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

Read the official release (fmshrc.gov)

Plain-English summary

Jason Hargis injured his back while handling crusher liner plates at Vulcan's Wilson County Quarry and was placed on restricted duty. Judge Young held that the injury was reportable because Hargis could not perform all his duties and management knew of that limitation, and he assessed a $300 penalty for failing to report it. The Judge also found that asking to see a doctor for a mine injury was protected activity. He nevertheless dismissed the discrimination complaint because Vulcan had already begun terminating Hargis under its progressive-discipline policy for repeated cleaning and greasing failures before the decisionmakers learned of the final medical request. The Judge dissolved temporary reinstatement when he issued the decision. The Commission later affirmed the reporting violation and ultimate discrimination dismissal, but held that the Judge erred in finding no motivational nexus and vacated the immediate dissolution of reinstatement.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.2(e) and 50.20(a); 30 U.S.C. § 815(c)(1)
• Outcome: The reporting citation was affirmed with a $300 penalty, while the discrimination complaint was dismissed and temporary reinstatement was dissolved.
• Subsequent review: The Commission affirmed the citation and dismissal but vacated the immediate end of reinstatement in se-2021-0163-commission.
• Key point: Restricted duty made the injury reportable, while the Judge found the existing progressive-discipline process defeated the discrimination claim.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202 434-9987 / FAX: 202 434-9949

December
1, 2022

SECRETARY OF
LABOR

MINE SAFETY AND
HEALTH     

ADMINISTRATION
(MSHA),

and JASON
HARGIS,

Complainants,

v.

VULCAN
CONSTRUCTION

MATERIALS, LLC,

Respondent.

SECRETARY OF
LABOR

MINE SAFETY AND
HEALTH     

ADMINISTRATION
(MSHA),

Petitioner,

v.

VULCAN
CONSTRUCTION

MATERIALS,
LLC,

Respondent.

DISCRIMINATION
PROCEEDING

Docket No.
SE 2022-0001

MSHA No.
BARB-CD-2021-02

Mine ID.
40-00131

Mine: Wilson
County Quarry    

CIVIL
PENALTY PROCEEDING

Docket No. SE
2022-0013

A.C. No.
40-00131-543032

Mine: Wilson
County Quarry

DECISION
AND ORDER AFTER HEARING

Appearances:               Christopher
M. Smith, Esq., Office of the Solicitor, U.S. Department of Labor,

Nashville,
Tennessee, for the Petitioner

Elaine
M. Youngblood, Esq., Ortale Kelley,

Nashville,
Tennessee, for the Complainant

Margaret
S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC,

Washington,
District of Columbia, for the Respondent

William K. Doran, Esq., Ogletree, Deakins, Nash, Smoak
& Stewart, PC,

Washington,
District of Columbia, for the Respondent

Before:  Judge Young

SUMMARY

Citation No.
9237452, 30 C.F.R. § 50.20(a): Failure to report an occupational injury as
defined in 30 C.F.R. § 50.2(e). The Secretary alleges that the operator
failed to report an injury that rendered the miner unable to perform all job
duties on any day after the injury.

Fact of violation          Affirmed                                             p.
15 (Slip Op.)

Negligence                  High                                                    p.
18

Penalty                                    $300.00                                               p.
18

Complaint
BARB-CD-2021-02, 30
U.S.C. § 815(c)(1): Discrimination against miner for exercise of rights
protected under the Mine Safety and Health Act of 1977, as amended (“The Mine
Act” or “The Act.”).
The Secretary alleges that Complainant was terminated for requesting to see a
physician for treatment of an occupational injury, in violation of the Act.

Fact of violation          Dismissed                                            p.
18

INTRODUCTION

The
above-captioned dockets were heard in Nashville, TN, April 12–14, 2022. [1] The Secretary
alleges that the operator had failed to report an occupational injury, in
violation of Section 50.20(a) of Title 30 of the Code of Federal Regulations, and
that the operator had discriminated against miner Jason Hargis (“Complainant”) for
reporting his injury and requesting treatment by a physician, in violation of
Section 105(c)(1) of the Mine Act. As explained below, I affirm the citation
for failing to report an injury as required, but I hold that the operator did
not discriminate against the Complainant under Section 105(c) of the Act.

I.          STANDARDS

A.        Burden
of Proving Violation

The
Secretary must prove the elements of an alleged violation by a preponderance of
the evidence. See Jim Walter Res., Inc. , 28 FMSHRC 983, 992 (Dec. 2006);
RAG Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000).

B.        Requirement
to Report an “Occupational Injury”

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 reassignment to other duties, or transfer to
another job.” 30 C.F.R. § 50.2(e) (2022). Operators “shall report each
accident, occupational injury, or occupational illness at the mine.” 30 C.F.R.
§ 50.20(a) (2022).

C.        Discrimination

To
prove that an operator has discriminated against a miner in violation of the
Act, the Commission has required the Secretary (or an individual miner or
applicant, if proceeding under section 105(c)(3)) to establish that the miner
engaged in protected activity; that the miner suffered an adverse job action;
and that the adverse action was motivated, in whole or in part, by the
protected activity. Sec’y of Labor on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2799–80 (Oct. 1980), rev’d on other grounds sub nom. , Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir. 1981) ; see also
Cumberland River Coal Co. v. FMSHRC , 712 F.3d 311, 317–18 (6th Cir. 2013)
(citing Pendley v. FMSHRC , 601 F.3d 417, 423 (6th Cir. 2010) (applying Pasula-Robinette
to cases within the Sixth Circuit). [2] If this prima facie case is established, the
operator may affirmatively defend against the charge of discrimination by
proving that it would have taken the adverse action regardless of the miner’s
protected activity. Id. The miner may then rebut the defense by showing
that it is pretextual. Id. The ultimate burden of proof does not shift
under this analysis and remains with the Complainant. Turner v. Nat’l Cement
Co. of Cal. , 33 FMSHRC 1059, 1064–65 (May 2011).

II.        FACTS

A.                
Background,
Witnesses, and Evidence

Respondent, Vulcan
Construction Materials (“VCM” or “Respondent”), operates numerous aggregate and
construction material mining, quarrying, and processing facilities throughout
the United States. The mine at issue here is the Wilson Quarry, an aggregate
facility in Wilson County, TN. Respondent’s operations in the area including
the Wilson Quarry include seven quarries and a truck shop. Tr. 502:1–4. Complainant
had been employed as a miner at the Wilson Quarry.

The parties
stipulated to all facts necessary to establish jurisdiction over this case and
my authority to hear and decide it. S. Post Hr’g Br. at 3–4 (July 5, 2022). They
also stipulated that Respondent discharged Complainant from employment on May
12, 2021. Id. at 4.

The
Secretary called as witnesses Complainant, several of his co-workers at the
mine, and two employees of the U.S. Department of Labor’s Mine Safety and
Health Administration (“MSHA,” “the Secretary” or “the Agency”). Complainant
also called Respondent’s safety director, Brandon Clemmons. Respondent’s
witnesses included Vulcan’s area operations manager for the area including the
Wilson Quarry, Philip Ellis; Mr. Clemmons; the company’s human resources
manager, Rex Lindsey; former plant manager, Anthony Humes; and current
supervisor, Chris Williams.

In addition to the
miner witnesses who testified at hearing, Complainant introduced two statements
made to MSHA Special Investigator Kenneth McClung. The witnesses, former miners
Kenny Hurst and Pat Woods, were subpoenaed by the Secretary. See Tr.
474:8–488:20. [3]

The Secretary
appears to have properly issued and served subpoenas for these witnesses but
did not inform the Court that they were unavailable until the Solicitor sought
to introduce their written statements as exhibits. The Solicitor said that
efforts to reach the witnesses had been unsuccessful. These hearsay statements
were admitted over Respondent’s objections. However, I noted that the
unavailability of the witnesses could affect the weight I would give to the
statements. Tr. 480:17–22, 482:6–9.

I credit the
statements only to the extent that they are corroborated by other evidence and
are not cumulative. First, there is hearsay within hearsay in some of the
material statements made by the declarants. Second, some of the persons quoted
in those statements were witnesses at the hearing and available to be
cross-examined, but neither the Solicitor nor the Complainant produced
admissions from the operator witnesses, and even the use of leading questions
did not produce full support for the Secretary’s theory from miner witnesses.

Third, the
statements chosen by the Secretary for emphasis in his post-hearing brief were
not the focus of the somewhat limited questioning of Special Investigator
McClung. This prevented the operator from effectively cross-examining the
witness who was present about the statements.

Finally, there was
extensive discovery in this case. Uncorroborated statements purporting to show
a general discouragement of reporting injuries or alleged targeting of Complainant,
based largely on the subjective “personal belief,” speculation, or sweeping
generalizations of Mr. Hurst and Mr. Woods, is insufficient to counter the
weight of the evidence that was gathered beforehand and presented by actual
witnesses at the hearing.

Complainant was
represented by an attorney from the Department of Labor’s Office of the
Solicitor as well as his own attorney. The parties introduced numerous exhibits
during the three-day hearing. I have carefully considered all the evidence
admitted at the hearing in deciding the issues before me. [4]

B.                 
Complainant’s
Employment, Injury, Protected Activity, and Termination

1. Complainant’s
   Work and Disciplinary History

Complainant was
employed by VCM at the Wilson County Quarry from August 2018, until he was
discharged on May 12, 2021. Compl. ¶ 3 (Oct. 1, 2021); Tr. 11:3–12.  He mainly
worked as a plant operator during the time relevant to this proceeding. Tr.
305:24–25. As plant operator, he controlled the operation of the plant, the
crushing machinery used to break and size rocks mined at the quarry. Id.
at 306:3–25. He was also responsible for cleaning and maintaining an area
assigned to him under the company’s “zone” policy. Id. at 348:22–24. As
part of his duties, he was responsible for lubricating, or “greasing” the
bearings daily. Id. at 415:1–11.

At hearing, miner
witnesses praised Complainant’s performance, testifying that he “did a good
job” running the plant and that he was a highly efficient plant operator. Tr.
60:21. Mr. Ellis, VCM’s area manager, agreed that Complainant operated the
plant during its most productive period. Id. at 599:4–12.

Witnesses also
testified that Complainant had a pleasant personality. One witness called him
“one of the nicest guys I’ve ever met.” Tr. 222:2–3. Another witness said he
was a “normal, regular person,” who was “not threatening” and always pleasant. Id.
at 144:13–17. A third witness described him as “a big teddy bear” and “a pretty
cool guy.” Id. at 261:5–6.

During his
employment as plant operator, Complainant worked under two direct supervisors, Kyle
“K.B.” Parr and Chris Williams, who worked as a fill-in supervisor following Mr.
Parr’s resignation. As plant manager, Anthony Humes managed the plant
supervisors and was himself supervised by Area Manager Philip Ellis. At
hearing, Complainant testified that Mr. Parr was a poor supervisor and that the
miners felt “targeted” by management (micromanagement and disagreement with
miners’ complaints about it). Tr. 367:14–18.

