 10th injury. Despite the supervisor’s
response that he would inform upper management, the supervisor appears to have
taken no actions to ensure that Hargis be provided a doctor.

The Judge erred in finding that ignoring
or evincing “indifference” towards a miner’s injury and protected activity of
requesting medical care did not constitute animus toward the protected
activity. It is the very definition of animus towards a protected activity when
a miner makes a health or safety complaint or engages in protected activity
that requires attention, and the operator chooses to ignore it and do nothing. The
Judge focused his entire analysis of animus on whether management treated
Hargis unkindly following his protected activity.[9]
While hostility directed towards a miner may indicate animus, the Commission
has clearly stated that the proper inquiry should focus on animus “specifically
directed towards the alleged discriminatee’s protected activity.” Sec’y of
Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC at 2511.[10]

Animus towards a protected activity does
not require that the operator display anger or unkindness towards the miner. If
a miner makes a complaint about an unsafe condition at the mine and the
supervisor responds with a smile and shrug but takes no action to investigate
or correct the condition, the supervisor has displayed animus toward the
protected activity. Here, Williams’s refusal to provide Hargis with medical
care, whether through indifference or ignoring the Complainant’s exercise of
his rights as a miner, constitutes a form of animus toward the protected
activity. Just as with knowledge, the Commission has held that the animus of a
supervisor who participates in the termination decision in any way can be
imputed to the operator. See Turner, 33 FMSHRC at 1068; Metric, 6
FMSHRC at 230 n.4. Therefore, the Judge erred in holding that there was no
evidence of animus because the operator ignored and displayed indifference
toward Complainant’s request for medical care.

c. The Judge erred in
finding that the coincidence in time did not indicate discrimination occurred.

The Judge’s decision focuses almost
entirely on Hargis’s May 12 request to see a doctor, finding that since the
decision to fire Hargis had already been made by then, “the coincidence in time
turns out to be just that—a coincidence.” 44 FMSHRC at 761. However, the Judge
engaged in no analysis as to whether Hargis’s April 12th request for a doctor
was sufficiently close in time to serve as one of the circumstantial indicia of
discriminatory intent.

“We ‘appl[y] no hard and fast criteria in
determining coincidence in time between protected activity and subsequent
adverse action when assessing an illegal motive. Surrounding factors and
circumstances may influence the effect to be given to such coincidence in time.’”
Sec’y of Labor on behalf of Hyles v. All Am.
Asphalt, 21 FMSHRC 119, 132 (Feb. 1999), quoting, Hicks v. Cobra Mining,
Inc., 13 FMSHRC 523, 531 (Apr. 1991). As a Commission judge has
pointed out that:

Improper motive
has been found in cases with varying periods between the protected activity and
the adverse action, ranging from a few hours to a few months. See, e.g., Sec’y
of Labor on behalf of McGill v. U.S. Steel Mining Co., 23 FMSHRC 981,
986-87 (holding that the ALJ was correct in inferring a discriminatory motive
from adverse action taken less than two hours after complainant’s safety
complaints); Sec’y of Labor on behalf of Houston v. Highland Mining Co.,
35 FMSHRC 1081, 1093 (Apr. 2013) (ALJ) (holding that a five-day gap between the
adverse action and protected activity constituted circumstantial evidence of a
nexus); Baier, 21 FMSHRC at 959 n.7 (holding that
two weeks between complainant’s discussion with MSHA inspector and
discharge was sufficiently coincidental in time to support a finding of
discriminatory motive); see also CAM Mining, LLC, 31 FMSHRC at 1090
(holding that three weeks between the protected activity and adverse
action was sufficient to find discriminatory motive); Pero v. Cyprus
Plateau Mining Corp., 22 FMSHRC 1361, 1365 (Dec. 2000) (holding that an
adverse employment action four months after a protected activity
constituted close temporal proximity where the operator had knowledge of the
protected activity); Hyles, 21 FMSHRC at 42, 46-47 (finding
temporal proximity despite 15-month gap between miners’ contact with MSHA
and the failure to recall miners from layoff where only a month had
passed from MSHA’s issuance of penalty as a result of the miners’ notification
of the violations and given evidence of intervening acts of hostility, animus,
and disparate treatment).

Sec’y
of Labor on behalf of Vega v. Syar Indus., Inc., 40 FMSHRC 55,
64 (Jan. 2018) (ALJ).

In the instant case, Hargis was fired on
May 12, one month after he first engaged in protected activity. Though one
month is sufficient to support an inference of discrimination, the time period
may even be considered shorter because Hargis was on medical leave during much
of that month. Following the April 12th request to see a doctor, Hargis was on
light duty from April 12-14, and then on unrelated medical leave from April
14-May 4. Hargis was fired approximately one week after he returned on May 4. Therefore,
he was only on working status for approximately ten days from when he engaged
in protected activity to when he was fired. The Judge’s finding that the May
12th request for medical care was too late to inform the decision to fire
Hargis, erred in failing to analyze whether the April 12th request was close
enough in time to infer discriminatory intent.

d. Substantial
evidence supports the Judge’s finding that the evidence in the record does not
support a finding of disparate treatment.

Substantial evidence supports the Judge’s
determination that the only evidence
of any potential disparate treatment had occurred before Hargis’
April 10th injury and his exercise of protected activity. Id. at 755-58; Sec’y Ex. 7 (December 4, 2020
written warning to Hargis); Sec’y Ex. 8 (February 8, 2021 second written warning
and three-day suspension). However, “[t]he Commission has previously held that
evidence
of disparate treatment is not necessary to prove
a prima facie claim of discrimination when the other indicia
of discriminatory intent are present.” Sec’y of Labor on behalf of Harrison
v. Consolidation Coal Co., 37 FMSHRC 1497, 1511 (July 2015) (ALJ), citing
Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-13 (Nov. 1981).

Hargis argued that his February 8, 2021,
receipt of a second written warning under Vulcan’s progressive discipline
policy (for leaving work before the end of a shift on February 1 with four
coworkers) constituted disparate treatment by management, particularly on the
part of Parr. 44 FMSHRC at 755-56. In determining that this evidence did not
demonstrate disparate treatment, the Judge noted that another miner, Clint
Evans, also left early and was told by Williams that he would incur discipline
for doing so. Id. at 756. The Judge also considered that, on another
occasion, management gave a second written warning and three-day suspension to
Caleb Walker due to a similar disciplinary history. See Tr. at 548, 549;
Vulcan Ex. L at 36. Beyond the fact that Hargis was treated consistently with
other miners, the Judge emphasized how this incident (and every action Hargis
alleged was part of the campaign to “get rid” of him) predated Hargis’
first exercise of protected activity on April 12, 2021 and therefore could not
have motivated Vulcan’s actions. Substantial evidence supports this
determination.

Despite
the Judge’s finding that there was insufficient evidence to find disparate
treatment, the Judge erred in finding that there was insufficient evidence to
support an inference that Complainant was discriminated against because of his
protected activity. The operator, however, “may affirmatively defend, however,
by proving by a preponderance of all the evidence that, although part of
his motive was unlawful, (1) he was also motivated by the miner’s unprotected
activities, and (2) that he would have taken adverse action
against the miner in any event for the unprotected activities alone.” Sec’y
of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC at
2799-2800.

2. Substantial
   evidence supports the Judge’s finding that Vulcan presented an affirmative
   defense that its termination of Hargis would have been taken based on
   unprotected activity alone.

Having found that the Complainant met his
burden in presenting a prima facie case, the operator may rebut by
showing that the “adverse action was in no part motivated by protected
activity. If the operator cannot rebut the prima facie case in this
manner, it nevertheless may defend affirmatively by proving that it also was
motivated by the miner’s unprotected activity and would have taken the adverse
action for the unprotected activity alone.”[11]
Sec’y of Labor on behalf of Pendley v. Highland Mining Co., 34 FMSHRC
1919, 1920 (Aug. 2012) (citation omitted).

In the instant case, Hargis had received
two written warnings according to the company’s progressive discipline policy
for not cleaning and greasing the areas and equipment for which he was
responsible prior to leaving work. Tr. 347, 408-409. Hargis testified that he
understood the employer’s requirement that he clean his area, but stated that
he did not change the manner in which he cleaned because he disagreed with his
supervisor. Tr. 408-409.

On May 10 and 11, Hargis left work without
cleaning and greasing his area properly, or telling anyone that he had not
cleaned or greased his area. Tr. 630-631, 785. Hargis admitted that he did not
clean or grease his areas on those days, and did not know if anyone else had
done so. Tr. 422-424. Hargis testified that he could not grease his area on
those days because he did not have the proper equipment. Tr. 435. This
explanation does not excuse Hargis for leaving without informing anyone that he
had not cleaned or greased his area. Due to the two previous write-ups, Hargis
was on a last-chance agreement when he left without telling anyone that he did
not clean or grease his area on May 10-11. Tr. 712. The operator has adequately
shown that it followed its progressive discipline policy and would have fired
Hargis for a non-discriminatory reason alone.

• The
  Judge erred in dissolving the temporary reinstatement order,
  prior to it becoming a final order of the Commission.

The Judge abused his discretion when he
dissolved the temporary reinstatement order upon the issuance of his decision
on the merits of the complaint. Temporary reinstatement terminates upon a
“final order on the complaint” (30 U.S.C. § 815(c)(2)) and a Judge’s decision does
not become a final order of the Commission immediately upon issuance.[12]

In Sec’y on
behalf of Bernardyn, 21 FMSHRC 947 (Sep. 1999), the Commission
unanimously reversed a Judge when he attempted to dissolve a temporary
reinstatement order upon the issuance of his decision on the merits of the
complaint. The Commission held that:

. . . when the
judge purportedly dissolved the temporary reinstatement order, the time had not
yet passed for the Commission to review the judge’s decision on the merits of
Bernardyn’s discrimination complaint. Accordingly, the judge’s decision had not
yet become a final Commission decision. 30 U.S.C. § 824(d)(1). Thus, the judge
lacked statutory authority to dissolve the temporary reinstatement order
concurrently with his discrimination decision or at any time before we could
direct review. Since we have granted the Secretary’s petition for review of the
judge’s determination on the merits, the judge’s dismissal of the complaint
will not become a final decision under section 113(d)(1) of the Act until we
review and issue a decision upon that matter.

21
FMSHRC at 949.

Section 105(c)(2) of the Act states, once
it has been determined that an application for temporary reinstatement has not
been frivolously brought, the Commission, “shall order the immediate
reinstatement of the [] miner pending final order on the complaint.” 30 U.S.C.

§
815(c)(2). Section 113(d)(1) of the Act states that “[t]he decision of the
administrative law judge . . . shall become the final decision of the
Commission 40 days after its issuance unless within such period the
Commission has directed that such decision shall be reviewed . . . .” 30 U.S.C.
§ 824(d)(1) (emphasis added). Consistent with these statutory mandates, the
Commission “vacate[d] the judge’s order, and order[ed] the continued temporary
reinstatement of Bernardyn pending a final Commission decision on the
complaint.” Id. at 951. See also Sec’y on behalf of Alvaro Saldivar, 45
FMSHRC 947 (Nov. 2023); Sec’y on behalf of Grant Noe, 22 FMSHRC 705, 706
(June 2000).

In the instant case, the operator argues
that the Commission’s construction of the Act in Secretary of Labor on
behalf of Bernardyn was later rejected by the Sixth and Seventh Circuits in
North Fork Coal Corp., 691 F.3d 735 (6th Cir. 2012), and Vulcan
Constr. Materials, 700 F.3d 297 (7th Cir. 2012). The operator is incorrect,
conflating the provisions of 105(c)(2) and 105(c)(3) of the Act.

In contrast to the instant case, the
actions before the Court in North Fork and Vulcan were filed by
miners on their own behalf pursuant to section 105(c)(3) of the Act, rather
than by the Secretary on the miners’ behalf pursuant to section 105(c)(2).[13]
As noted, section 105(c)(2) provides that temporary reinstatement shall
continue “pending final order on the complaint.” The Sixth and Seventh Circuits
clarified that the statutory basis for temporary reinstatement expires if the
Secretary concludes her investigation and determines that no violation has
occurred, i.e., decides not to file a complaint under section 105(c)(2). North
Fork, 691 F.3d at 743; Vulcan, 700 F.3d at 310 (“the temporary
reinstatement order lasts only as long as the proceedings [are] governed by §
815(c)(2)”). The holdings in North Fork and Vulcan are entirely
consistent with the Commission’s ruling in Bernardyn.

Vulcan now argues that because Hargis, and
not the Secretary, filed the petition seeking review of the Judge’s decision,
this proceeding is more akin to a section 105(c)(3) proceeding. According to
Vulcan, the temporary reinstatement order should be dissolved. This argument
does not account for the Act’s plain requirements; once the Secretary
determines that the Act was violated and files a complaint pursuant to section
105(c)(2), temporary reinstatement is to continue until there is a final order
on that complaint. 30 U.S.C. § 815(c)(2). There is no mechanism under the Act
that transforms a complaint filed pursuant to section 105(c)(2) to a section
105(c)(3) action. Rather, the Act clearly delineates between these two types of
cases. The complaint at issue was filed pursuant to section 105(c)(2). The
Secretary may file a motion to withdraw her section 105(c)(2) complaint if she
determines, during the litigation process, that section 105(c) of the Act was
not violated. See, e.g., PCS Phosphate Co., 33 FMSHRC 5, 6 (Jan. 2011). This
has not happened.

Although the Secretary has not petitioned
for review of the Judge’s decision on the merits, that decision is independent
from her investigation and determination that the operator violated section
105(c)(2) of the Act.[14] Sec’y Rep. Br. at

7. Here,
   the Commission granted review of the Judge’s decision on the merits of the
   Secretary’s section 105(c)(2) complaint.[15]
   Accordingly, the order is not final; temporary reinstatement continues.

We are not persuaded by Vulcan’s argument
that as a matter of due process, the temporary reinstatement must end once the
Judge issues its decision in the 105(c)(3) case. Courts have long held that the
process for temporary reinstatement before the Commission is sufficient, and
that Congress intended employers to bear a proportionately greater burden of
the risk of erroneous temporary reinstatement. See Jim Walter
Res., Inc. v. FMSHRC,
920 F.2d 738, 748 (11th Cir. 1990) (“JWR”), quoting Brock v. Roadway Exp., Inc., 481 U.S. 252,
263 (1987). It
has been well-established that due process is satisfied so long as the
“pre-reinstatement procedures establish a reliable initial check against
mistaken decisions, and complete and expeditious review is available.’” JWR,
920 F.2d at 745-46. Prior to the Secretary petitioning for temporary
reinstatement, it conducted an investigation, wherein the operator had the
opportunity to provide evidence and information concerning the Complainant’s
termination. Following this investigation, once the Secretary determined that a
non-frivolous claim of discrimination had been made, Vulcan had the right to a
hearing on whether the miners’ allegations were frivolous, but chose not to
exercise that right, instead agreeing to economically reinstate the miner.[16]
We reiterate that the process available to operators is sufficient, especially
considering that it is balanced against the strong public interest inherent in
protecting miners who make safety complaints, which persists regardless of the
exercise of the government’s litigation strategies. Temporary reinstatement
plays a central role in the statutory scheme.[17]

In addition to the arguments raised by the
operator, our dissenting colleague raises several additional concerns regarding
due process. While acknowledging that “[t]he constitutional correctness of this
minimal temporary reinstatement process is not in question in this case,” the
dissent nonetheless claim that the Commission’s process falls short of the
general Constitutional requirements. Slip op. at 29.

At the outset, we note that the dissent’s
characterization of the law is not accurate. Certainly, the Supreme Court has
consistently held that to satisfy due process, “some kind of hearing is
required at some time before a person is finally deprived of his property
interests.” Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). However,
nothing in the law indicates that litigation must always be accompanied by full
discovery, cross examination, and credibility determinations. Instead, a review
of the Supreme Court’s case law regarding due process shows that, as with most
constitutional principles, it requires a balancing test that weighs the
particular property interest deprived against the process due. See Cafeteria
Workers v. McElroy, 367 U.S. 886, 895 (1961); Morrissey v. Brewer,
408 U.S. 471, 481 (1972); Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

Nonetheless, the dissent argues broadly
that the Commission’s temporary reinstatement procedures and standards are so
lax that any challenge by an operator is necessarily futile.[18]
Slip op. at 29 n.9. That
assertion is not borne out by Commission caselaw. The Commission has certainly
denied applications for temporary reinstatement.[19]
The dissent also raises more specific challenges to the Commission’s procedures.
Our colleague alleges that Mine Act Respondents are afforded fewer due process
protections than those approved by the Supreme Court in Brock, claiming
for example that Brock affords a right to credibility determinations at
the temporary reinstatement stage.[20]
Slip op. at 31. Our colleague has the issue backwards. With respect to proceedings
under the Surface Transportation Act, Brock explicitly reserved
credibility determinations for the administrative law judge’s decision on the
merits, rather than the investigator’s preliminary “reasonable cause”
determination. 481 U.S. at 266. The Court also more broadly noted that witness
examinations at the temporary reinstatement stage “need not be formal” and need
not afford cross-examination. Id. at 264. Significantly, the Eleventh
Circuit has compared the Commission’s procedures to those afforded in Brock.
JWR, 920 F.2d at 747-748. Contrary to our dissenting colleague’s
allegation, the Eleventh Circuit unequivocally stated that the Commission’s
process was more robust, finding that our procedure of affording the
opportunity for a full evidentiary hearing prior to temporary reinstatement
“far exceed[s] the minimum requirements” of the Constitution as articulated in Brock.[21]
Id.

Our dissenting colleague further argues
that the parties’ interests regarding temporary reinstatement should be
reweighed once the Judge has issued a decision on the merits of the complaint. Specifically,
the dissent argues that the Judge’s decision after a “full and fair” hearing on
the merits is more reliable than the Judge’s determination at the temporary
reinstatement stage, therefore if a Judge determines no discrimination
occurred, the balance of interests no longer favors temporary reinstatement. Slip
op at 28-30, 34.

First, we note that the phrase “full and fair
hearing”
is found nowhere in the Mine Act or Commission regulations, nor does it appear
to have any specialized meaning within the law in general.[22]
See, e.g., Galke v. Duffy, 645 F.2d 118 (2nd Cir. 1981). A term which
does not appear to have any particular legal meaning cannot overcome statutory
language providing that temporary reinstatement remains in place until a final
decision on the merits is reached. Moreover, the entire theory of appellate
review is that a Judge may have made errors, as the Judge in the instant case
did. In other words, it is not certain (until after review) that a Judge’s
hearing on the merits was full or fair, given those terms’ colloquial
meaning. The dissent would create a rule that a Judge’s decision is presumed to
be without error even before the Complainant has the opportunity to seek
review. There is no basis for that presumption in the law. To the contrary,
Congress expressly sought to allow miners to have the benefit of temporary
reinstatement until a final decision on the merits is reached.

Our dissenting colleague’s final due
process argument is that delays in the Commission’s handling of this matter
amounted to a due process violation. Slip op. at 27, 29-30, 34, n.9. It should be
highlighted that no party has raised these arguments in any briefing or
argument before the Commission, and it is inappropriate for the dissent to
argue and advocate on behalf of a party. Doing so violates the party
presentation principle and implicates parties’ due process rights. The Supreme
Court has stated that “[i]n our adversarial system of
adjudication, we follow the principle of party presentation. As this Court
stated in Greenlaw v. United States, ‘in both civil and criminal cases,
in the first instance and on appeal ..., we rely on the parties to frame the
issues for decision and assign to courts the role of neutral arbiter of matters
the parties present.’” U.S. v Sineneng-Smith, 590 U.S. 371, 375 (2020)
(citations omitted). The Supreme Court has repeatedly held that “[t]he core of
due process is the right to notice and a meaningful opportunity to be heard. Lachance
v. Erickson, 522 U.S. 262, 266 (1998). The dissent’s sua sponte
introduction of an argument not made by the parties deprives the parties of
notice of the issues under consideration on appeal and an opportunity to be
heard on those issue. See Adam A. Milani & Michael R. Smith, Playing
God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 TENN.
L. REV. 245 (2002). We see no reason to create Constitutional challenges
that the parties did not even raise. Consistent with JWR, we conclude
that there are no due process concerns in this case.

Moving beyond due process claims, Vulcan
argues that if the Secretary is not litigating the appeal, the operator lacks
an important safeguard to prevent meritless appeals to the Commission. We are
not persuaded. Appeals to the Commission are not a matter of right, but rather
granted on a discretionary basis. Therefore, the Commission serves as the
gatekeeper, preventing meritless appeals. The Commission has instituted
safeguards to prevent undue delay of proceedings, regardless of the Secretary’s
involvement, such as expediting cases and setting deadlines. See 29 C.F.R. Part
2700.