Miners also
generally agreed with Complainant’s assessment of Mr. Parr as someone who did
not know what he was doing. They testified that Mr. Parr was constantly urging Complainant
to “run the plant hard,” and noted that Complainant’s discipline from Mr. Parr
for failure to clean was imposed while the plant was old and in poor condition,
causing constant leakage (although repairs were made to improve this). See
Tr. 243:6–22 (testimony of Mr. Stultz).

Complainant
acknowledged that greasing the equipment daily, which took about 35 minutes,
was his job and that it was necessary to prevent damage to the equipment. Tr. 415:1–20.
He said that he had been counseled about the need to clean more thoroughly,
that he disagreed with Mr. Parr about this, and that he did not change what he
was doing in response to Mr. Parr’s input. Id. at 408:18–409:17.

Complainant also
testified about his employment record. He said that he had been given a pay
raise in April of 2021, shortly before being terminated. Tr. 343:20–24. [5] He also
testified about a previous injury. Complainant said he had been hurt on the job
while operating a skid steer. He testified that Mr. Ellis and Mr. Clemmons were
both personally concerned, investigated the incident, and put Complainant on
light duty. Id. at 326:14–327:14. [6]

Mr. Clemmons said
this was done because the plant was down for maintenance and not because Complainant
could not perform his duties. Tr. 466:25–467:4, 739:22–740:7. Complainant also
said that Mr. Clemmons had asked him what they could do to keep him from going
to the doctor after the skid steer injury. Id. at 324:25–325:8. Mr.
Clemmons denies saying this. Id. at 740:8–10.

Before his
discharge, Complainant had previously been disciplined under 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. Ex. GX-7, 8. The second written warning provides that the employee
may be terminated for any subsequent violation of company policies. Ex. GX-8.

Complainant’s
disciplinary issues were not related to his primary duties as plant operator. Rather,
they stemmed generally from failures to completely clean and grease areas and
equipment for which he was responsible before leaving work.

Complainant
received his first written warning by Mr. Parr on Dec. 4, 2020. Tr. 347:8. He
wrote on the warning notice, “I do not agree,” and testified that he had told
Mr. Parr it was not possible to clean his area “spotless” every day. Id.
at 348:2–349:11. He said that sometimes the power would be shut down, and
cleaning could not be accomplished. He also noted that some areas were rarely
travelled. Id. at 349:12–25.

After
he was cited by Mr. Parr, Complainant and others began taking photographs of
their areas to document that they had been cleaned. Ex. GX-5; Tr. 207:11–25,
351:13–16. Complainant provided photographs at hearing. Ex. GX-5. He admitted,
on cross-examination, that he did not take photographs of his area every day. Tr.
413:17–25. [7]
Complainant testified that it was “obvious that [Mr. Parr] used this to start a
paper trail to terminate me.” Id. at 355:15–17.

Complainant
received his second written warning on Feb. 8, 2021, for leaving work before
the end of the shift without permission on Feb. 1. Complainant and other
witnesses who were on the crew testified that on that day, Mr. Williams had
stopped to talk to them and had told them that they could leave once the
graduation pad was cleaned. Id. at 365:15–23. Witnesses said that
finishing the cleaning of the pad was a two-person job. Id. at 168:14. The
truck used for this purpose employed a high-pressure water cannon, and miners
in the area not handling the cannon or in the truck could be in danger of
injury. Id. at 359:8–11.

Complainant and
Mr. Evans left before the crew completed its work cleaning the pad, and all
four miners left before 4:30 p.m. Tr. 247:15–16. The miners who remained said
that they completed the cleaning job. Id. at 249:16–17. Complainant was
nevertheless given his final written warning and a three-day suspension. Id.
at 356:24–357:2; Ex. GX-8. Complainant testified that there was no known policy
requiring miners to leave together prior to February 2. Tr. 365:5–8. He said
that he waved to Mr. Humes, his second-level supervisor, as he left. Id.
at 361:1–9. [8]

Mr. Humes acknowledged
seeing Complainant leave and waving to him, but he said he did not know what
Mr. Williams had told the crew and would have stopped him if he had known. Tr.
621:13–622:12. Clint Evans was also on the crew and was threatened with a
verbal warning but disputed it, and it was withdrawn after he argued to Mr.
Williams that nobody had told the crew there was a set schedule. Id. at
169:5–16. [9]

Mr.
Williams disputed the crew’s account of events and said they had not finished
cleaning the area as he had instructed and that he had to clean it himself. Tr.
768:7-8, 769:4–14. [10]
The next day, Mr. Williams told Mr. Humes that the miners had left early
without cleaning the area and that Complainant had left work early, and he
testified that he communicated his “frustration” to Mr. Humes. Id. at
769:18–23.

Mr. Humes said Mr.
Williams told him the crew had been told not to leave until 4:30. Tr.
621:25–622:2. He said Mr. Williams was “kind of adamant” about wanting
Complainant and Mr. Evans to be disciplined. Id. at 624:1–6. He insisted
on meeting with human resources, and after he and Mr. Humes met with HR, the
notice of suspension was prepared and overnighted to Mr. Humes, who gave it to
Complainant the next day. Id. at 624:8–14.

While Complainant
disagreed with the disciplinary actions against him and his supervisors’ views
on cleaning and greasing, Respondent produced evidence supporting its reasons
for taking seriously the zone cleaning and greasing responsibilities assigned to
Complainant. MSHA Special Investigator McClung acknowledged that a violation of
the requirement to keep areas where miners work and travel clean and free from
debris, codified as a mandatory safety and health standard, 30 C.F.R. § 56.20003
(2022), [11]
could result in an S&S citation to the operator. Tr. 490:7–491:5.

Operator witnesses
also testified about serious damage to the plant machinery caused by a failure
to properly grease the equipment. There was a “catastrophic” failure of the
rotor bearings in November 2020. Tr. 546:15–547:21. This required a “very
costly” and extensive repair. Id. Inspection revealed that the bearings
were “charred and smoked” due to a lack of grease. Id. at 547:17–21. Respondent
attributed the failure to Complainant. Id. at 547:15–17, 615:1–14.

2. Management
   Issues at the Wilson Quarry

Mr. Parr was the
plant supervisor until he resigned from VCM. Mr. Humes was the plant manager during
Complainant’s employment through his termination, until being terminated
himself. Mr. Humes testified at the hearing, and Mr. Parr did not.

Complainant
complained about management generally, saying that Mr. Parr had “no clue” about
plant operations, and that the miners generally felt “targeted” by
micromanagement and disagreement with miners’ complaints about it. Tr. 367:14–18.
Complainant, like other miners, said that Mr. Parr had threatened to replace
him and testified about Mr. Humes threatening to fire and replace the entire
crew. Id. at 368:4–5.

The miner
witnesses who testified also complained generally about Mr. Humes and Mr. Parr.
Their testimony about Mr. Williams, who succeeded Mr. Parr at the Wilson Quarry
after being temporarily reassigned there from another VCM operation, was
generally positive.

Miners criticized
Mr. Parr’s ability as a manager. Andrew Tucker said Mr. Parr didn’t know what
he was doing. Tr. 59:2–11. Mr. Dycus characterized him as a “write-up happy
person” who would try to “write people up for anything and everything.” Id.
at 207:3–8. Mr. Stultz said he was a “very bad man.” Id. at 241:23. [12] Mr. Tucker said,
“I think at one point in time, we all felt targeted” by Mr. Parr, id. at
65:14, and that he thought Mr. Parr was trying to create a “paper trail”
against Complainant, id. at 64:24–25. He could not recall anything else
that he would characterize as Respondent “targeting” Complainant. Id. at
65:16–19.

Mr. Dycus also testified
that it “seemed” like Mr. Parr was targeting Complainant. Tr. 242:18–20. But he
also said, “I believe that during that time period, every person was targeted
by Anthony Humes.” Id. at 256:13–15.

Mr. Tucker also testified
that Mr. Parr had asked him to falsify a document, Tr. 61:3–12, [13] and that he
believed Mr. Parr falsified the document himself, and witnesses generally
believed he had resigned after the company opened an investigation into the
incident. Id. at 113:19–114:7. Mr. Tucker discussed the incident in
detail with Mr. Ellis, who said Mr. Parr resigned, and that he assumed that Mr.
Tucker’s complaint had been accurate. Id. at 570:17–571:19.

After Mr. Parr
resigned, Anthony Humes assumed his duties. Miners were unhappy with him as
well. Mr. Tucker said he first reported Mr. Parr’s request to falsify the
examination report to Mr. Clemmons because he said he did not trust Mr. Humes
to act on them. Tr. 75:5–24. However, he also said his disagreements with Mr.
Humes were never about safety, and that Mr. Humes never asked him to do
anything unsafe. Id. at 101:8–13.

Mr. Tucker and several
other miner witnesses cited an incident in which Mr. Humes told the workforce
that he would “fire everybody and start over himself.” Tr. 64:1–21. He was
characterized by Mr. Ellis and Mr. Lindsey as not being a good fit for the
company. Mr. Ellis cited the company’s desire to move to more “positive,
coaching style” of management, and that Mr. Humes’ focus on criticizing miners and
style of communicating was “not appropriate.” Id. at 566:1–14. He also
cited input received directly from Mr. Stultz, in particular, about Mr. Humes’
management. Id. at 567:20–25. Mr Ellis also testified about an incident
in which Mr. Humes had said something inappropriate over the company radio. Id.
at 568:7–11.

Mr. Ellis also
cited several calls from miners and from Mr. Lindsey after Mr. Humes threatened
to fire the whole workforce. Tr. 569:1–570:15. Mr. Humes was counseled and
apologized for those remarks. Id. at 570:10–15. After Mr. Ellis was told
about the radio incident, Mr. Ellis consulted with Mr. Lindsey and others in
the company and made the decision to terminate Mr. Humes in July of 2021. Id.
at 565:1–22.

While miners
criticized Mr. Humes, they did not all agree that he was “targeting Complainant.”
See Tr. 85:24–86:5, 111:10–14 (testimony of Mr. Tucker); id. at 125:32–136:4
(testimony of Caleb Walker that Mr. Humes was reportedly out to fire him and
Mr. Tucker). But Mr. Dycus testified that Mr. Humes had told him, while Complainant
was on medical leave, that he would be replacing Complainant as plant operator.
Id. at 208:17–24.

Mr. Dycus said his
experience with Mr. Humes was “horrible.” Tr. 219:15. Mr. Stultz said of Mr.
Humes, “To be quite frank, he was a jerk.” Id. at 257:22–25. He said he
had felt personally targeted by Mr. Humes and had complained about him to
senior management. Id. at 258:1–4.

Other miners were
apparently comfortable complaining to management about their supervisors. Mr.
Tucker said he contacted the company’s HR manager and Mr. Ellis after Mr. Humes
threatened to fire everybody. Tr. 148:12–22. Mr. Tucker complained to Mr.
Clemmons and Mr. Ellis about Mr. Parr’s pressuring him to falsify an
examination report.