We also reject the operator’s argument
that its continued voluntary payment of Hargis’ economic reinstatement renders
the Secretary’s appeal moot and the Judge’s error harmless. A party cannot moot
a claim by voluntarily ceasing unlawful behavior or by promising to continue
engaging in lawful behavior. See North Am. Drillers, LLC, 34 FMSHRC 352,
358 (Feb. 2012). Additionally, Hargis has a right to be temporarily reinstated
to his prior position, pending a final order on the complaint, pursuant to
section 105(c)(2) of the Act. Accordingly, the Judge’s error in immediately
terminating the temporary reinstatement order was not harmless. An error is not
harmless if it affects a party’s “substantial rights.” Fed. R. Civ. P. 61; CFE Racing
Products, Inc. v. BMF Wheels, Inc., 793 F.3d 571, 584 (6th Cir. 2015)
(citing Morales
v. Am. Honda Motor Co.,
151 F.3d 500, 514 (6th Cir. 1998). Moreover, the Judge’s error implicates the
rights of all miners on whose behalf the Secretary has sought temporary
reinstatement and subsequently filed a complaint.

Accordingly, for the reasons above, we
find that a reading of the Mine Act that provides for temporary reinstatement
through a final decision best comports with the plain language of the Act and
raises no due process concerns.

• Temporary reinstatement
  continues for 30 days after the issuance of a Commission appellate
  decision; alternatively, if the Commission declines to grant review,
  temporary reinstatement expires 40 days after the Judge issues his or her
  merits decision.

Vulcan further argues that temporary
reinstatement must end 30 days after a Judge dismisses a discrimination case on
its merits, regardless of whether the Commission directs review. Vulcan
relies on language in section 105(c)(2) which states that orders affirming,
modifying or vacating the Secretary’s discrimination complaint “shall become
final 30 days after [ ] issuance.” 30 U.S.C. § 815(c)(2). In so arguing, Vulcan
misreads the Act and our caselaw.[23]

Consistent with our decision in Bernardyn,
the 30-day language in section 105(c)(2) refers to decisions issued by the Commission,
not our Judges. Section 113(d)(1) states that Judges’ decisions “shall become
the final decision of the Commission 40 days after its issuance unless
within such period the Commission has directed that such decision shall be
reviewed . . .” 30 U.S.C. § 823(d)(1) (emphasis added). Under section
113(d)(2)(A)(i), 30 U.S.C. § 823(d)(2)(A)(i), “[a]ny person adversely affected
or aggrieved by a decision of an administrative law judge, may file and serve a
petition for discretionary review by the Commission of such decision within 30
days after the issuance of such decision.” The Commission has the remaining days
of the 40-day period to consider the petition and grant review.[24]

Section 113(d)(1) contains language that
is generally applicable to all Administrative Law Judge issuances pursuant to
the Act. Section 113(d) by its terms applies to Judge’s decisions in section
105(c) cases because it applies to “any proceeding instituted before the
Commission . . . , assigned to [an] administrative law judge by the chief
administrative law judge of the Commission or by the Commission.” 30 U.S.C. §
823(d)(1) (emphasis added). This includes section 105(c)(2) cases.

Conversely, the 30-day language in the Act
routinely refers to appellate Commission decisions. See 30 U.S.C.
§816(a)(1) (circuit court review of final agency decisions may be sought “30
days following the issuance” of a Commission order). Reading the 30-day
language of section 105(c)(2) in the context of section 113(d)’s appellate
review provisions, so that Commission appellate decisions become final within
30 days but Judges’ issuances become final after 40 days, best reconciles the
statutory language of each section.[25]
It is also consistent with the language of section 105(c)(2) itself. The
provision states that temporary reinstatement shall continue pending “final
order on the complaint.” 30 U.S.C. § 815(c)(2). It goes on to state that the
Secretary shall “file a complaint with the Commission,” and that “the
Commission shall afford an opportunity for a hearing . . . and thereafter shall
issue an order.” Id. It concludes by stating that “[s]uch order shall
become final 30 days after its issuance.” Id. Based on this plain
language, the “order” that shall become final after 30 days is the Commission’s
order on the Secretary’s complaint.

Vulcan’s arguments
that extending temporary reinstatement until there is a final order on the
complaint violates its right to due process of law are not availing. Similar
arguments were considered and dismissed by the Eleventh Circuit in Jim
Walter Resources, 920 F.2d 738 (11th Cir. 1990) as discussed supra.
In fact, in Jim Walter Resources, the Eleventh Circuit recognized that
the temporary reinstatement order that was before it, continued to remain in
effect, even though the Commission reversed the Judge’s finding of a violation
and remanded the case for further analysis. See 920 F.2d at 743 n.2
(“Because no final determination of the ultimate merits of [the miners]
complaints has yet been reached, the temporary reinstatement order continues to
affect the parties’ rights and interests in this case.”).

III.

Conclusion

For the foregoing
reasons, we affirm in part and reverse in part the Judge’s decision. We uphold
the portion of the Judge’s decision that affirmed the violation of section
50.20(a)’s injury reporting requirements. We also affirm the portion of the
Judge’s decision that dismissed the discrimination complaint under section
105(c). We find that the Judge erred in his nexus analysis, but that it
constituted excusable error because of the operator’s affirmative defense.
Finally, we vacate the portion of the Judge’s decision immediately terminating Hargis’
temporary reinstatement. No additional payments are necessary, however, because
the operator has been voluntarily paying Hargis’ temporary reinstatement during
the course of this appeal. Temporary reinstatement terminates 30 days
after the date of this decision.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/
Moshe Z. Marvit

Moshe Z. Marvit,
Commissioner

Commissioner
Rajkovich, concurring:

I
fully concur with the majority in Parts II.A, C, and D of the Disposition. I
also concur in result with the majority’s holdings in Part II.B that Vulcan did
not discriminate against Hargis and that he was ultimately terminated due to
unprotected activity. I disagree solely with the majority’s finding in Part
II.B.1 that the complainant met his prima facie case of discrimination. My
colleagues conclude that the Judge erred by finding insufficient evidence of a
motivational nexus between Hargis’ protected activity and his adverse
employment action. I would find that substantial evidence supports the Judge’s
determination that the complainant failed to show discriminatory intent
sufficient to establish a motivational nexus, and that Vulcan’s decision to
terminate Hargis was not motivated in any part by his protected activity
on April 12 and May 12.

A. The Judge properly
found insufficient evidence to support a nexus between Hargis’ protected
activity and the adverse employment action.

As the majority notes, a miner seeking to
establish a prima facie case of discrimination must show that he or she
engaged in protected activity and that the adverse action complained of was
motivated in any part by that activity, in other words, that a motivational
nexus existed between the protected activity and the adverse action. Sec’y
of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2799 (Oct. 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of
Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817
(Apr. 1981).

In order to determine whether a
motivational nexus existed, the Commission may consider indirect indicia of
discriminatory intent such as (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 of the complainant. Sec’y of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510-12 (1981), rev’d on other grounds sub
nom. Donovan on behalf of Chacon v. Phelps Dodge, 709 F.2d 86 (D.C. Cir.
1983).

For the reasons below, substantial
evidence supports the Judge’s conclusion that Hargis failed to show sufficient
indicia of discriminatory intent to support a finding of discrimination.

1. Substantial
   evidence supports the Judge’s finding that no inference of discriminatory
   intent may be found based on management knowledge of protected activity.

Regarding Hargis’ May 12 request, the
Judge acknowledges that management was aware of the request on May 12,
but notes that the decision to terminate Hargis was “well underway” by then. 44
FMSHRC at 754, 759. The record shows that Hargis was recommended for
termination on May 11. Tr. 508-09, 630-31. When deciding to take the relevant
adverse action, mine management could not have had knowledge of a request that
had not yet occurred. As for Hargis’ April 12 request, the Judge notes that the
complainant was unable to produce any evidence that Williams discussed the
request with anyone else in the company. 44 FMSHRC at 761-62 n.29. Substantial
evidence supports the Judge’s finding that management was unaware of the April
and May requests prior to taking adverse action. Accordingly,
discriminatory intent cannot be inferred from management knowledge.1

2. Substantial
   evidence supports the Judge’s finding that there was no hostility or animus
   toward the protected activity.

The Judge properly found no evidence of
animus toward Hargis’ requests to see a doctor. The Judge notes that every
disciplinary action prior to his termination occurred prior to his
protected activity, and that the record did not demonstrate any adverse
responses to Hargis’ requests from mine management. 44 FMSHRC at 758-59. To the
contrary, the Judge noted that Williams showed concern for the condition of
Hargis’ back, even placing Hargis on light duty after the April 12 injury
report. Id. at 748, n.19, 762.

Hargis points to
other alleged evidence of animus, claiming that Vulcan engaged in a course of
conduct to “get rid of him” going back to December 2020. Tr.
20, 637. However, as noted, all of the alleged incidents occurred either before
Hargis’ first request for a physician on April 12, or after
management had already decided to terminate Hargis’ employment. The Judge
reasonably found that any alleged animus before the protected activity or after
the adverse action could not serve as evidence of a motivational nexus between
the protected activity and the adverse action.

The majority
challenges the Judge’s finding that Vulcan’s “indifference” towards Hargis’
request for medical care does not constitute animus towards protected activity.
Slip op. at 9-10. My colleagues claim that choosing to do nothing when
a miner engages in protected activity is the “very definition of animus.” Id.
at 9. In support of this proposition, they cite the long-standing Commission
proposition that the focus of an animus inquiry is animus towards the
complainant’s protected activity, rather than animus toward the complainant him-or
herself. Id., citing Chacon, 3 FMSHRC at 2511.

The proper inquiry
is certainly whether animus was directed toward the complainant’s protected
activity. However, it is unclear how that proposition establishes that indifference
towards protected activity constitutes animus towards protected
activity. Animus is generally understood to contain some element of intent,
particularly intent to take negative action.2 This
is consistent with the general purpose of the animus analysis in the
discrimination context, which is to locate indicia of “discriminatory intent”
to determine whether the complainant’s protected activity motivated the
operator’s decision to take adverse action. Chacon, 3 FMSHRC at 2510
(emphasis added). It is unclear how a lack of intent to take action in
response to protected activity would demonstrate discrimination.

More narrowly, it
is arguable whether the Judge truly found indifference toward Hargis’ protected
activity. The only reference to “indifference” in the Judge’s decision states:

There is no evidence that Mr.
Ellis was aware that Complainant requested to see a doctor before making the
decision to terminate his employment, or that he discussed any previous
requests with Mr. Humes, Mr. Williams, or Mr. Clemmons. Nor is there any
evidence that any of the other individuals involved in the decision to
discharge Complainant ever evinced anything worse than indifference in
response to his request to see a doctor.

44 FMSHRC at 759 (emphasis
added).

In context,
it appears the Judge was discussing the impact of Hargis’ requests on the disciplinary
decision-making process—the decision-makers were “indifferent” to the
protected activity when deciding whether to terminate Hargis. There is
nothing in the Judge’s opinion that suggests Vulcan was “indifferent” to the
requests themselves or unwilling to arrange for medical visits.3 The
Judge’s finding here was merely that, in this instance, the protected activity
did not motivate the adverse action.

3. Substantial
   evidence supports the Judge’s finding that no inference of discriminatory
   intent was found based on coincidence in time.

The Judge acknowledged the coincidence in
time between Hargis’ protected activity and his termination. 44 FMSHRC at 760. However,
he noted that Hargis had already been placed on a “last chance” disciplinary
agreement prior to both the April 12 and May 12 requests, and that Hargis had
already been recommended for termination prior to the May 12 request,
such that the latter request “did not influence, but rather interrupted” the
execution of the adverse action. Id. at 760-61. Finally, he noted the
lack of any corroborating facts to suggest that the coincidence in time
indicated discriminatory intent, particularly noting Williams’ care for Hargis’
health issues. Id. at 762. Accordingly, the Judge concluded that the
coincidence in time was, in truth, just a coincidence. Id. at 761. Substantial
evidence supports the Judge’s reasoning. Tr. 20-21, 466, 508-09, 430-31,
630-31, 666.

4. Substantial
   evidence supports the Judge’s finding that there was no disparate treatment of
   Hargis due to protected activity.

The majority correctly accepts the Judge’s
finding that the only evidence of potential disparate treatment occurred before
Hargis’ protected activity. Slip op. at 11. The majority considers this
insufficient to overcome other indicia of discriminatory intent, while I find
it to be consistent with the lack of record evidence indicating discriminatory
intent.

B. Substantial
evidence supports the Judge’s finding that Vulcan’s explanation for the
termination is not pretextual; Vulcan terminated Hargis based on unprotected
activity alone.

My colleagues find that the complainant
met his initial burden, but that the operator has

successfully rebutted the prima facie case through an affirmative
defense. As discussed above, I would find that the complainant did not
meet his initial burden in presenting a prima facie case, therefore no
affirmative defense is required. However, as the majority notes, the
affirmative defense analysis is similar to the pretext inquiry conducted by the
Judge below. Slip op. at 12, n. 11. I concur with the majority’s factual
findings in Part II.B.1.d.1 and agree that Vulcan has “adequately shown that it
followed its progressive discipline policy and would have fired Hargis for a
non-discriminatory reason alone.” Id. at 12. Accordingly, substantial
evidence supports the Judge’s conclusion that Vulcan’s business justification
was not pretextual.

In sum, I would affirm the Judge’s
findings that the complainant failed to establish a motivational nexus between
his protected activity and the adverse action, and that the operator’s business
justification was not pretextual. Accordingly, I concur with the majority in
result and would find that no discrimination occurred.

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Commissioner
Althen, joining in part, concurring in part, and dissenting in part:

I join Part II.A to affirm the citation
for failure to report an occupational injury.

I join with Commissioner Rajkovich’s
concise and dispositive concurrence of Part B that substantial evidence
supports the Administrative Law Judge’s decision denying Jason Hargis’
discrimination claim.

I write separately to dissent on the
discrete issues presented in Parts II.C and II.D concerning the continuation of
temporary reinstatement after an ALJ decision following a full and fair
hearing.

I.

CONTINUATION OF
TEMPORARY REINSTATEMENT AFTER AN ADMINISTRATIVE LAW JUDGE FINDS NO
DISCRIMINATION FOLLOWING A FULL AND FAIR HEARING VIOLATES THE DUE PROCESS
CLAUSE OF THE UNITED STATES CONSTITUTION.

A. BACKGROUND

On
June 7, 2021, Hargis filed a discrimination complaint against Vulcan
Construction Materials, LLC. The Secretary of Labor sought temporary
reinstatement. The parties filed a Joint Motion for Economic Reinstatement. On
July 27, 2021, the Administrative Law Judge temporarily reinstated Hargis
pending further adjudication. That Order implemented an agreement between the
parties in which Vulcan agreed to pay Hargis $1,014.87 per week plus benefits. The Commission is not aware of any
modification or suspension of that Order or the payments. If payments have not
been suspended, the total amount of temporary reinstatement payments to a
lawfully discharged employee will be approximately $155,000.1

On
December 1, 2022, the ALJ found that Vulcan had not discriminated against
Hargis and terminated temporary reinstatement. The Secretary challenged the
termination of temporary reinstatement. Since December 1, 2022, Hargis has
continued to receive economic reinstatement and will continue to do so until
thirty days after the date of this decision.

After
the ALJ decision, the Secretary dropped the claim of discrimination. Nonetheless,
the Secretary filed a Petition for Discretionary Review asserting the ALJ erred
in dissolving the temporary reinstatement order on the date of his fully
considered decision of no discrimination—a decision on the merits that the
Secretary accepted.

The
Secretary asserts that Hargis must remain temporarily reinstated until a
“final” decision. By the term “final” decision, the Secretary appears to mean a
final non-appealable decision by the Commission, a United States Circuit Court
of Appeals, or the United States Supreme Court. Specifically, the Secretary
claims “Once a complaint is filed on a miner’s behalf [by the Secretary], the
miner has a defined path to pursue recourse: appeal an unfavorable decision of
the judge to the Commission, and appeal an unfavorable Commission decision to
the federal court of appeals.” Sec’y Reply Br. at 12.

The
majority does not accept the Secretary’s argument regarding the length of
temporary reinstatement but instead finds that temporary reinstatement exists
30 days after this decision by the Commission.2 After three years of
delay, the Commission at least finds that temporary reinstatement need not
continue for the many months it would take to resolve an appeal. That is
certainly an unsatisfying salve for the injured party’s wounds.

B.
THE CONSTITUTIONAL ISSUE

The
Secretary claims that temporary reinstatement under the nonfrivolous standard
of proof without credibility determinations or consideration of factual
disputes continues after a full hearing and decision by an ALJ. According to
the Secretary, the expedited and sharply limited hearing under a non-frivolous
standard of proof is sufficient due process for reinstatement to last not only
for the many months it takes for an ALJ to rule on the case after a full
hearing but also for a year or more after the ALJ decision. Vulcan responds
that continuation of reinstatement based upon the initial cursory non-frivolous
standard after a full and fair hearing before an ALJ deprives it of due process
rights.3

The
Secretary’s position in this case is a dramatic change from the position taken
by the Secretary before Congress in 1999. The Assistant Secretary for Mine
Safety and Health under the Clinton administration, Davitt McAteer, wrote in an
addendum to congressional testimony that temporary reinstatement is “effective until
the ALJ rules on the merits of the miner’s discrimination complaint.” Increasing MSHA and Small Mine Cooperation:
Hearing Before the Subcomm. On Employment, Safety, and Training of the Senate
Committee on Health, Education, Labor, and Pensions, 106th Cong. 174
(Comm. Print 1999) (emphasis added.). Assistant Secretary McAteer’s statement
correctly interpreted the law. The current Acting Secretary and my colleagues
now veer from the constitutional approach taken in 1999.

To reach a constitutional issue, a
case must involve a deprivation of rights. Section 105(c) of the Mine Act
creates a right for employees to not have adverse employment consequences
because they have exercised protected rights.4 A miner’s claim under
section 105(c), therefore, raises a claim of statutory rights.

Separately,
Vulcan has a constitutionally protected right to manage its workforce including
a right to fire an employee. Brock v. Roadway
Express, Inc., 481 U.S. 252, 260-61
(1987); see ; Business Commc’ns, Inc. v. U.S. Dept. of Educ., 739
F.3d 374, 379 (8th Cir. 2013); Chernin v. Lyng, 874 F.2d 501, 506 n.3
(8th Cir. 1989). Consequently, proceedings challenging an employer’s management
actions implicate the employer’s rights and, therefore, constitutional
considerations.

It
is not unusual for the constitutional rights of separate parties to come into
tension. Such occurrences include, as here, cases in which an employer wishes
to assert its lawful management rights while an employee believes the
employer’s action violated his statutory rights. This situation brings into
play the due process rights of the respective parties.

Due process in litigation ordinarily occurs through a full and
fair hearing during which each party presents witnesses and evidence,
cross-examines witnesses, and makes arguments for its position. A party is
entitled to assert its rights “at a meaningful time and in a meaningful
manner.” Armstrong
v. Manzo, 380 U.S. 545, 552 (1965); Mathews v. Eldridge,
424 U.S. 319, 334 (1976) (citations omitted).

The Mine Act and Commission rules provide little due
process—indeed, virtually no process at all—preceding temporary reinstatement. If,
following an initial, expedited investigation, the Secretary finds that the
miner’s complaint is not “frivolous,” the Mine Act requires the Secretary to
seek temporary reinstatement. Commission rules of procedure require a highly
expedited procedure for temporary reinstatement requests. 29 C.F.R. § 2700.45.

A
temporary reinstatement hearing is sharply limited. The “scope of a temporary
reinstatement hearing is narrow, being limited to a determination by the judge
as to whether a miner’s discrimination complaint is frivolously brought.” Sec’y
of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306
(Aug. 1987), citing 30 U.S.C. § 815(c)(2) (other citations omitted), aff’d,
920 F.2d 738 (11th Cir. 1990). The proceedings are greatly expedited. The ALJ
may not make credibility determinations and may not resolve conflicts in
testimony. These limitations provide the miner’s testimony the benefit of the
doubt on any contested fact even when his testimony strains credulity or
appears inconsistent with other factual testimony. Sec’y of Labor on behalf
of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999) (citations
omitted) (“It was not the judge’s duty, nor is it
the Commission’s, to resolve the conflict in testimony at this preliminary
stage of proceedings.”). As a result of an almost non-existent standard
of proof, great expedition, the absence of credibility determination, and the
absence of resolution of factual disputes, the operator has little or no chance
of prevailing at this stage of the proceeding.5

The constitutional correctness of this
minimal temporary reinstatement process is not in question in this case. Here,
however, the Secretary goes further and claims that temporary reinstatement
under the nonfrivolous standard of proof, without credibility determinations or
any consideration of factual disputes, continues after a full and fair hearing
before an ALJ until the complainant exhausts its appeal rights. Delays in
obtaining disposition of a temporary reinstatement through appeal to the
Commission add a minimum of many months or, as here, years, to the length of
temporary reinstatement. In essence, the operator’s right to a “final” decision
after a full and fair hearing is delayed/denied for months/years while the
operator must employ an unsafe or ineffective worker even though an ALJ upheld
the discharge after a full and fair evidentiary hearing.6

In Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987), the
Supreme Court reviewed Section 405 of the Surface Transportation Assistance Act
of 1982 (“STAA”). That section authorizes the Secretary of Labor to order the
reinstatement of an employee under the “reasonable cause to believe” standard. As
enacted, the Act did not require the Secretary to inform the employer of the
basis of the claims or allow the employer to address those claims. In Brock,
the employer challenged the constitutionality of this process.7

A plurality of the Court
consisting of Justice Marshall, Justice Blackmun, Justice Powell, and Justice O’Connor
found the failure to notify the employer of the basis of the claim of
discrimination or to allow the employer to respond violated the employer’s
constitutional rights. 481 U.S. at 268. The plurality held the employer had a
constitutional right to receive “notice of the employee's allegations, notice
of the substance of the relevant supporting evidence, an opportunity to submit
a written response, and an opportunity to meet with the investigator and
present statements from rebuttal witnesses.” Id. at 264. Those factors
are critical to whether there was a “reasonable cause to believe.”