Mr. Williams was
brought to the Wilson Quarry and assumed supervisory responsibility over the
plant. Miners were “not happy” with the “zone” policy holding them accountable
for a particular area, Tr. 102:25–103:13, but they generally respected and got
along with him. See id. at 103:5–7 (testimony of Mr. Tucker). Miners
agreed that he was trying to improve housekeeping and plant maintenance. See
id. at 104:11–105:24. Mr. Dycus said Mr. Williams was a “great supervisor.”
Id. at 219:14–23. Mr. Stultz was also complimentary. Id. at 259:5–8.

Mr. Ellis also praised
Mr. Williams. When asked what he thought about Mr. Williams as a supervisor,
Mr. Ellis testified:

I think Chris Williams is a great
person. He -- he cares about the people that work for him. He likes to help
people out. His style is leading by example. He -- in some instances, he's
probably too involved. He gets into every issue and -- but I think Chris to be
in a lot of ways a manager like I am suggesting Vulcan wants to encourage.

Tr. 572:3–15.

While they were
critical of their supervisors, the miner witnesses generally testified that
Respondent was a safety-conscious operator. See Tr. 79:13–16 (testimony
of Mr. Tucker saying the company’s “biggest goal is to work safe and stay
safe,” and that the company did not have any major injuries during his seven
years at the quarry). This included Complainant, who agreed that the “company,
as a whole, if you brought up anything safety-wise that was dangerous, they
would address them [sic] as quickly as they could.” Id. at 397:25–398:2.

No evidence was
introduced from which one could infer that any miner had ever been disciplined
by Respondent for anything related to safety. On the contrary, Mr. Dycus said
that Mr. Parr and Mr. Humes spread rumors about him having called MSHA to “stir
up trouble,” but that he was never disciplined for anything, although he did
leave his job at the Wilson Quarry. Tr. 195:15–199:15.

Miner witnesses speculated
that miners were put on light duty or sent to the break room to avoid reporting
injuries. See Tr. 199:22–200:5 (testimony of Mr. Dycus); id. at 117:3–16
(testimony of Mr. Tucker). But there was testimony that this was used to see if
the injury would get better, and that it was assumed that a miner would see a
doctor if it did not. See id. at 130:23–131:8 (testimony of Mr. Walker).

3. Complainant’s
   Injury, Request to See a Physician, and Discharge

Complainant
testified that he was injured on Saturday, April 10, when passing liner plates
to a co-worker, Andrew Tucker, who was working inside the crusher. Tr. 314:4–19.
The plates weighed 35–50 pounds each, and Complainant had to reach, lean, and
twist to pick up the plates and pass them into the crusher for installation. Id.
at 315:3–16.

After completing
his work with the crusher plates, Complainant said he mentioned to Chris
Williams, his direct supervisor, [14]
and Mr. Tucker that “something really hurt” in his back, but he did not
immediately report an injury. He said that the injury, when it occurred, was
“not immediately debilitating,” and that he did not think it was serious at
first. Tr. 314:14–316:6, 425:6–9.

Complainant
said that he reported to Mr. Williams on Monday, April 12, that his injury was
more serious than he thought, and that it was not responding to heat and ice. Tr.
316:11–25. He said he told Mr. Williams at this time that he needed to see a
doctor, and that Mr. Williams told Complainant he “would get it turned in” to
upper management. Id. at 317:6–20. Complainant further testified that
Mr. Williams instructed him to “run the plant and do nothing else” that
afternoon. Id. at. 317:22–24.

On April 14, his
last day of work before medical leave for his cardiac procedure, Complainant
had a text message exchange with Mr. Clemmons. Mr. Clemmons asked about Complainant’s
condition, and Complainant replied that his back still hurt, and that Mr.
Williams had told him to only run the plant and to do nothing else. Ex. GX-9. Mr.
Clemmons acknowledged Complainant’s response. Id. Complainant testified
that his injury made running the plant uncomfortable and that other tasks, such
as cleaning and greasing, were “very painful” to “unbearable.” Tr. 323:2–12.

On
direct examination, Complainant testified that the operator was striving for
“zero [reportable] incidents,” and that there was a general sense that
reporting injuries was discouraged. Tr. 328:4–14. He said that miners “were
discouraged from reporting any type of injury” short of profuse bleeding or
broken bones. Id. at 324:8–17.

In
contrast, Mr. Clemmons testified about a number of documented cases in which a
miner had been injured and had requested to see a doctor after that proved
ineffective. See generally Tr. 732–737; Ex. R-P. The accidents were
reported to MSHA. Id. None of the miners involved were disciplined for
requesting to see a physician. Id.

While
still feeling the effects of his injury, Complainant took medical leave for an
unrelated cardiac catheterization procedure. Tr. 380:1–2. He was on leave for
two weeks, beginning on April 15, before returning to work on May 4. Id.
at 379:19–24. Complainant was thus only at work for two days before a two-week
absence for his cardiac procedure and the recovery prescribed by his
cardiologist.

While Complainant
did not see a physician for his back injury, he did seek treatment while on
medical leave from a chiropractor, who recommended he see a doctor. Tr. 385:7–17.
Complainant said the chiropractor took x-rays and told him he had a muscular
injury to his thoracic spine. Id.

After returning
from medical leave on May 4, Complainant said he recalls reporting to Mr.
Williams and Mr. Humes that the pain from his injury was still interfering with
his job duties but does not recall talking with Mr. Ellis. Tr. 382:5–12. Complainant
said the operator took no further action to address the effects of his
workplace injury. Id. at 382:14–25.

He routinely saw
Mr. Williams and Mr. Humes in the company’s morning meetings. Tr. 331:1–19. As
part of those meetings, employees were encouraged, but not required, to stretch
their major muscle groups before working. Id. at 330:6–8. Complainant’s
injuries prevented him from participating. Id. at 330:17–25.

Complainant
testified that he told Mr. Williams, Mr. Humes, and his co-workers that he was
still unable to fully perform all his duties without pain, and that Mr.
Williams and Mr. Tucker helped the cleaning and lifting parts of his job. Tr.
382:8–383:9. However, in his Complaint to MSHA, Complainant said that he did
not often ask for help because he could get most of the cleaning done with a
water hose. Id. at 433:3–13; Ex. R-T.

He
also testified that he told Mr. Clemmons, while the plant was shut down due to
a vandalism incident on May 8, that his back was still hurting. Tr. 383:16–384:2.
When Mr. Clemmons asked if it was from April, Complainant said that it was, and
that he wanted to see a doctor, id. at 384:2–5; “[a]t which point, he
did not respond to me at all. He just drove away.” Id. at 384:5–6. [15] Mr. Clemmons
denies that Complainant ever told him he needed to see a doctor. Id. at
748:9–21.

Mr. Williams and
Mr. Humes testified that Complainant was not completing his assigned duties as
required. Mr. Humes testified that Complainant and Mr. Walker were not cleaning
their zones fully and were leaving hazards behind for the next morning. Tr.
612:15–613:14. This was discussed in “toolbox talks” and then with the miners
one-on-one. Id.

Mr. Humes said Mr.
Williams recommended Complainant be terminated for not cleaning his area and
greasing the plant, and for leaving work without telling anyone these tasks had
not been completed, on May 10 and 11. Mr. Humes said Mr. Williams reported the
conditions to him on both days, that Mr. Williams cleaned the area and greased
the plant on the morning of May 10, and that Mr. Humes personally went to the
area to inspect on May 11, after Mr. Williams told him Complainant had again
not cleaned the area. Id. at 630:17–631:3.

Mr. Humes called
Mr. Ellis and explained the issue to him on the morning of May 11. He recommended
Complainant be terminated because of failure to improve his cleaning and
greasing performance. Tr. 631:9–14.

Complainant
testified that he finally told Mr. Williams, after the morning meeting on May
12, “I’ve put up with this as long as I am going to. I
need to see a doctor today.” Tr. 332:1–3. [16]
He said Mr. Williams’ response was, “I will let them know.” Id. at 332:8–9.
After the morning meeting, Mr. Williams called Mr. Humes and told him
Complainant had requested to see a doctor, and Mr. Humes relayed this to Mr.
Ellis. Id. at 632:23–633:5.

Respondent’s
witnesses testified about its plans to terminate Complainant on May 12, based
on Mr. Humes’ recommendation the previous day. Tr. 508:20–509:17. In
anticipation of the meeting, Mr. Ellis prepared written notes, which he
intended to use as a script for the termination meeting, and contacted Mr.
Lindsey, who also prepared for the meeting. Id. at 520:7–21. They
intended for Mr. Williams to bring Complainant to the office after the morning
meeting so they could tell him he was being discharged.

However, when
Complainant asked to see a physician, Mr. Williams instead allowed Complainant
to go to the plant to begin his shift. He then contacted Mr. Ellis and told him
Complainant had requested to see a doctor. Mr. Lindsey said that Mr. Williams
had to “pivot” from the original plan, and that he and Mr. Ellis decided to
discuss the situation with risk management, which handles workers’ compensation
and liability issues for VCM. Tr. 671:13–672:11.

Mr. Ellis and Mr.
Lindsey discussed the situation and contacted Mr. Clemmons and Andi Romano,
Respondent’s risk management officer. Tr. 682:22–683:14. After conferring, they
decided to proceed with the termination, but to also provide Complainant with a
list of physicians, as required by Tennessee workers’ compensation law. Id. [17]

Mr. Ellis said he did
not know Complainant had requested to see a doctor for his injury until the
morning he was to be terminated, after the decision had been made. Tr. 509:23–25.
He assumed that the request was for a new injury. Id. at 512:24–513:2.

Mr.
Ellis also said that Respondent requested law enforcement officers be present
during the termination. He said this decision was made based on input from Mr.
Williams and Mr. Humes about Complainant possibly having a history of violence
and gun possession and his reaction to previous discipline. Tr. 526:5–527:13. [18] Mr. Humes
testified that Mr. Williams told him Complainant “normally had a gun on him.”

Complainant said
that Mr. Humes called him later that morning and said the company was trying to
get him a doctor in Lebanon. Tr. 333:15–20. He said that he also spoke with Mr.
Williams, who told him he was bringing a replacement to operate the plant so Complainant
could go to the doctor. Id. at 334:8–15. Instead, Complainant was taken
to the area outside of the mine’s offices, where Mr. Ellis, Mr. Humes, and two
Wilson County deputy sheriffs were waiting. Id. at 335:24–336:4. The
group summoned him, and Complainant was informed that he was being terminated
“due to a couple of previous write-ups and
poor performance.” Id. at 336:12–15.