Importantly, the Court’s
decision inevitably envisions weighing the statements of rebuttal witnesses
regarding the facts. Undoubtedly,
the Court took it as a given that the Secretary would be neutral in applying
the reasonable cause to believe standard to the claims and evidence presented
by the parties. Therefore, the right under the STAA
to have rebuttal statements by witnesses and credibility, along with the
reasonable cause to believe standard, makes the procedures identified by the
Supreme Court in Brock substantially more robust than the procedures
under the Mine Act as interpreted by the Commission where the standard of proof
is “non-frivolous,” no credibility determinations may be made, and factual
disputes may not be decided.

The Court found that in the
context of temporary reinstatement, the limited procedures were sufficient if
an opportunity is given to present rebuttal and dispute the factual
allegations. The plurality held that it was not unconstitutional to reinstate
temporarily under a reasonable cause-to-believe standard without an evidentiary
hearing provided the employer could present fact witnesses to the Secretary.

For purposes of this case,
it is critical to understand that Brock involves an initial
determination and not a determination made by a truly neutral judge after a
full and fair hearing. Critically, the Court repeatedly emphasizes the rights
of employers. The Court stated:

The property right of which Roadway asserts it has been deprived
without due process derives from the collective-bargaining agreement between
Roadway and its employees’ union. It is the right to discharge an employee for
cause.

Id. at 260.

Reviewing this
legislative balancing of interests, we conclude that
the employer is sufficiently protected by procedures that do not include an
evidentiary hearing before the discharged employee is temporarily reinstated.
So long as the prereinstatement procedures establish a reliable “initial check
against mistaken decisions,” Loudermill, supra, at 545, 105 S.Ct., at 1495,
and complete and expeditious review is
available, then the preliminary reinstatement
provision of § 405 fairly balances the competing interests of the Government,
the employer, and the employee, and a prior evidentiary hearing is not
otherwise constitutionally required.

Id. at 263 (emphasis added).

This is not to
say, however, that the employer’s interest in an expeditious resolution of the
employee’s complaint can never provide a basis for a due process violation. At
some point, delay in holding postreinstatement evidentiary hearings may become
a constitutional violation. See Loudermill, 470 U.S., at
547, 105 S.Ct., at 1496. Barry v. Barchi, 443 U.S. 55, 66, 99 S.Ct. 2642,
2650, 61 L.Ed.2d 365 (1979); Mathews, 424 U.S., at 341–342,
96 S.Ct., at 905–06.

Id. at 267 (emphasis
added).

In the
above-quoted passages, the Court emphasizes the due process problem of a delay
in holding an evidentiary hearing, the step the Commission accomplished through
the ALJ hearing. This case is far worse; it deals with years of delay after a
full and fair hearing.8

Justice Brennan, in dissent, emphasized:

The adequacy of
predeprivation procedures is in significant part a function of the speed with
which a postdeprivation or final determination is made. Previously the Court
has recognized that “[t]he duration of any potentially wrongful deprivation of
a property interest is an important factor in assessing the impact of official
action on the private interest involved.” Mackey v. Montrym, 443 U.S. 1,
12, 99 S.Ct. 2612, 2618, 61 L.Ed.2d 321 (1979). See also Loudermill,
supra, 470 U.S., at 547, 105 S.Ct., at 1496. (“At some point, a delay in
the post-termination hearing would become a constitutional violation”). Were
there any guarantee that the final hearing would occur promptly—within a few
weeks, for example—the procedure endorsed by the Court might suffice. No such
guarantee exists.

Id. at 270.

Justice
Brennan found the absence of a full hearing
constituted an insuperable barrier to constitutionality. He
concluded that the government’s interest did not justify the entry of a
reinstatement order based on evidence that was not disclosed to the employer
and tested by cross-examination in an adversary proceeding before the order
became effective. Foreshadowing the disregard of fundamental fairness present in
this case, Justice Brennan wrote, “The combination of uncertainty and delay
inherent in the Secretary’s regulatory scheme eliminates any possibility that
it might compensate for the inadequacy of the predeprivation hearing.” Id. at 271. Here, as
distinguished from Brock, we are at the post-hearing stage; yet
the Secretary argues a nonfrivolous claim must still be honored.

The
obligation for a timely hearing to resolve fully the rights of the parties is
controlled by the Court’s
decision in Barry v. Barchi, 443
U.S. 55, 66 (1979). There, a finding of drugs in a horse resulted in the
suspension of a horse trainer’s license. The relevant state statute provided
for a summary suspension of a license for 15 days upon an initial finding of an
unlawful drug in a horse. The statute further provided for a full hearing but
did not specify any time obligation for such a hearing. It required a final
decision within 30 days after the full hearing. 443 U.S. at 61. Barchi
challenged the constitutionality of the statute.

In a decision presaging Brock, the Supreme Court
upheld the immediate temporary suspension finding that
the State was entitled “to impose an interim suspension, pending a prompt
judicial or administrative hearing that would definitively determine the issues,
whenever it has satisfactorily established probable cause [note the higher
standard] to believe that a horse has been drugged and that a trainer has been
at least negligent in connection with the drugging.” Id. at 64
(citations omitted).

The Court went on to find that after a temporary infringement
on a person’s property interest, the judicial pendulum necessitates a prompt
final resolution. Recognizing that Barchi had an important property interest,
the Court struck down the statute based on the failure to ensure a timely
evidentiary hearing. The Court opined,

[I]t
was necessary that Barchi be assured a prompt postsuspension hearing, one that
would proceed and be concluded without appreciable delay. Because the statute
as applied in this case was deficient in this respect, Barchi’s suspension was
constitutionally infirm under the Due Process Clause of the Fourteenth
Amendment.

Id. at 66.

Based upon the Court’s definitive statement, the Court certainly
would not have allowed the temporary suspension to continue after a full
hearing which found no fault on the part of the trainer. Nonetheless, my
colleagues now find such reinstatement must continue after a full and fair
hearing at the cost of many more months or years of deprivation of the
operator’s basic rights.

The
majority writes as if the constitutional issue in this case is the balance of
rights before temporary reinstatement. That is not an issue in this case. The
issue here is the balance of rights after a full and fair hearing, not whether
the operator received sufficient due process before the issuance
of the Order of Temporary Reinstatement. It is whether the displacement of the
protected rights of the operator may continue indefinitely after
an ALJ affirms the discipline following a full hearing.9 Perhaps
the easiest way to demonstrate the folly in the majority’s position is to
suppose the statute did not provide for immediate temporary reinstatement but
instead provided for a greatly expedited full and fair hearing. No one, I
think, would argue that it would pass constitutional muster to compel
reinstatement if the unproven claim at that hearing had not been wholly
frivolous. However, effectively, that is now the case before us.

II.

TEMPORARY REINSTATEMENT CEASES WHEN

THE SECRETARY DECIDES NOT TO PURSUE AN

INDIVIDUAL’S COMPLAINT OF DISCRIMINATION.

A complainant may receive temporary
reinstatement if the Secretary finds within an expedited time frame that the
claim is not frivolous and files a complaint with the Commission. The Secretary
then continues to review the claim. Without a doubt, if the Secretary decides
not to follow through as an advocate for the complainant, temporary
reinstatement ends. Vulcan Constr. Materials, L.P. v. Fed. Mine Safety &
Health Rev. Comm’n, 700 F.3d 297, 310 (7th Cir. 2012); North Fork Coal
Corp. v. Fed. Mine Safety & Health Rev. Comm’n, 691 F.3d 735, 744 (6th
Cir. 2012). This is the established law of the Commission.

By failing to appeal the ALJ’s decision,
the Secretary gives up on its complaint and accepts the ALJ’s decision that the
operator did not discriminate within the meaning of 30 U.S.C. § 815(c). There
is no reason to treat this conclusion by the Secretary differently from a
conclusion by the Secretary after an investigation, that discrimination did not
occur.

Indeed, consider the scenario in which the
Secretary files a complaint after an investigation but, after later discovery,
determines discrimination did not occur. Certainly, the Secretary is not
required to pursue a case in which the Secretary no longer believes a finding
of discrimination may be made. If the Secretary withdraws from a case after
filing a complaint, the parties are in the same position as if the Secretary
had not filed a complaint in the first place. This policy must apply when the
Secretary decides to withdraw a previously filed complaint and must also apply
when the Secretary gives up its claim and accepts an ALJ’s decision of no
discrimination.

Yet,
the majority today finds that if an ALJ finds after a full hearing that
discrimination did not occur and the Secretary decides not to pursue the claim
further, the Secretary’s decision not to prosecute the case is irrelevant, and
temporary reinstatement continues through a lengthy appeals process despite the
absence of the Secretary. I cannot join my colleagues in finding that Congress
could mean to create a nonsensical procedure so that, when the Secretary drops
out before a hearing, temporary reinstatement ceases, but if the Secretary
drops out after a full hearing finds no discrimination, temporary reinstatement
continues.

In summary, the
Secretary contends that after the Secretary no longer supports or proposes a
finding of discrimination, the “temporary” reinstatement must continue through
an appeal to the Commission and then through possibly multiple appeals because
many months previously the Secretary filed a complaint before an ALJ. Given the
Commission’s record of taking months to issue decisions and the time inevitably
involved in further appeals, final action on the discrimination complaint by a
circuit court of appeals could not be reached until July 2025 at the earliest.10
Temporary reinstatement would have lasted a year from its initial grant and
then another twenty months on appeal, meaning temporary reinstatement would
continue long past a ruling of no discrimination by an ALJ after a full and
fair hearing.

III.

THE TEXT OF THE MINE
ACT REQUIRES REINSTATEMENT END 30 DAYS AFTER ISSUANCE OF THE ALJ’S DECISION.

The Mine Act states that temporary
reinstatement shall be ordered pending “ final order on the complaint.” 30
U.S.C. § 815(c)(2). Historically, when determining the final order date, the
Commission has relied on the general rule pertaining to appeals of ALJ
decisions. See Sec’y ex rel. Bernardyn v. Reading Anthracite Co.,
21 FMSHRC 947, 949 (Sept. 1999).11 This rule states that “[t]he decision
of the administrative law judge of the Commission shall become the final
decision of the Commission 40 days after its issuance unless within such period
the Commission has directed that such decision shall be reviewed by the
Commission…” 30 U.S.C. § 823(d)(1).

However, section 113(d)(1) conflicts
with 105(c)(2) of the Mine Act which governs temporary reinstatement and
discrimination proceedings. Section 105(c)(2) deals specifically with temporary
reinstatement and provides that after temporary reinstatement is ordered, the
Commission “shall afford an opportunity for a hearing . . . and thereafter
shall issue an order, based upon findings of fact, affirming, modifying, or
vacating the Secretary’s proposed order, or directing other appropriate relief.
Such order shall become final 30 days after its issuance.” 30 U.S.C. §
815(c)(2) (emphasis added).

Thus, one section of the Mine Act
states that orders become final 40 days after a hearing with the ALJ unless the
order is appealed, in which case, the final order date is extended. The other
standard states that orders become final 30 days after the hearing and finality
is not extended based on an appeal of the ALJ’s initial decision. The conflict
in these two sections of the Mine Act is a novel question that the Commission
has not yet addressed. Accordingly, on July 6, 2023, the Commission directed
the parties to file supplemental briefing to explain the apparent conflict
between sections 113(d)(1) and 105(c)(2).

In the Secretary’s supplemental
brief, the Secretary argues that the statutory text and structure of the Act
support applying the 40-day rule to determine when discrimination cases become
final orders. This reading of the Act would have the Commission align the two
sections by reading section 105(c)(2)’s 30-day rule to apply to Commission
decisions, not ALJ decisions. Therefore, an ALJ’s decision would become final
after 40 days, unless appealed, when it would become final 30 days after the
Commission’s decision. The Secretary argues that this interpretation comports
with basic principles of statutory construction, is in line with Commission
precedent, and promotes the purposes of the Mine Act.12 Importantly,
the Secretary does not argue that the Mine Act is ambiguous, nor does the
Secretary seek deference in support of that position.

The Secretary’s attempted adherence
to a textualist approach to reconciling these two sections fails in producing a
standard consistent with the Mine Act. First, if all Commission orders are
final 30 days after the Commission issues a decision on appeal, it seems odd
that Congress, in its wisdom, would decide to randomly remind readers of this
general proposition in the middle of a section on temporary reinstatement and
discrimination proceedings. The Secretary and the majority do not explain why
the 30-day rule would be inserted in section 105(c)(2). Thus, the Secretary’s
reading of the Act would relegate the 30-day rule in section 105(c)(2) to mere surplusage—redundant language.

Second, the Secretary’s reading
ignores the fact that section 105(c)(2) refers to the order issued after
hearing and based on findings of fact. The Federal Mine Safety and Health
Review Commission is an independent agency comprised of a core of
administrative law judges and a five-member Commission that reviews Judge’s
decisions. The Mine Act uses the word “Commission” to refer to both the agency
as a whole and just the appellate body. When section 105(c)(3) directs the
“Commission” to afford an opportunity for a hearing, the section is referring
to the agency, not the appellate body. The Commission, as an appellate body,
does not hold hearings, nor does it make findings of fact. Those powers are
reserved exclusively for the Commission’s ALJs. Section 105(c)(2) requires that
the order become final 30 days after a hearing and “based upon findings of
fact.” 30 U.S.C. § 815(c)(2). Accordingly, the text does not support an
interpretation where the 30-day rule is applied to Commission decisions.

One of the most fundamental
principles of statutory interpretation is generalia specialibus non derogant.
This canon of interpretation instructs readers of the law that, where there is
a conflict between a general provision and a specific provision, the specific
provision prevails. See Morton v. Mancari, 417 U.S. 535, 550-51 (1974)
(“Where there is no clear intention otherwise, a specific statute will not be
controlled or nullified by a general one. . . .”).

The Mine Act provides a general rule
in section 113(d)(1) whereby the decision of an ALJ will become final in 40
days with the possibility that the final order will be further delayed pending
appeal. This definition applies to a vast majority of cases before the
Commission that primarily address alleged violations of mandatory health and
safety standards. Section 105(c)(2), however, is specific to the small number
of cases of discrimination that come before the Commission. This section
prescribes novel concepts like an investigation by the Secretary into the
miner’s claims and temporary reinstatement, that warrant special treatment. In
this special context, Congress instructed that the parties be afforded a
hearing and should be issued an order based on findings of fact. Upon the
issuance of that order, the section clearly states that the order becomes final
in 30 days at which time temporary reinstatement ends. Section 105(c)(2) uses a
different calculation for finality (30, rather than 40, days) and makes no
mention of appeals. Given the clear instruction of this section based on the
specificity concerning discrimination proceedings and the proximity to the
language requiring the reinstatement to extend only to the “final order on the
complaint,” it is difficult to see how anyone could rationalize extending the
termination date beyond 30 days.

Moreover, reading the Act to require
that temporary reinstatement end after 30 days of an ALJ’s finding of no
discrimination avoids exacerbating the constitutional questions raised above. See
sections I, II, supra. When interpreting the Mine Act, the Commission
should also be mindful of the interpretive canon requiring readers of the law
to avoid statutory construction that raises “grave and doubtful constitutional
questions.” United States ex rel. Attorney General v. Delaware & Hudson
Co., 213 U.S. 366, 408 (1909).

Contrary to the assertion of the
majority, the application of the 30-day rule to ALJ discrimination decisions
does not conflict with the purpose of the Mine Act. Temporary reinstatement is
injunctive relief offered before a due process hearing and thus must be applied
only insofar as the public interest in protecting a miner’s income during a
complaint outweighs the operator’s innate interest in directing its workforce. The
Mine Act offers temporary reinstatement, not to every miner who files a
complaint, but rather, only to miners who have at least a nonfrivolous chance
of prevailing on the merits of their discrimination claims. In the first
instance, temporary reinstatement can be denied by the Secretary after a
cursory examination of the facts of the case.

Applying the 30-day rule is in
keeping with this principle. The miner in a section 105(c)(2) case would be
temporarily reinstated until the ALJ issues a decision on the merits of the
discrimination case. If the ALJ finds that no discrimination occurred, the
balance between the public and private interest shifts, and the miner is given
30 days of continued reinstatement to get their affairs in order before the
period of reinstatement ends.

The majority seeks to apply a rule
that is contrary to the purposes of the Act. By extending temporary
reinstatement after the miner fails to prove discrimination on the merits, the
majority creates a perverse incentive to appeal non-meritorious claims to
extend temporary reinstatement for months or even years. This is not the result
that Congress would have intended.

IV.

CONCLUSION

I join my colleagues in finding that
substantial evidence supports the ALJ’s finding of no discrimination and his
finding that the operator should have reported the injury. I cannot vote to
affirm a procedure that continues temporary reinstatement under a nonfrivolous
claim not tested by any factual or creditability determinations after an ALJ
finds after a full hearing that discrimination did not occur. After a full and
fair hearing, the balance of rights falls to the employer against a
nonfrivolous claim awarded with only the barest minimum of rights.

/s/ William I.
Althen

William I. Althen,
Commissioner

Distribution:

Emma
P. Cusumano, Attorney

Emily
Toler Scott, Counsel for Appellate

April
E. Nelson, Associate Solicitor

Litigation
Office of the Solicitor

U.S.
Department of Labor Division of Mine Safety & Health

201
12th Street South, Ste. 401

Arlington,
VA 22202

[email protected]

[email protected]

[email protected]

Christopher
M. Smith, Esq.

Office
of the Solicitor

U.S.
Department of Labor

618
Church Street, Suite 230

Nashville,
TN 37219

[email protected]

Elaine
M. Youngblood, Esq.

Ortale
Kelley

330
Commerce Street, Suite 110

Nashville,
TN 37201

[email protected]

Margaret
S. Lopez, Esq.

William
K. Doran, Esq.

Ogletree,
Deakins, Nash, Smoak & Stewart, PC

1901
K Street NW, Suite 1000

Washington,
DC 20006

[email protected]

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Administrative
Law Judge Michael Young

Office
of the Chief Administrative Law Judge

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] Section 105(c)
prohibits discrimination against miners in retaliation for exercising any
protected right under the Act. See generally 30 U.S.C. § 815(c).

[2] Section 50.20(a)
states that operators “shall report
each accident, occupational injury, or occupational
illness at the mine.” 30 C.F.R. §
50.20(a). Section 50.2(e) defines an “occupational injury” as “any injury to a
miner which occurs at a mine for which medical treatment is administered, or
which results in death or loss of consciousness, inability to perform all job
duties on any day after an injury, temporary assignment to other duties, or
transfer to another job.” 30 C.F.R. § 50.2(e) (2022).

[3] Section 105(c)(2)
authorizes temporary reinstatement pending “final order on the complaint” and
instructs that the “order shall become final 30 days after [the]
issuance” of the decision. 30 U.S.C. § 815(c)(2) (emphasis added).

[4] Section 113(d)(1)
of the Act states that “[t]he decision of the administrative law judge of the
Commission shall become the final decision of the Commission 40 days
after its issuance unless within such period the Commission has directed that
such decision shall be reviewed by the Commission . . . .” 30 U.S.C. §
823(d)(1) (emphasis added).

[5] TENN. CODE ANN. §
50-6-204(a)(1)(A) (2022) requires employers to furnish medical treatment to an
employee, free of charge, when such employee suffers a qualifying work-related
injury.

[6] Our dissenting
colleague provides a timeline of these proceedings on appeal that is
misleading, incomplete, and filled with ad hominem attacks against his
colleagues. Our responses will be limited to our colleague’s factual and legal
arguments.

[7] The Secretary
argues that we must interpret “inability” in section 50.2(e) to mean, as a
matter of law, that the miner is suffering a “functional” rather than “literal”
inability to work. Sec. Resp. Br. at 10. She claims that under the operator’s
interpretation, nothing less than total physical disability renders a miner
unable to do something within the meaning of section 50.2(e). However, it is
unnecessary to reach this issue or set forth a definition of “inability” beyond
its regular, common meaning. The facts in this case show that Hargis was in
considerable pain and as a result, unable to perform all his job duties. Tr.
177–78, 323, 379, 627-28. Therefore, substantial evidence supports the ALJ’s
determination regarding section 50.2(e).