Rex
Lindsey, the company’s area human resources director, was on the phone during
the meeting. Tr. 337:9–14. He informed complainant of the “finer points” relating
to his termination, including Complainant’s last-chance notice. Id. at
337:21–338:5. Mr. Ellis did give complainant a list of doctors that he could
see for his injury. Id. at 338:19–25. The form, Ex. GX-6, indicated that
complainant had suffered an occupational injury. Respondent did not report the
injury to MSHA until after it had been cited for failing to do so. See id.
at 446:10–15, 468:24–469:1.

III.       Disposition

A.                
Respondent
Failed to Timely Report an “Occupational Injury” to MSHA.

1. Finding
   of Violation

Complainant was
injured while performing maintenance on the operator’s crushing plant. I credit
his testimony that he felt pain while handing 35–50-pound liner plates to Mr.
Tucker, who was working to install the plates inside the machine. Tr. 314:4–19.
While Mr. Tucker testified that he does not recall Complainant saying that day
that he had injured himself, Complainant claims that he told Mr. Williams about
the injury in passing that day and reported it to him again on Monday, April 12.
Id. at 315:14–316:3.

The nature of the
injury and the operating environment do not support a finding that Complainant
clearly reported an injury on Saturday, April 10. However, I find that he did tell
Mr. Williams the following Monday, April 12, that his injury was worse than he
had thought, and that he wanted to see a doctor. [19]

Complainant’s
ongoing pain after April 12, and Respondent’s knowledge of and response to his
complaints, show an awareness of an occupational injury at least as early as
April 14, 2021. On that date, Complainant had a text message exchange with Mr. Clemmons.
Ex. GX-9. In that exchange, Mr. Clemmons asked Complainant how his back was,
and whether he was “still taking it easy?” Id. Complainant replied that
he was, and that his supervisor, Mr. Williams, had told him to “run the plant
and do nothing else.” Id. Mr. Clemmons acknowledged this message. Id.

First, I find that
Complainant suffered an “occupational injury” as the agency has reasonably
defined that term. He was injured while working in a mine. The Agency’s general
definition of “occupational injury” has been affirmed by the Commission and the
D.C. Circuit Court of Appeals. See Energy West Mining Co. v. FMSHRC , 40
F.3d 457, 464 (D.C. Cir. 1994) (noting approval of definition of “occupational
injury” and affirming finding that accident was reportable even if injury
occurred while miner was at mine but not working when injured).

The only possible
issue is whether Complainant’s injury was serious enough to require reporting. The
definition includes a requirement to report an injury that gives rise to an
“inability to perform all job duties on any day after an injury.” 30
C.F.R. § 50.2(e) (emphasis added).

Respondent claims
that it limited Complainant’s work out of “kindness,” Tr. 539:5–10, but the
record establishes that Complainant was in fact placed on light duty. The
operator admitted as much in its answer. Ans. ¶ 5. Mr. Humes testified that Complainant
had been placed on light duty. Tr. 628:5–14. This was a decision made by his
supervisor, and VCM’s safety manager was aware of the decision. See Ex. GX-9.

It is
well-established by the record that Complainant’s job duties included more than
running the plant. Indeed, the record establishes that he was highly efficient
as plant operator but was disciplined for his alleged failure to perform other
duties adequately, including cleaning his area. Thus, an inability to clean his
area supports a finding of occupational injury.

Complainant
testified that his ability to perform several of his required tasks was
impaired by his injury. Climbing stairs was “painful,” using a hose to clean
his area was “very painful,” and “[s]hoveling was just basically unbearable.” Tr.
323:8–12. On at least three days, his supervisor, Chris Williams, did the
cleaning for him. Id. at 323:20–22. As noted above, Mr. Williams told
Complainant to “run the plant and do nothing else,” and Mr. Clemmons was aware
of this directive. I therefore find that Complainant was unable to perform all
of his required tasks due to his injury, and that his employer’s management was
aware of this disability.

As safety director
for Respondent, Mr. Clemmons was also aware of MSHA’s injury reporting
requirements. See Tr. 732–40, Ex. R-P (discussing reports of
occupational injury and illness and admitting exhibit containing those
reports). I hold that he must have at least been constructively aware of the
definition of “occupational injury” used by the agency to require reporting of
such injuries.

The evidence shows
that Respondent took pride in its safety record and spotlighted its favorable history
of occupational injuries to shareholders. See Ex. GX-4. The evidence
also shows that the operator knew of its duty to report occupational injuries
and had a program for recording and reporting them. After Complainant contacted
the MSHA District Office about his injury, the office apparently contacted
someone at the plant, who admitted that Complainant had been injured on the
job. Tr. 284:18–285:23. Yet it did not file an MSHA Form 7000-1. Id. at
284:23–24. [20]

Finally, the
evidence shows that the operator had a policy of seeking to treat minor
ailments with the so-called “RICE” method—rest, ice, compression, and
elevation. There is nothing wrong with this, in and of itself. But at least in
this instance, it appears that an over-reliance on the “RICE” concept seemed to
have been used as an alternative and not an adjunct to the operator’s duty to investigate
and report accidents and occupational injuries. [21]

While the incident
resulting in Complainant’s injury does not meet the definition of “accident” for
immediate reporting purposes under Section 50.2(h), the Mine Act uses a broader
definition of the term “accident,” and the statutory definition includes an
“injury to . . . any person.” 30 U.S.C. § 802(k) (2022). This is significant
because the operator is required to investigate, record, and report all
accidents. 30 U.S.C. § 813(d) (2022). Because Congress took care to define
“accident” in the Act, I find the statutory definition controls this
responsibility.

Respondent was
obviously aware of this duty because Mr. Clemmons and Mr. Ellis had in fact
conscientiously investigated a previous minor injury to Complainant, involving
a skid steer he had been driving. Tr. 327:11–14. It is thus inconceivable that
Mr. Clemmons would not have known of his duty to investigate, record, and
report the accident and occupational injury to the Complainant in this case.

Yet Respondent did
not report the occupational injury in this case within 10 days of April 14—a
date on which the evidence conclusively establishes Mr. Clemmons’ knowledge of
the occupational injury that prevented Complainant from performing all his
duties on that date. I impute that knowledge to Respondent.

Indeed, it does
not appear that the operator ever reported the injury, even after it provided a
physician referral to complainant on the day he was terminated. When the
operator did finally report the injury to abate the citation, the report
appears to be incomplete and inaccurate. See Ex. GX-3. [22] This is
inexcusable. MSHA takes seriously the duty to report occupational injuries, as
well as the potential that such injuries will be under-reported. That is why
the agency audits operators to ensure their reports are accurate. See
generally Big Ridge, Inc. , 34 FMSHRC 1003, 1011–22 (May
2012), aff’d , 715 F.3d 631 (7th Cir. 2013). However, the agency cannot
audit every operator, and must generally rely on self-reporting of accidents,
occupational injuries, and illnesses.

I do not find that
the operator generally suppressed reporting of accidents and injuries, as
suggested by the Complainant. Nor do I find sufficient evidence that the operator
engaged in a pattern of under-reporting occupational injuries. But the evidence
in this case does at least give rise to an inference that the operator may have
diverted a miner to “RICE” to forestall medical treatment of a minor injury,
and that in this case—at least—it did not fulfill its duty to report a
relatively minor injury once it became aware that the injury affected the
miner’s ability to perform all his duties. [23]
Though the injury was minor, it could carry the same statistical weight in the
operator’s record as a more serious lost-time injury.

2. Penalty

Several of the
statutory penalty factors have been stipulated to, including the size of the
operator, its record of previous violations, and the effect of the proposed
penalty on the operator’s ability to remain in business. The gravity of this
violation is not such that it would result in an injury to any miners. However,
it is a serious violation. The Act requires mine operators to assume primary
responsibility to prevent unsafe conditions and practices. 30 U.S.C. § 801(e)
(2022). Where the Secretary has expressly required the operator’s assistance in
this effort, by requiring occupational injuries to be recorded and reported,
the failure to do so affects the integrity of the enforcement program.

I agree with the inspector’s
characterization of the negligence as “high.” Tr. 288:8–21. However, I note
that the operator was contacted by MSHA and admitted to not having filed the
form prior to the citation being issued but did not file the form until after
it received the citation. I therefore find that the operator should not be
credited with rapid compliance after the fact for an affirmative duty it
ignored until its failure had been cited. Instead, I find that the penalty
proposed does not adequately reflect the aggravated lack of care in failing to
report the injury when it knew of it, and I assess a penalty of $300.00.

B.                 
Complainant
Was Not Terminated Because of His Protected Activity.

Complainant’s discrimination
complaint fails because the evidence at trial did not establish discrimination
under the Pasula-Robinette or Gross-Nassar standards. [24] As noted above,
the Commission has thus far only required that Gross-Nassar be employed
in mines within the Ninth Circuit, but the Commission or other circuit courts
may determine that the test must be employed. In the interest of judicial
economy, I have considered both standards in reaching my conclusion.

Under either
standard, the Secretary and the Complainant must prove by a preponderance of
the evidence that Complainant engaged in protected activity, that he suffered
an adverse employment consequence, and that there was a causal connection
between his exercise of protected activity and the adverse action.

As explained
below, I find that Complainant failed to meet his burden of proving a violation
under Pasula-Robinette . While I do find that the bare minimum standard
for a prima facie case has been met, the inference drawn for causation cannot withstand
Respondent’s well-supported explanation for its decision to discharge
Complainant, and Complainant failed to demonstrate that the operator’s cited
performance issues were pretextual.

Considering the
evidence under Gross-Nassar , I conclude Complainant was not terminated because
of any consideration by the operator of any protected activity. I find that he
did engage in protected activity, that the operator was aware of this activity,
and that he was terminated from employment. However, there is no proof that
would support a reasonable inference that his protected activity was a “but-for”
cause of his termination.

As
the Supreme Court has explained, “but-for” causation may be determined by
isolating the possible rationales offered for an adverse employment action and
determining how the outcome may be affected. See Bostock v. Clayton Cty.,
Ga. , 140 S. Ct. 1731, 1739 (2020). (“[A] but-for test directs us to change
one thing at a time and see if the outcome changes. If it does, we have found a
but-for cause.”) In the present case, the possible reasons Complainant was
separated from his employment include the disciplinary and performance issues
cited by the operator, and Complainant’s request to see a physician, which he
claims is an activity protected against discrimination under the Act.

There
is no evidence that Complainant’s request for medical care played any role in a
termination that was already underway when the persons making the termination
decision learned about the request. There is thus no causal connection, and the
analysis under the Gross-Nassar standard would produce the same result
as under Pasula-Robinette .

1.         Complainant’s request to
see a doctor for an occupational injury is protected activity under the Act. [25]

The Act protects
miners against discrimination or interference because of their exercise of
their statutory rights, including those enumerated in Section 105(c)(1)
as well as “any [other] statutory right afforded by this Act.” 30 U.S.C. §
815(c)(1) (2022). Thus, whether the Act affords miners the right to request
medical treatment for an occupational injury is a threshold question in this
case.