[8] The Ninth Circuit
in Thomas v. CalPortland Co., 993 F.3d 1204, 1210–11 (9th Cir. 2021)
recently decided that Commission discrimination cases in that Circuit must
apply the Supreme Court’s “but for” analysis used for Title VII cases. Gross
v. FBL Financial Services, Inc., 557 U.S. 167 (2009), and University of
Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013). The
instant case is not within the Ninth Circuit, and neither party has contested
the application of the Pasula-Robinette standard. Contrast Cont’l
Cement Co. v. Sec’y of Lab., No. 23-2213, 2024 WL 827782 *3 (8th Cir. Feb.
28, 2024) (acknowledging Commission’s application of Pasula-Robinette
but following the Secretary’s position that the approach “requires but-for
causation.”).

[9] The Judge found
that the way that the operator carried out the termination—with two sheriff’s
deputies present—was “unfortunately embarrassing” and based on information that
may have been unflatteringly conveyed to Ellis. 44 FMSHRC at 746, n.18. The
operator’s use of law enforcement runs contrary to the Judge’s holding that
management did not show any hostility towards Hargis. The Judge noted that
neither Humes nor Williams said anything about Hargis having a history of
violence, and that “such a characterization would be inconsistent with the
testimony of Complainant’s co-workers and the demeaner I observed during the
hearing.” Id. Hargis testified that the presence of law enforcement was
“intimidating” and “embarrassing.” Tr. 338. The Judge found that Ellis made the
decision to have law enforcement present because Williams and Humes told him
that Complainant “normally had a gun on him,” but Williams testified that
although he had seen Hargis carry a gun “at times,” he had never seen him have
one at work. 44 FMSHRC at 746, n.18. This treatment of Hargis not only
displayed hostility towards him generally, but also shows another instance of
upper management making an independent decision with regards to the termination
based on the recommendation of Williams.

[10] In the seminal Chacon
decision, the majority makes clear that the focus of the inquiry is the animus toward
the protected activity, while the dissent states that the focus of the
analysis should be “the existence of employer hostility or animus toward an
employee.” Chacon, 3 FMSHRC at 2524 (Lawson dissenting) (emphasis
added).

[11] Since the Judge
in this case held that the Complainant had not made a prima facie case,
he applied a pretext analysis. Having found that the Judge erred in holding
that no inference of discrimination could be drawn, we now apply an affirmative
defense analysis, which is effectively identical to the pretext inquiry.

[12] Our dissenting
colleague argues that by the term “final” decision, the Secretary means a final
non-appealable decision by the Commission, a United States Circuit Court of
Appeals, or the United States Supreme Court.” Slip op at 27. This argument
exceeds the bounds of the parties’ arguments or the issues before us. In fact,
the Secretary simply noted, “[w]hether temporary reinstatement continues
pending review by a court of appeals is beyond the scope of the supplemental
briefing order.” Sec’y Supp. Br. at 2, n.1. Moreover, the Commission lacks
authority to order a Circuit Court or the Supreme Court to either continue a
temporary reinstatement or dissolve it, once jurisdiction passes to the federal
tribunals. As a result, we need not address this issue here.

[13] According to
section 105(c)(2), if the Secretary finds that a miner’s allegations of
discrimination are “not frivolously brought” the Secretary applies for the
miner’s temporary reinstatement. The Secretary, thereafter, conducts further
investigation, and if she determines that the requirements of section 105(c)
have been violated, she files a complaint of discrimination with the
Commission. 30 U.S.C. § 815(c)(2). In North Fork and Vulcan, the
Secretary initially applied for temporary reinstatement, which the Commission
granted. After further investigation, however, the Secretary determined that
unlawful discrimination had not occurred, and declined to file a section
105(c)(2) complaint. Instead, the miners filed complaints of discrimination on
their own behalf as permitted under section 105(c)(3), which does not provide
for temporary reinstatement. 30 U.S.C. § 815(c)(3). As will be discussed
further below, our dissenting colleague makes this same error in his analysis
by treating the Secretary’s decision not to appeal the merits of this case as
equivalent to those cases where the Secretary determined during the course of
an investigation that no discrimination occurred.

[14] We reject the
operator’s attempts to apply our “abandonment” doctrine to this case. This is
not a situation where a party is attempting to raise an argument on its own
behalf in a reply brief for the first time, nor is it a scenario in which a
party has raised an issue in its petition for discretionary review but then
failed to raise it in its subsequent briefing. See, e.g., Sunbelt
Rentals, Inc., 42 FMSHRC 16, 22 (Jan. 2020).

We similarly reject the dissent’s
characterization of the posture of this case as the Secretary having “dropped
the claim of discrimination.” Slip op. at 27. The Secretary filed briefings on
appeal concerning when the temporary reinstatement ends, but declined to appeal
the Judge’s holding on the merits. There are many reasons why a party may
choose not to appeal a Judge’s decision while still believing in the merits of
the case, including resource allotment, internal analyses on the likelihood of
success, and triaging caseloads. Choosing not to appeal the merits of a case is
in no way equivalent to instances when the Secretary conducts an investigation
and determines that no discrimination occurred. The dissent’s attempts to blur
these lines misunderstands basic elements of how cases proceed before agencies
and courts.

[15] Though the
Commission here ultimately upholds the Judge’s decision, it should be noted the
majority found legal error in the Judge’s discrimination analysis.

[16] Our dissenting
colleague makes much of the fact that the operator has been required under the
law to pay the complainant without receiving work in exchange. However, the
miner was ordered to be temporarily reinstated to work. The operator and
complainant filed a joint motion requesting that the complainant be temporarily
economically reinstated—that is, paid his salary without returning to work—so
the decision to not receive work in exchange for payment was the mutual choice
of the operator and complainant.

[17] In passing the
Act, Congress recognized that “[i]f our national mine safety and health program
is to be truly effective, miners will have to play an active part in the
enforcement of the Act. The Committee is cognizant that if miners are to be
encouraged to be active in matters of safety and health, they must be protected
against any possible discrimination which they might suffer as a result of
their participation.” S. Rep. 95-181 at 5-6. Congress further stated that
“temporary reinstatement is an essential protection for complaining miners who
may not be in the financial position to suffer even a short period of
unemployment or reduced income pending the resolution of the discrimination complaint.”
Id. at 37.

As for operators’ private interests, our
dissenting colleague argues repeatedly that Vulcan has been deprived of large
sums of money during the course of this litigation. Slip op. at 26, n.1. However,
both
the Supreme Court in Brock and the 11th Circuit in JWR defined
the employer’s interest for due process purposes as control of the workforce,
without reference to money. As the Court in JWR observed: “[a]ny
material loss from a mistaken decision to temporarily reinstate a worker is
slight; the employer continues to retain the services of the miner pending a
final decision on the merits.” 920 F.2d at 748, n. 11. Vulcan’s decision to
offer economic reinstatement in this case, wherein Hargis was paid but not
required to work, was voluntary. Vulcan’s voluntary decision to offer money
without demanding labor does not change the due process analysis.

[18] To bolster this
claim, the dissent provides, without citation, figures on the number of
successful temporary reinstatement claims. These unsubstantiated figures do not
appear to include instances where a miner filed a discrimination complaint and,
after the Secretary’s investigation of the matter, determined that it lacked
merit. Furthermore, the Supreme Court has cautioned against using statistics to
prove due process violations, stating, “[b]are statistics rarely provide a
satisfactory measure of the fairness of a decisionmaking process.” Mathews
v. Eldridge, 424 U.S. at 346.

[19] For example, temporary
reinstatement has been denied where the Secretary failed to present any
evidence regarding protected activity. See, e.g., Sec’y on behalf of
of Hagene v. Prairie State Generating Co., et al., 38 FMSHRC 290 (Feb.
2016) (ALJ). Likewise, Temporary Reinstatement has been denied where the
Secretary failed to produce any evidence demonstrating the miner suffered an
adverse employment action. See, e.g., Sec’y on behalf of Bussanich v.
Centralia Mining Co., 22 FMSHRC 153 (Feb. 2000).

[20] The dissent also
repeatedly criticizes the “not frivolously brought” standard as being an unduly
low burden of proof as contrasted with the “reasonable cause to believe”
standard. Slip op at 30, n.7. We note the reviewing courts have consistently
held these standards to be synonymous. See JWR, 920 F.2d at 747; Sec’y
of Labor on behalf of Ward v. Argus Energy WV, LLC, 34 FMSHRC 1875, 1877
(Aug. 2012).

[21] The dissent takes
footnote 11 in JWR out of context. The Court was not conceding that the
two standards were distinct, but rather simply arguing in the alternative to
make a further point about the sufficiency of additional existing procedures
for due process. This is why the Court explicitly found that the two standards
were “strikingly similar” and the “functional equivalent” of each other. Id.
at 747.

[22] It is not
entirely clear why the dissent leans so heavily on the phrase “full and fair
hearing,” which he treats as both a term of art and as possessing a common
sense meaning upon which all reasonable people would agree. Contrary to the
dissent’s repeated assertions, the phrase does little to resolve his concerns,
and instead turns longstanding due process jurisprudence on its head. See,
e.g., Slip op. at 28 (“Due process in litigation ordinarily occurs through a
full and fair hearing during which each party presents witnesses and evidence,
cross-examines witnesses, and makes arguments for its position.”). This, and
similar assertions peppered throughout the dissent, are simply incorrect and
contrary to the cases cited by the dissent. Citing a long line of cases,
the Supreme Court held that “[t]hese decisions underscore the truism that
‘(d)ue process,’ unlike some legal rules, is not a technical conception with a
fixed content unrelated to time, place and circumstances.” “(D)ue process is
flexible and calls for such procedural protections as the particular situation
demands.” Accordingly, resolution of the issue whether the administrative
procedures provided here are constitutionally sufficient requires analysis of
the governmental and private interests that are affected.” Mathews v.
Eldridge, 424 U.S. at334 (citations omitted). In specifically addressing
the issue that so troubles our dissenting colleague—that many administrative
hearings often have a more limited format—the Mathews Court reiterated
“the wise admonishment of Mr. Justice Frankfurter that differences in the
origin and function of administrative agencies ‘preclude wholesale
transplantation of the rules of procedure, trial and review which have evolved
from the history and experience of courts.’” Id. at 348.

[23] The dissent
engages in a similar misreading of the Mine Act and Commission caselaw.

[24] Alternatively,
the Commission may grant review sua sponte within 30 days of the
issuance of a Judge’s decision. 30 U.S.C. § 823(d)(2)(B).

[25] A contrary
approach would create a strange result. Under the operator’s approach, a
Judge’s finding on the merits would be “final” after 30 days for purposes of
temporary reinstatement but would not yet be a final order on the discrimination
complaint because it would still be subject to review by the Commission for
another ten days. A decision is either final or not, it cannot be
both. If the Judge’s issuance is deemed final with respect to both
temporary reinstatement and the merits case after 30 days, this would remove
the statutory 10-day window granted to the Commission under section 113(d)(1)
to decide whether to grant a party’s petition for discretionary review. 30
U.S.C. §823(d)(1).

1 My colleagues in the majority
state that Williams’ knowledge of the April 12 request may be imputed to
management while also emphasizing that Williams recommended Hargis’
termination, implying a motivational connection. Slip op. at 8-9. As the
majority notes, the rationale behind imputing knowledge is to prevent an
operator from “launder[ing]. . . knowledge and animus through a neutral
superior.” Id. at 8, citing Turner v. Nat’l Cement Co. of California,
33 FMSHRC 1059, 1068 (May 2011). Here, as discussed below, nothing in the
record suggests Williams’ recommendation was directed at protected activity. Even
if Williams’ knowledge can be imputed to management, there is no motivation
to impute to management. Nothing in the record indicates an attempt to
“launder” discriminatory intent through a neutral party.

2 See Animus,
Collinsdictionary.com, https://www.collinsdictionary.com/dictionary/english/animus
(last visited Aug. 26, 2024) (“an animating force or underlying
purpose; intention . . . a feeling of strong ill will or hatred.”); Dictionary.com,
https://www.dictionary.com/browse/animus (last
visited Aug. 26, 2024) (“strong dislike or enmity . . . motivating
purpose or intention; animating spirit.”).

3 To the contrary,
Hargis was provided with a panel of physicians in response to his May 12
request. Tr. 513.

1 The operator has
been required to “temporarily reinstate” the losing complainant for more than
three years – more than twenty-two months after the ALJ’s decision denying the
claim and more than nine months after the Commission open meeting. There is no
explanation for the failure to complete this case in a timely manner. The
Commission owes the operator an apology for its neglect of this case. However,
the majority refused to express any regret for its inexcusable nonfeasance
thereby necessitating this footnote. Moreover, we cannot blow off, as federal
bureaucrats are wont to do, $155,000 dollars as if it were pocket change for
private citizens. It is unfortunate that the operator has no means to obtain
redress from the Commission for the Commission’s neglect of the operator’s
rights.

2 The Commission’s
majority holding means it believes that Congress passed a law requiring an
employer that lawfully discharged an employee for misconduct must allow the
employee to work for another thirty (30) days after a determination by the
Commission that the discharge was lawful. This interprets the Mine Act as
creating a statutorily mandated 30 days of continuing work or pay for a fully
adjudicated mal or mis performing worker. That alone is unconstitutional. See
U.S. Const. amend. XIV.

3 The opinion upon
the constitutionality of extending temporary reinstatement after a decision
following a full hearing is not confined to the twenty months between the ALJ
decision and the Commission decision in this case. However, the particular
facts of this case do well illustrate the fundamental unfairness of the
Commission’s approach.

4 Section 105(c)(1)
provides:,

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 any coal or other mine subject to this chapter because such
miner, representative of miners or applicant for employment has filed or made a
complaint under or related to this chapter, . . . , or because such miner,
representative of miners or applicant for employment is the subject of medical
evaluations and potential transfer under a standard published pursuant to this
chapter or has testified or is about to testify in any such proceeding, or
because of the exercise by such miner, representative of miners or applicant
for employment on behalf of himself or others of any statutory right afforded
by this chapter.

30 U.S.C. §815(c)(1).

5 Settlements of
temporary reinstatement claims are not unusual. They are the norm. Faced with
the lowest standard of proof known to the law (a “nonfrivolous” claim), strict
limits on factual review, no credibility determinations, and the virtual
certainty of loss at a temporary reinstatement hearing, operators often choose
to forego the expense of an inevitably futile temporary reinstatement hearing. A review of Commission records by our Librarian and
Docket Clerk for fiscal years 2016 through 2023 shows that the Secretary
requested temporary reinstatement 107 times. Eighty-two were granted. Twenty-four
were settled, withdrawn, or abandoned. Only one was denied. In that case, the
Secretary failed to present any evidence of any protected activity. The
majority, apparently seriously, counters by arguing that operators have a good
chance at a temporary reinstatement hearing. They cite two cases 16 years apart
demonstrating only that every decade and a half the Secretary’s lawyers fail to
allege a critical element necessary for temporary reinstatement. Slip op. at 16
n.19. Further, the majority suggests that it is fine for a business to retain a
former disgruntled employee discharged for misconduct in its workforce for a
number of years. They are untroubled by a business having to “temporarily
reinstate” a disgruntled, non-performing employee for years amid its workforce
or pay for years to avoid disruption of its operations.

6 The majority
attempts to dodge the substantial constitutional questions in this case by
focusing on temporary reinstatement hearings. Then, they go so far as to say
they do not really know what is meant by a full and fair hearing. Indeed, they
respond to a constitutional argument by writing that the phrase “‘full and fair
hearing’ is found nowhere in the Mine Act.” Slip op. at 17-18. Are their views
so radical as to suggest operators are not entitled to full and fair hearings
under the Mine Act or that discrimination hearings are not full and fair? They
cite one case between a union member and his union to support their incredible
claim that the concept of a full and fair hearing is not a well understood or
applied legal concept. In any event, the complainant has not suggested the
hearing was not fair. He suggests the decision was wrong, not that he did not
receive a fair hearing on his claim. The occurrence of a full and fair hearing
is when the constitutional balance shifts in this case.

7 In Jim Walter Resources, Inc. v. Federal
Mine Safety & Health Review Commission,
920 F.2d 738 (11th Cir. 1990), the Eleventh Circuit affirmed the temporary
reinstatement procedures as constitutional and, obviously, did not consider
the circumstances after a full ALJ hearing. The circuit court analogized the
“not frivolously brought” standard to the “reasonable cause to believe”
standard applied by other federal statutes. It conceded “not frivolously
brought” could be interpreted as “less stringent” than a “reasonable cause to
believe” standard but upheld “not frivolous” even if it is a lesser standard. 920
F.2d at 748 n.11. The majority cites this one case for the incorrect
proposition that courts “have consistently held these standards to be
synonymous.” Slip op. at 17 n.20. A “reasonable cause to believe” facially
requires more than a “non-frivolous” claim. Black’s Law Dictionary defines a
“frivolous claim” as “a claim that has no legal
basis or merit, esp. one brought for an unreasonable purpose such as
harassment.” Claim, Black’s Law Dictionary (12th ed. 2024). When no
credibility determinations may be made and no factual determinations may be
made, it is inevitable that, unless a complainant fails to allege a necessary
element such as adverse action, the claim must almost always be found
“non-frivolous.”

Worse
yet, the circuit court referred to a temporary reinstatement hearing as a “full
evidentiary hearing.” 920 F.2d at 747. It is clearly incorrect to refer to a
hearing at which neither credibility determinations nor factual findings may be
made as a full hearing. A hearing at which a party may speak but the Judge may
not listen is not a full hearing. In any event, this case deals not with
temporary reinstatement procedures but whether “temporary reinstatement”
achieved hastily through a seriously compromised procedure may continue after a
full and fair hearing results in a considered decision adverse to the
complainant.

8 The Court
referred to delay “in holding post-reinstatement evidentiary hearings.” 481
U.S. at 267. Here, we consider the constitutionality of continuing payments after
that evidentiary hearing. It is not an excuse to claim that this case
presents an extraordinary delay. The central point is that after a full
adjudicatory hearing both parties have received due process. Think of a
balance. On one side there is an expedited decision after an almost
non-existent, summary, and expedited hearing without any credibility
determinations and without any findings on disputed facts. On the other side,
there is a fully adjudicated decision after discovery, credibility judgments,
and findings on all the facts. Surely, the constitutional balance swings to the
adjudicated hearing.

9 The majority
inserts a long passage apparently premised upon the false thought that the due
process issue here is the time between the ALJ’s decision and the issuance of
the opinion in this particular case. Certainly, that could be argued. However,
as stated repeatedly, the primary issue here is the balance of rights after the
ALJ hearing. Moreover, if the argument did turn upon the palpable neglect of
the Commission, the majority makes the argument that the parties did not brief
the issue. Slip op. at 18. The parties hardly could brief constitutional issues
raised by Commission’s neglect before it occurred. Certainly, no one could
argue that the Commission has considered this case in a “timely” manner in this
case. Armstrong v. Manzo, 380
U.S. at 552;
Mathews v. Eldridge, 424 U.S. at 334.
This claim by the majority is of a kind with its claim that there is no
commonsense meaning of a full and fair hearing. As the Supreme Court has
explained, the commonsense meaning is a hearing at a meaningful time and in a
meaningful manner. The nature of the required hearing may vary by the
circumstances. However, no-one could argue that the ALJ hearing in this case
was not a full and fair hearing. The Commission is not a “gatekeeper,
preventing meritless appeals.” Slip op. at 18-19. If the Commission does not
take an appeal, the appellant has a right to appeal to a United States Circuit
Court of Appeals.

10 In this case,
rather than fight the Secretary’s demand for continued temporary, the operator
has continued to make reinstatement payments for more than a year after the ALJ
decision.

11 In Bernardyn,
the Commission found that section 113(d)(1) of the Mine Act governs when a
discrimination order becomes final for the purposes of determining when
temporary reinstatement ends. Sec’y ex rel.
Bernardyn v. Reading Anthracite Co., 21
FMSHRC 947, 949 (Sept. 1999). The Commission, in that case, did not
address the language contained in section 105(c)(2) and, as such, is not
relevant to the issue currently before the Commission. However, to the extent
that Bernardyn deviates from the Act, it should be overturned.

12 It bears
repeating that an Assistant Secretary for Mine Safety and Health head of MSHA
acknowledged in an addendum to his congressional testimony that temporary
reinstatement is only effective “until the ALJ rules on the merits of the
miner’s discrimination complaint. Increasing
MSHA and Small Mine Cooperation: Hearing Before the Subcomm. On Employment,
Safety, and Training of the Senate Committee on Health, Education, Labor, and
Pensions, 106th Cong. 174 (Comm. Print 1999).