The Commission has
apparently not held that a request to see a physician, standing alone,
qualifies as protected activity. However, it has found that the reporting of
injuries is protected against discrimination, even if there is no safety
complaint associated with the report. Swift v. Consolidation Coal Co. ,
16 FMSHRC 201, 205 (Feb. 1994).

I find that the
Act does protect requests for medical care, even if the injury did not result
from an unsafe condition or practice or was not made in conjunction with a
miner’s report of an alleged danger or safety and health violation. In addition
to the reasoning in Swift, I rely on the text, structure, and purpose of
the Act’s anti-discrimination provisions.

As noted
previously, Section 103(d) of the Act requires operators to investigate all
accidents. 30 U.S.C. § 813(d). If the report of an occupational injury is the
event which gives rise to this duty, it would thwart the clear and express intent
of the statute to permit mine operators to suppress the recording and avoid the
investigation of accidents by discouraging or punishing the report of
occupational injuries.

Extending the
Act’s protection to requests for medical care is consonant with the protection
of other rights under the Act. When a miner requests to see a physician, the
report may affect the operator’s safety record, either because the complainant
will require and receive medical treatment (as opposed to evaluation) or
because the treating physician may proscribe activities necessary for the
miner’s job.

The Mine Act is a
remedial statute, and its terms must be understood broadly to effectuate
Congress’ purpose—to eliminate unsafe and unhealthful conditions and practices in
mines, relying primarily on the active involvement of operators in the
prevention of such conditions and practices. 30 U.S.C. § 801(d)–(e); see also
Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp. , 38 FMSHRC
1914 (Aug. 2016). The Commission’s embrace of activities beyond those
enumerated in the Act has been consistently and broadly inclusive. See Emery
Mining Corp. , 10 FMSHRC 276, 283, 293 (Mar. 1988) (permitting walkaround
inspection participation under Section 103(f)); So. Ohio Coal Co. , 5
FMSHRC 729, 759 (Apr. 1983) (ALJ) (permitting post-inspection conference
participation under Section 103(f)); Sec’y of Labor on behalf of Bennett v.
Emery Mining Corp. , 3 FMSHRC 2648, 2657 (Nov. 1981) (ALJ) (requiring
operator-provided training under Section 115).

Further, the D.C.
Circuit has consistently (and recently) relied on the intent to achieve the
goals of the Mine Act in affirming miner’s rights. In Marshall County Coal
Co. v. FMSHRC , the court recognized a miner’s Section 103(g) rights—enabling
the raising of anonymous complaints—as a basis for a protected activity in an
interference claim. 923 F.3d 192, 195, 201 (D.C. Cir. 2019). The operator
activity complained of there was a requirement to report complaints to
management. Id. at 197.

In Harrison
County Coal Co. v. FMSHRC , the court denied the operator’s petition for
review because there was substantial evidence of six protected
activities—mostly regarding reporting health, safety, and discrimination
complaints. 790 Fed. Appx. 210, 212, 213 (D.C. Cir. 2019). The court reiterated
that reporting is a right bolstered by its importance to achieving the Act’s
purpose:

Since the participation of miners
in reporting unsafe working conditions is essential to the effectiveness of the
Mine Act, Congress explained miners “must be protected against any possible
discrimination which they might suffer as a result of their participation.”

Id. at 212 (quoting
S. Rep. No. 95-181, at 35, reprinted in Senate Subcomm. on Labor,
Committee on Human Res., 95th Cong., Legislative History of the Federal Mine
Safety and Health Act of 1977 , at 626 (1978)). This is in line with the
Commission’s reliance, in Swift, on the command of Section 2(e) that
“the operators of such mines with the assistance of the miners have the primary
responsibility to prevent the existence of such conditions and practices in
such miners.” 30 U.S.C. § 801(e).

Consistent with Commission
and court precedent and Congress’ clearly expressed intent, I find that a mine
operator may not discourage, interfere with, or discriminate because of a
miner’s request to see a doctor because he was injured at the mine.

2.         The
Operator was aware of Complainant’s protected activity.

I credit
Complainant’s testimony that he twice communicated a request to see a doctor to
his supervisor, Chris Williams. His testimony regarding his requests is
discussed more thoroughly below, but he at least made the requests on April 12,
the Monday after he was injured, and on May 12, the day he was terminated. Mr.
Williams, an agent of Respondent, was aware of both requests. The managers who
made the decision to terminate Complainant were aware of the request he made on
May 12.

3.         Complainant
suffered an adverse employment consequence in this case.

Complainant’s
employment was terminated. Discharge from employment is expressly prohibited by
Section 105(c) of the Mine Act and is the classic example of an adverse
employment action. 30 U.S.C. § 815(c)(1).

4.         The
evidence is insufficient to support an inference that Complainant was terminated
because of his request to see a physician.

The burden of
producing sufficient evidence to support a prima facie case of discrimination is
not especially great in the abstract. A complainant may provide direct evidence
that the adverse employment action was discriminatory. But if such evidence is
unavailable, as is usually the case, the Complainant is only required to
demonstrate that the available circumstantial evidence could support an
inference of discriminatory treatment. Turner, 33 FMSHRC at 1065–66.

I find that the
Complaint for discrimination fails because there is no direct evidence of discriminatory
intent and no reasonable basis for inferring that his discharge from employment
could have been causally related to Complainant’s protected activity. This is
true under either legal standard the Commission might apply to his
discrimination claim.

a.         There
is no direct evidence of discriminatory intent or motivation.

The operator has
denied that Complainant was discharged because of his protected activity. The
Secretary and the Complainant must show at the prima facie stage that
the protected activity could have motivated his discharge, and then carry the burden
of proving by a preponderance of the evidence that his discharge was so
motivated.

Complainant could
not provide any direct evidence of discriminatory motive. However, the absence
of direct evidence is not fatal to Complainant’s case. “‘[D]irect evidence of actual
discriminatory motive is rare. Short of such evidence, illegal motive may be
established if the facts support a reasonable inference of discriminatory
intent.’” Con-Ag, Inc. v. Sec’y of Labor , 897 F.3d 693, 700 (6th Cir.
2018) (quoting Sec’y of Labor on behalf of Howard v. Cumberland River Coal
Co., 34 FMSHRC 1396, 1397 (June 2012)).

Therefore,
I must consider whether inferences reasonably drawn from the evidence in the
case may be used to support Complainant’s contention that he was fired because
he engaged in protected activity. Such inference may be supported by the
following factors:

(1) [T]he operator’s knowledge of
the protected activity; (2) the mine operator’s hostility or ‘animus’ towards
the protected activity; (3) the timing of the adverse action in relation to the
protected activity; and (4) the mine operator’s disparate treatment of the
miner.

Id. (quoting Cumberland
River Coal Co. , 712 F.3d at 319; Sec’y of Labor on behalf of Chacon v.
Phelps Dodge Corp. , 3 FMSHRC 2508, 2510–12 (Nov. 1981), rev’d on other
grounds , 709 F.2d 86 (D.C. Cir. 1983)).

b.         The record
does not support an inference that Complainant was discriminated against because
of his protected activity.

1.         There
is scant evidence of disparate treatment of the Complainant.

The record in this
case is replete with complaints by miner witnesses of unfair, arbitrary, and
harsh treatment by lower-level supervisors. However, this was a burden borne by
the entire workforce. There is little evidence that Complainant was an especial
target of abuse, and no evidence that any protected activity may have motivated
Respondent’s agents.

On the contrary,
miner witnesses testified that everyone in the workforce felt targeted by poor supervisors
who did not know their jobs well. Some miners did testify that Complainant’s
supervisors had “targeted” him for termination, but the bases for their assertions
are grounded in actions that predated any protected activity in this case.

When questioned
about the operator’s management, the miner witnesses complained about generally
arbitrary and unfair supervision of employees by Mr. Parr and Mr. Humes. In
fact, Complainant and several other witnesses noted that at one point Mr. Humes
threatened to fire and replace the entire workforce.

It was clear that
none of the miners felt genuinely intimidated by these threats. After Mr.
Humes’ tirade, witnesses noted that “every employee called [human resources]
that day;” Tr. 86, and Mr. Ellis noted that he had discussed the situation with
several miners and the company’s human resources department, and he required
Mr. Humes to apologize.

There is some
evidence that Complainant was treated less favorably than other miners. However,
he himself testified this began under Mr. Parr—who was separated from his
employment before claimant requested to see a physician. On cross-examination, Complainant
admitted that he had been verbally counseled by Mr. Parr for failing to
thoroughly clean his area. Mr. Parr subsequently issued a written warning to
Complainant for the same issue.

Complainant
testified that he believed Mr. Parr was trying to make a “paper trail” to terminate
him. Even if this were true, however, any motivation Mr. Parr might have had to
harass or oppress Complainant could not have been related to protected activity
that had yet to occur. It is thus not logically possible to infer that Mr. Parr
targeted claimant because of his protected activity.

Complainant subsequently
was formally disciplined again, by a different supervisor, before his
termination. However, the second written warning and suspension also took place
before his injury and subsequent protected activity. When Complainant was
injured, he was therefore already on a “last chance” letter, having been
suspended by the operator and told, in writing, that any future
violation of policies or failure on his part could lead to termination.

I have considered the
possibility that Complainant was the only miner disciplined for leaving work
early when he was suspended. At least one other miner, Mr. Evans, left at the
same time as Complainant, and all four miners on Complainant’s crew left
without completing the cleaning tasks assigned to them, according to Mr.
Williams. But this suspension also occurred well before the injury upon which Complainant’s
claim of protected activity rests, and Complainant’s discipline here was thus entirely
unrelated to his request to see a doctor for an injury that had not yet
occurred.

Furthermore, while
Mr. Evans may not have been formally disciplined, it appears that Mr. Williams
at least intended to do so. Mr. Evans was summoned to the office, where Mr.
Williams told him that he was going to be issued a verbal warning. Because Mr.
Evans had no prior disciplinary history, his treatment under the company’s
progressive disciplinary policy was equivalent to Complainant’s. While he may
have talked his way out of formal discipline, Mr. Williams did not ignore the
actions of the other employee whose actions were the same as Complainant’s.

Additionally, Complainant’s
discipline does not appear to be inconsistent with that assessed to other
miners for similar conduct. Mr. Walker had a similar disciplinary history and
had also received a second written warning and three-day suspension for the
same alleged failures that led to Complainant’s suspension. Tr. 548:24–549:10; Ex.
R-L. There was no evidence that Mr. Walker had ever engaged in protected
activity before his suspension.

In summary, there is
insufficient evidence to support the contention that Complainant was treated
more harshly than other miners, and no evidence at all for inferring that any
actions of his supervisors had anything to do with mine safety or health. There
is thus no basis for me to impute an improper motive for any of the predicate
disciplinary actions on which Complainant’s termination was grounded.

In fact, this
hypothesis is refuted by Respondent’s treatment of Complainant before and after
he engaged in protected activity—which might be a more appropriate
consideration than alleged disparate treatment of Complainant and other
similarly situated miners. See Riordan , 38 FMSHRC at 1927 (finding of
pretext upheld where written record of miner’s performance was inconsistent
with reasons given for termination).

Before his
protected activity, Complainant was formally disciplined three times, by or at
the insistence of three different supervisors, for failure to complete cleaning
and greasing tasks that Respondent had assigned to him as part of his job. After
his injury and earliest request to see a physician, Complainant was discharged
for the same conduct that he had been disciplined for at least three times prior
to his injury and protected activity.

The discharge was
consistent with company policy, and Complainant had been warned when he was
suspended that he could be discharged for any future failing or violation of
company policy. He himself admitted that he had not fully cleaned his area or
greased the plant on May 9 and 10, and he does not know whether anyone else did
so. Tr. 422:13–22. [26]

My decision is
mindful of the Commission’s admonition that operator
justifications in discrimination cases should not “be examined superficially or
be approved automatically when offered,” but that my careful analysis may not
“substitute [my] business judgment or sense of ‘industrial justice’ for that of
the operator.” Cumberland River Coal Co. , 712 F.3d at 320 (quoting Haro
v. Magma Copper Co. , 4 FMSHRC 1935, 1938 (Nov. 1982)).

In this case
especially, I note the performance issues cited by the operator may be vital to
its safe and efficient operation. Special Investigator McClung testified that a
violation could be cited as an S&S violation of MSHA’s housekeeping standards.
Tr. 490:7–491:5. It would be contrary to the Act’s purpose and text to punish
an operator for holding miners accountable for compliance with a mandatory
safety and health standard. And the operator provided credible testimony about
the severe costs and inconvenience produced by a failure to grease the plant
bearings and other equipment, which is a daily requirement.

His disciplinary history
left Complainant in a precarious position, where any subsequent violation of company
policies would result in his termination. As noted, acts predating the
protected activity cited in this case could not have been motivated by that
activity. Complainant nevertheless could have established a basis for inferring
a nexus between his protected activity and his discharge but was unable to
prove that the operator’s termination decision—which was consistent with its
policies and Complainant’s work history—was ever treated differently because of
activity protected under the Act.

2.         The
record does not support an inference of animus toward the Complainant because
of safety or health related issues or general animus toward safety and health
concerns.

While the record
does not support an inference that he was treated differently because of his
protected activity, Complainant could have provided a reasonable basis for
inferring his termination was motivated by improper animus against safety and
health generally, or against him for his involvement in or advocacy on safety
and health issues. There is not a basis in the record for this inference,
either.

First, there is no
evidence at all that Complainant ever engaged in any advocacy on safety and
health issues. [27]
Nor does he appear to have had any specific, material involvement in those
issues during his employment.

There is also no
evidence that Respondent harbored any animus against safety and health
generally. On the contrary, witnesses almost without exception testified that
the company tried to operate safely and to correct hazardous conditions that
were brought to its attention. Complainant himself provided such testimony. See
Tr. 397:25–398:2.

I also note the
weight of circumstantial evidence undermining any inference of hostility to
safety and health. Respondent held “morning stretch” sessions for employees,
which testimony acknowledged as having a safety purpose. Tr. 147:3–5. Employees
apparently felt comfortable calling human resources and senior managers to
complain about their supervisors. When Mr. Humes supposedly posted a new policy
requiring workers to leave the jobsite at the same time at the end of their
shift, an employee removed the message so that he could bring it to the morning
meeting for discussion.

Testimony by other
miners also refutes any notion that Respondent was hostile to safety and health
complaints. Mr. Dycus testified that it was generally known that he had made a
complaint to MSHA, and yet was never disciplined by the company for anything. Even
more telling is the incident where Mr. Parr allegedly tried to persuade Mr.
Walker to falsify an examination report before an inspection, Mr. Walker’s
refusal, and his reporting the incident to Respondent’s management. VCM opened
an investigation. Mr. Parr then resigned. The inescapable inference is that
miners believed they could report safety matters to management, and that when
they did so, those matters would be properly addressed.

Nor is there any
evidence that the Company showed any hostility toward Complainant because of
his request to see a doctor. As noted, every prior disciplinary action occurred
before his injury and protected activity. When Complainant requested to see a
doctor, there was no adverse response to the request from anyone in mine
management.

At worst, Complainant’s
request for medical care was ignored. If Complainant’s previous requests had
any effect, it was to have him placed on limited duty due to his injury. Mr.
Williams and Mr. Clemmons both inquired about Complainant’s injury after that. There
is no conduct from which I could infer any hostility arising from his injury.

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. Mr.
Ellis testified that he made the decision to terminate Complainant, with input
from Mr. Humes and Mr. Lindsey. They had intended for Mr. Williams to bring Complainant
to the office after the morning meeting so that they could communicate the
decision to him.

Mr. Ellis prepared
notes in anticipation of that action. While Mr. Ellis testified that Mr.
Williams was not involved in the termination decision, his notes suggest
otherwise. [28]
His unrebutted testimony shows that he took those notes before he learned of
the request to see a physician in preparation for the meeting at which Complainant
was to be terminated, the next day. The context and the content of the notes
together clearly support his testimony.

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.

This evidence
supports Respondent’s contention that it took seriously safety and health
issues brought to its attention. I thus find that there is no evidence in the
record from which one could reasonably infer any hostility to protected
activity, including Complainant’s request to see a doctor.

3.         Coincidence
in time between Complainant’s request to see a doctor and his termination raises
a superficial inference of potential discriminatory intent that does not survive
evidence raised in response to his prima facie case.

Coincidence in
time between protected activity and an adverse employment action justly creates
suspicion that there may be a relationship between the two. A miner may
establish a prima facie case where the adverse employment action is
imposed soon after the exercise of protected activity.   See Turner, 33
FMSHRC at 1066 (citing King v. Rumsfeld , 328 F.3d 145, 150–51 (4th Cir.
2003) (reversing trial court’s conclusion that plaintiff failed to make out a
prima facie case of retaliatory discharge based on evidence proffered by the
plaintiff that “his termination came so close upon his filing of [an EEOC]
complaint giv[ing] rise to a sufficient inference of causation to satisfy the
prima facie requirement”)).

The Commission has
held that coincidence in time, combined with knowledge of a miner’s protected
activity, may establish discriminatory motivation. Sec’y of Labor on behalf
of Knotts v. Tanglewood Energy, Inc. , 19 FMSHRC 833, 837 (May1997); Bradley
v. Belva Coal Co. , 4 FMSHRC 982 (June 1982). I credit Complainant’s
testimony that he requested to see a physician on May 12, the morning he was
terminated. It is undisputed that all of those involved in the decision to
terminate Complainant were aware of the protected activity on May 12.

Mr. Williams, who
provided input to Mr. Humes in support of the latter’s termination
recommendation, testified about the request to see a physician. Mr. Humes, who
made the recommendation to terminate Complainant, was also aware of the request
before the termination was carried out. Mr. Ellis and Mr. Lindsey, who made the
decision to terminate Complainant, also knew of the request because Mr.
Williams reported it to them. 

Here, as in Knotts ,
the Complainant was terminated soon after his protected activity. Indeed, he
was discharged almost immediately after requesting to see a physician on May 12.
This close proximity in time is sufficient to establish a prima facie case
of discrimination, because in the absence of other evidence, a causal
relationship is strongly suggested by the timing of the two events.

While Complainant
has provided sufficient proof for a prima facie case, the analogy to Knotts cannot
survive close scrutiny. In Knotts, the miner/complainant had an
extensive conversation with a representative of the mine’s owner. 19 FMSHRC at

834. Subjects of the conversation included safety, equipment and production
     problems, morale, mine policy, and other subjects. Id. The mine’s vice
     president was working underground and listened to the conversation by phone. Id.

The next day, Mr.
Knotts was discharged. 19 FMSHRC at 835. Knotts said the vice president told
him that the company had suspected that Mr. Knotts had been talking to the mine
owners for some time. Id. The vice president’s own testimony indicated
he was upset that Mr. Knotts had criticized mine management in the conversation.
Id. While the company argued that Mr. Knotts was fired for engaging in a
lengthy conversation instead of doing his job, the ALJ found otherwise. Id.

In affirming the
ALJ’s rejection of the operator’s affirmative defense, the Commission noted
that there was no evidence of past discipline or performance issues in Mr.
Knotts’ work record. 19 FMSHRC 838. In fact, the company admitted he was “one
of the best employees.” Id.

That is
practically the inverse of the situation in the present case. Here,
Complainant’s disciplinary record placed him on a “last chance” agreement
before he was injured or engaged in any protected activity. The disciplinary
record was based on his alleged failure to clean and grease his zone and his
alleged early departure from work on February 1, 2020, for which he was
suspended.

Even if the
previous disciplinary actions were questionable, there is no evidence that they
were motivated in any part by any activity cognizable under the Act. To the
extent safety was implicated at all, even MSHA’s investigator acknowledged that
the failure to clean areas where miners work or travel could lead to S&S
violations.

Complainant
nonetheless could have shown that the final action taken by the operator,
ending his employment with Respondent, was motivated by his protected activity.
However, the coincidence in time turns out to be just that—a coincidence—and is
insufficient to overcome the operator’s explanation for Complainant’s
discharge. It appears that the request to see a physician did not influence,
but rather interrupted, the execution of the termination decision.  

4.         Respondent acted consistent
with its business practices, and the record does not support a finding that its
explanation was pretextual.

The Commission has
held that “pretext may be found . . . where the asserted justification is weak,
implausible, or out of line with the operator's normal business practices.”
Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc. , 12 FMSHRC
1521, 1534 (Aug. 1990) (citing  Haro v. Magma Copper Co. , 4
FMSHRC at 1937–38). In this case, Respondent’s evidence explains the
coincidence in time, and the termination process was consistent with VCM’s
progressive disciplinary policy and its maintenance and housekeeping policies.

The operator’s
witnesses gave consistent, credible accounts of the termination and their
consideration of Complainant’s request to see a physician. The plan to
terminate Complainant was already in motion when the key management players
learned of Complainant’s request to see a physician. Termination was the
logical next step under Respondent’s progressive disciplinary policy.

In accordance with
its internal procedures, the operator had choreographed an elaborate, scripted
plan for carrying out the termination. But when they heard that Complainant had
requested to see a doctor, VCM’s management paused to consider its plan and
decided to provide a list of physicians to the Complainant in addition to
proceeding with the planned termination.

Respondent did not
fire Complainant “because” he had asked to see a doctor. Rather, its management
continued with an already-formulated plan to terminate him, but made a slight
modification to that plan, providing him with a list of physicians he might see
about his injury.

Thus, instead of
summoning Complainant from the morning meeting, the operator made a “pivot”
after Mr. Williams told them he had requested to see a doctor. This request on
May 12 could not have motivated a plan that was already under way, based on a
decision that was made the previous day.

I
have also considered that Complainant’s first request could have motivated a
discriminatory response by Respondent. See Riordan, 38 FMSHRC at 1924 (citing
Gorzynski v. JetBlue Airways Corp ., 596 F.3d 93, 110 (2d Cir. 2010); Pero
v. Cyprus Plateau Mining Corp ., 22 FMSHRC 1361, 1365 (Dec. 2000) (holding a
gap of several months between protected activity and discharge to be probative
of animus)). But
nothing in the record suggests that it did.

The first request
to see a doctor was made to Mr. Williams, who was an agent of Respondent. But
there is no evidence that Mr. Williams told anybody else about that request, or
that any of the persons involved in the termination decision—Mr. Ellis, Mr.
Lindsey, or Mr. Humes—were otherwise aware of the request. [29]

Mr. Williams
himself did not respond adversely to Complainant’s protected activity. After
Complainant had requested to see a doctor, but before he was terminated, Mr.
Williams asked about Complainant’s back nearly every day. Tr. 430:23–431:2.

This
case is thus unlike Riordan . As the Commission noted, the complainant/miner
in that case was disciplined immediately after his most recent protected
activity, and then terminated months later. Riordan , 38 FMSHRC at 1927
(“ Taken together, these two incidents raise an inference that Riordan’s
termination was not coincidental.”) (emphasis added). There are no
corroborating facts to support such an inference in this case.

Complainant
testified that he made his request on two other occasions. While Complainant
only cited as protected activity his May 12 request to see a physician, Ex. G-1;
Tr. 439:21–440:2, any previous requests would have been within the scope of
MSHA’s investigation.

Furthermore,
credible testimony about previous requests could be used to establish knowledge
and might be a basis for finding that the operator’s business justification was
pretextual. I have therefore considered Complainant’s testimony that he told Mr.
Clemmons on May 8, and that he told Mr. Humes, on a day he could not recall,
over the radio. [30]

Complainant’s
recollection of these requests is oddly vague and does not reflect a
progression or escalation of his concern with the company’s failure to refer him
to a doctor for an injury serious enough to affect his work. He also testified
that his pain from the injury was so serious that he could not sleep and that
it was “affecting everything about [his] daily life.” Tr. 332:4–7. Yet he does
not appear to have followed through or complained about the operator’s alleged
inaction on his request until May 12.

I do not credit Complainant’s
testimony that he told Mr. Clemmons he needed to see a doctor on May 8. Mr. Clemmons
allegedly asked if this was due to his injury in April, and when Complainant
said it was, Complainant said Mr. Clemmons drove away without responding. Tr.
384:2–6.

This
testimony is inconsistent with other facts in the record, as well as human
nature and common sense. Complainant said that his injury was serious enough to
have affected him profoundly for more than a month. He knew Mr. Clemmons was
aware of the injury. Mr. Clemmons had previously investigated an incident in
which Complainant was injured. Mr. Clemmons had also inquired about Complainant’s
condition while he was recovering from the injury at issue in this case. Yet
there was no follow-through with Mr. Clemmons, or anyone else, until the day he
was discharged.

Perhaps realizing
the weakness of his case, Complainant also claimed Mr. Clemmons had previously
asked what could be done to keep him from going to the doctor after the skid steer
injury. Mr. Clemmons denied this, and Complainant’s testimony is at odds with his
own testimony about the investigation into the incident, which characterized
the investigation as careful and thorough.

Furthermore, the
comment seems out of character with Mr. Clemmons’ text messages to Complainant,
evincing what appeared to be genuine concern about his injury. In that context,
I credit Mr. Clemmons’ denial, in part because the record includes incidents
where other miners had requested to see a doctor and had their requests
granted. See Ex. R-P. Some of these requests were for relatively minor
injuries, contrary to Complainant’s claim that the reporting of anything short
of “profuse bleeding or broken bones” was discouraged.

Complainant also
claims to have told Mr. Humes over the radio that he wanted to see a doctor. I
am skeptical of this for several reasons.

First, Mr. Humes
denied that Complainant ever told him he wanted to see a doctor. Tr. 625:1–4. I
found Mr. Humes to be a disinterested witness who was forthright and candid
about his own shortcomings, and I credit his testimony here because it is more
consistent and reasonable than Complainant’s version of events

Second, Complainant
says he cannot remember how Mr. Humes responded to the request, and there is
again no linkage made between this request and other requests that were allegedly
made. He did not testify that he had told Mr. Humes about his earlier request
to Mr. Williams, shortly after his injury. As with the requests allegedly made
to Mr. Clemmons and Mr. Williams, the testimony relates a solitary statement
that the operator’s management allegedly ignored, and Complainant did not
testify about any effort to follow up on or escalate his requests.

Finally, the
record establishes that comments made over the radio could be heard by other
persons generally. Mr. Humes was discharged from employment in part because of
something offensive he said over the radio that was heard by employees. Yet none
of the other miner witnesses testified that Complainant ever made a request to
see a physician over the radio.

There is also no testimony
about or basis for inferring a correlation between the alleged previous requests
and any consideration of them by Respondent’s management when it decided to discharge
Complainant from employment. As the party with the burden of proof, it is
incumbent on the Complainant to not only suggest an inference, but to support
it with credible evidence. Even accepting that all his requests to see a doctor
were made as stated, there is no evidence that anyone might have considered them
when Respondent made the decision to terminate him. [31]

The operator
relied on input from Mr. Williams and Mr. Humes in making that decision. I have
credited Complainant’s testimony that he had previously told Mr. Williams on
April 12 that his injury was not improving and that he needed to see a doctor. But
even Complainant did not testify that Mr. Williams reacted adversely to this
request, or that he attempted to discourage or interfere with his pursuit of
medical treatment.

Mr. Williams
claims not to have made a recommendation to fire Complainant, and Mr. Humes claims
responsibility for the recommendation. But the termination decision was the
last in a chain of disciplinary actions, undertaken by or with input from three
different supervisors. Each of the previous disciplinary actions preceded Complainant’s
request to see a physician, and there was no protected activity or evidence of
any other relevant health and safety activities or views that could have
influenced those decisions.

It therefore
appears that Complainant was discharged for the same type of performance issues
that contributed to his adverse disciplinary record. He himself acknowledged
that he failed to clean or grease the plant on May 9 or 10, as reported by Mr.
Williams to Mr. Humes. He said that the company had obtained a new grease gun
for him to use. Tr. 435:13–436:2. Although Complainant said that grease gun had
the “wrong” tip and could not be used, he acknowledged that other grease guns
were available. Id.

Greasing the plant
was part of Complainant’s job and was an important, daily responsibility. Mr.
Williams notes—in a statement of some significance—that Complainant did not
tell him that the plant had not been greased at the end of his shift, and that
this is something that he believed Complainant should have told him, because it
was vital that the plant be greased every day. Tr. 785:2–4.

Given the costs
and inconvenience created by the catastrophic damage to the plant bearings after
a previous such failure, I credit Respondent’s proffered justification for its
decision to terminate Complainant as reasonable. Complainant produced no
evidence that suggests the operator’s justification is pretextual. Instead, it
appears that the suggested connection between the final request to see a
physician and the discharge from employment is not a causal nexus but merely a post
hoc, ergo propter hoc fallacy.  

CONCLUSION

The evidence in
this case leaves open the possibility that Complainant may have been treated
unfairly by his employer prior to his protected activity. Accepting as true his
account of events, he received a written warning, which he disputed, from a
supervisor who was widely disliked and who eventually resigned under
unfavorable circumstances. Complainant was then suspended when other workers who
engaged in similar conduct were not disciplined. He was fired for not
performing some of his duties during a time when he was injured, and when there
appeared to be at least some understanding that other people would assist him
with those tasks while he recovered.

However, there is
no evidence that improper discriminatory motivation played any role in any of
these disciplinary actions. I therefore find that Respondent did not
discriminate against the Complainant in violation of Section 105(c)(1) of the
Act, and his complaint is DISMISSED.

The order of
temporary reinstatement entered July 27, 2021, is hereby DISSOLVED.

Citation No.
9237452 is AFFIRMED . Respondent is ORDERED TO PAY the Secretary
of Labor $300.00 within 30 days of the date of this decision. [32]

/s/
Michael G. Young

Michael
G. Young

Administrative
Law Judge

Distribution
(First Class Mail and email):

Christopher M.
Smith, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219, [email protected] ; [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]

[1] Mr. Hargis filed
a timely complaint of discrimination on June 7, 2021. Compl. ¶ 8. The Secretary
found that Mr. Hargis’ complaint for discrimination was not frivolously
brought, and upon agreement of the parties, I entered an order temporarily
economically reinstating him, effective July 27, 2021. Tr. 14:11–25.

[2] The Ninth Circuit
recently decided that Commission discrimination cases must apply the standard
established by the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. , 557 U.S. 167 (2009) , and University of Texas Southwest Medical Center v. Nassar , 570 U.S. 338 (2013) . Thomas v.
CalPortland Co. ,
993 F3d 1204, 1210–11 (9th Cir. 2021). It is unknown whether the Commission
will apply the Gross-Nassar standard to all cases within its
jurisdiction, or only to cases in mines within the Ninth Circuit.

[3] Mr. Hurst was
personally served. Mr. Woods was served by certified mail. Id. at
487:11–488:20. The return receipt was returned and included with the subpoena
as an exhibit; however, the receipt was unsigned. Id.

[4] Where necessary
or appropriate, I have noted in my decision specific factors I considered in
making credibility determinations or assigning weight to testimony or exhibits.
The failure to do so for each witness or exhibit does not indicate that I did
not fully weigh and evaluate all evidence in the record.

[5] Complainant’s
raise was $0.53/hour, from $19.10 to $19.63. Ex. GX-11. Mr. Ellis testified
that comments made in the review process should have led to a reduced rating,
and that the raise was made in error. Tr. 559:13–561:6. The recommendation and pay
raise decision predated the injury and protected activity in this case and have
no bearing on the outcome.

[6] Complainant had
not requested to see a doctor for this incident. Tr. 443:16–25.

[7] None of the
photographs were taken on any of the days for which Complainant had been
disciplined for failing to clean his area.

[8] Complainant
testified that Mr. Humes was on the phone when he waved to him.

[9] The evidence as
to whether Mr. Evans was disciplined or merely counseled is ambiguous. Mr.
Evans said Mr. Williams called him to the office and told him he was getting a
verbal warning for leaving work early. Mr. Williams’ testimony is unclear about
whether Mr. Evans was disciplined, while Mr. Evans said that he argued that it
was unfair to punish him. Tr. 170:16–25. He said that Mr. Williams relented,
telling Mr. Evans not to worry about it, and that the discussion was “just us
talking.” Id. at 189:1–4. Mr. Evans had no disciplinary history at the
time. Id. at 185:7–10. I credit his account of the meeting, which is
fairly detailed and consistent with his work history. I also infer from Mr.
Evans’ account that Mr. Williams called him to the office with the intent to
discipline him for leaving work early. Complainant had already been issued his
second written warning and suspension when Mr. Evans met with Mr. Williams. Id.
at 180:11–14.

[10] It is difficult
to assess Mr. Williams’ credibility as a witness. No witness had anything
negative to say about his character, and in fact the miner and operator
witnesses spoke very highly of his personal qualities and his ability as a
supervisor. However, Mr. Williams was often a poor witness. His recall of
events was uneven. His testimony contradicted itself at times. He was combative
and argumentative over even minor points. His testimony disagreed with that of
other witnesses who seemed credible and were generally disinterested. On the
other hand, many of the important facts he testified to are either corroborated
or unrebutted and consistent with other witnesses’ accounts.

I note that
counsel for Respondent told the Court Mr. Williams would be late for the
hearing on the day of his testimony because he had been essentially trapped on
his property by trees that had fallen in the previous evening’s severe
thunderstorms. There were in fact numerous downed trees in the local area
following the storm, which was prolonged and powerful. When he arrived at the
hearing, Mr. Williams was flushed, and his clothes were dirty and torn. He
appeared to be highly agitated. He testified that he was uncomfortable as a
witness adverse to his brother-in-law. I do not find that he was an untruthful
or generally unreliable witness, but in some instances, I have not credited his
testimony where it disagrees with others.

[11] The provisions of
the standard relevant here require that:

At all mining
operations—(a) Workplaces, passageways, storerooms and service rooms shall be
kept clean and orderly; (b) The floor of every workplace shall be maintained in
a clean, and so far as possible, dry condition. Where wet processes are used,
drainage shall be maintained, and false floors, platforms, mats, or other dry
standing places shall be provided where practicable . . . .

30
C.F.R. § 56.20003(a)–(b).

[12] Mr. Stultz
backtracked from this assessment, somewhat. Tr. 242:3–9.

[13] Subsequent
testimony made clear that he was referring to a safety examination report
concerning some guards that had not been repaired. Tr. 72:16–73:14.

[14] Mr. Williams is
also Complainant’s brother-in-law. He said their relationship is not strained
but that they are not close. Tr. 431:7-13.

[15] Neither party
questioned Complainant further on this exchange, and there was no testimony
about any subsequent actions by the company or Complainant based on the alleged
request.

[16] There was some
confusion about the nature of Complainant’s injury. Mr. Ellis said he thought
Complainant had injured his ribs. Tr. 512:13–21. Complainant said he never
claims his ribs had been “broken,” and that the injury was the same back injury
he had reported on April 12. Id. at 384:7–385:6. Mr. Williams’ testimony
on this point was confusing and ambiguous. He testified that he thought
Complainant’s ribs were injured, and his notes say that Complainant told him he
had three broken ribs, but he acknowledged this was the same injury Complainant
reported in April. I find that the injury reported on May 12 was the same
muscular injury to Complainant’s thoracic spine which had been reported on
April 12. This confusion is not material to the matters in dispute here.

[17] Tennessee’s
workers’ compensation law requires the employer to provide the employee with a
group of three or more  independent reputable physicians , surgeons,
chiropractors, or specialty practice groups in the injured employee’s
community, or, if no such providers are available in the community, within
a one hundred (100) mile radius of the employee’s community. Tr. 716:11–14; see
also Tenn. Code Ann. §
50-6-204 (2022). The exhibit introduced included three physician practice
groups.

[18] Mr. Williams testified
he had seen Complainant carry a gun “at times,” but never at work. Tr. 814:2–21.
Neither Mr. Williams nor Mr. Humes said anything about Complainant having a
history of violence. I note that such a characterization would be inconsistent
with the testimony of Complainant’s co-workers and the demeanor I observed
during the hearing. It is difficult to fault an employer for being concerned
about a possible workplace violence issue, and it appears Mr. Ellis may have drawn
an inference about Mr. Hargis from the way the information may have been
reported to him, but the way the termination was carried out was unfortunately embarrassing
and should not be taken as a reflection on Mr. Hargis’ character.

[19] My finding that
Complainant requested to see a doctor at this point is based largely on the
fact that Mr. Williams did not clearly contradict him but only said he did not
recall Complainant ever requesting to see a doctor until the day he was
terminated. Tr. 774:18–20. However, as discussed below, I do find it unusual
that there was no apparent effort to elevate this initial request. I also do
not find this request, by itself, to have produced any negative response from
any of Respondent’s agents, including Mr. Williams. None of the other witnesses
acknowledged hearing about this initial request, and Mr. Williams placed
Complainant on light duty and arranged for other miners to clean and grease Complainant’s
zone after he reported the injury.

[20] The inspector
testifying, Otis Carroll, did not speak to Complainant or anyone at the quarry but
was advised by the District office to cite the operator for failing to report
the injury. Although this was hearsay testimony, it is corroborated by other
facts and was unrebutted by the operator. I find Inspector Carroll’s testimony
to be credible and that it is reasonable to believe that someone in a
management position at the quarry acknowledged Complainant had been injured on
the job and admitted that no MSHA Form 7000-1 had been filed.

[21]
“RICE”
was cited repeatedly by Mr. Clemmons in his testimony. However, there is no
evidence that Complainant was provided with the means for compressing the site
of his injury or that he was ever assisted in elevating the injury. Due to its
location (the thoracic spine), elevation could either be considered to have
occurred naturally while he was standing, or not to have occurred because there
is a therapeutic means for doing so that was not used. I thus conclude that the
operator’s approach consisted at most of merely providing ice that the
complainant could use himself and limiting his activities while he was
recuperating. In other words, he was only provided with rest and ice, and
reciting “RICE” as a mantra is singularly unpersuasive. At some point, when
this approach proved ineffective, the operator was duty-bound to treat Complainant
as having suffered an occupational injury.

[22] The MSHA Form
7000-1 report of accident does not reflect any attempt to investigate the
accident and gives the return-to-work date as April 14, even though Complainant
continued to complain about his injury after this date, and Mr. Clemmons was
aware of the complaints of injury and that Complainant’s supervisor had placed
him on limited duty.

[23] I have considered
Respondent’s difficulty in evaluating Complainant’s condition. He was on the
job for only three days after his injury and was then absent for two weeks on
medical leave for an unrelated condition. But before the medical leave, VCM was
aware that Complainant’s supervisor had placed him on restricted duty due to his
injury, giving rise to the duty to report it.

[24] A Gross-Nassar
analysis requires the movant to establish that the impermissible motivation was
a “but for” cause of the adverse employment action, i.e., the action would not
have been taken but for a complainant’s protected activity. Under Pasula-Robinette ,
the complainant must carry the burden of persuasion on the prima facie case of
protected activity, discrimination, and a causal nexus between them. But then
the burden of persuasion supposedly “shifts” to the operator, who may prove that
it would have taken the adverse action for unprotected reasons alone.

While the Commission has continued to rely
on Pasula , generally, citing the legislative history of the Act, see
Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp. , 38 FMSHRC
1914 (Aug. 2016), Riordan also noted that the Judge’s correct
application of Pasula was effectively a “but for” test. 38 FMSHRC at 1921,
n.10;  see also Consolidation Coal Co. v. Marshall , 663 F.2d 1211,
1222 (Sloviter, J., dissenting) (expressing opinion that Commission had
effectively applied the “now accepted ‘but for’ rule in mixed-motivation
cases.”).

There may not be much of a practical
distinction between the supposed burden-shifting under Pasula and the
natural effect of evidence introduced in the normal course of a hearing. The
Commission noted that the result would have been the same under either standard
in Riordan , and the ALJ on remand in Thomas v. CalPortland Co. rather
easily harmonized Commission precedent with the Ninth Circuit’s decision. 43
FMSHRC 531, 540–41 (Dec. 2021) (ALJ) (citing Sec’y of Labor on behalf of
Thomas Robinette , 3 FMSHRC 803, 818, n.20 (Apr. 1981) (“The ‘ultimate
burden of persuasion’ on the question of discrimination rests with the
Complainant and never ‘shifts.’”)).

[25] The Complaint in
this matter cites only the request to see a doctor as protected activity. See
GX-1. A miner may introduce evidence of other protected activity outside
the scope of his complaint only if the evidence was investigated by MSHA. Hatfield
v. Colquest Energy, Inc ., 13 FMSHRC 544, 546 (Apr.1991); see also Thomas
v. CalPortland Co., 42 FMSHRC 43, 51 (Jan. 2020) (declining to modify Hatfield ).
Complainant did not produce other evidence of protected activity in this case. The
scope of my decision is thus constrained by the report of protected activity
cited in the Complaint—the request to see a physician—but I do consider each of
Complainant’s alleged requests, and not merely the May 12 request on which the
Complaint appears to rest, because such requests arising from the same injury
at issue would naturally be within the scope of inquiry by a competent
investigator.

[26] Complainant also
testified fellow employees, including Mr. Williams, helped him to clean his
area after he returned to work on May 4. Even if true, this cannot be
reasonably related in any way to a hostility toward his protected activity. Although
one might question whether it would be fair in a general sense to discharge an
employee who had been led to believe others would help him clean his area, Complainant
did not report to his supervisor that he had been unable to clean or grease on
May 9 or 10.

[27] While not
advocacy per se, Complainant did testify about reporting safety issues to his
supervisors and management. However, he acknowledged that Respondent’s agents
were responsive to those reports, and there was no evidence of any hostility to
them.

[28] The Secretary has
suggested that this should detract from Mr. Ellis’ credibility. S. Post Hr’g
Br. at 20. However, the wording of the question, the answer, and Mr. Ellis’
notes leaves open the possibility that Mr. Humes told Mr. Ellis he had
discussed the issue with Mr. Williams. See Tr. at 517:17–22 (testimony
of Mr. Ellis, stating that information was given to him “by Chris through
Anthony”). Whether and to what extent Mr. Williams was involved in the decision
is not material because there is no evidence suggesting that Mr. Williams, or
any of Respondent’s other agents, may have been motivated by Complainant’s
protected activity.

[29] Despite having
the opportunity to depose witnesses in discovery and subpoena and question
witnesses at the hearing, Complainant produced no evidence that Mr. Williams
had ever discussed his initial request or any subsequent conversations about
his need for medical attention with anybody else in the company.

[30] Complainant also
says that after he returned to work in early May, following his April 15
cardiac procedure, he told Mr. Williams, Mr. Humes, and his co-workers in
passing that his back was still hurt and that he could not complete all his
tasks. Tr. 382:3–25.

[31] I also find it
odd that Complainant was under the care of physicians for a cardiac procedure
unrelated to his employment but testified he did not discuss his occupational
injury with his treating physicians. While he was seen by a cardiologist for a
specialized procedure, any person who has been provided with medical care is
aware of the general requirement to provide a detailed medical history before
receiving that care.  It is not necessary to my decision that I take
administrative notice of this common imposition, but this is another instance
where the absence of evidence is not helpful to Complainant’s credibility.

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