Queen Anne Coal Company

Plain-English summary

Harlan L. Thurman alleged that Queen Anne Coal Company forced him to quit because harassment by co-workers and his foreman made his work unsafe. Judge Avram Weisberger found that complaints about an outside man and the number of miners operating equipment were protected safety activity, but that Thurman did not prove any adverse action motivated by those complaints. The judge found that the company told Thurman to return to work, tried to find him a day-shift position, and did not unlawfully constructively discharge him. The discrimination proceeding was dismissed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination proceeding was dismissed, and the respondent's motion to dismiss was granted.
• Key point: Protected safety complaints do not establish Mine Act discrimination without proof that the operator took adverse action because of those complaints.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

HARLAN L. THURMAN, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. SE 86-121-D
v.
BARB CE 86-51
QUEEN ANNE COAL COMPANY,
RESPONDENT

                                 DECISION

Appearances: James C. Shastid, Esq., Knoxville, Tennessee, for
Complainant;
Charles A. Wagner, Esq., Knoxville, Tennessee, for
Respondent

Before: Judge Weisberger

                        Statement of the Case

 Complainant filed a complaint with the Commission under

Section 105(c) of the Federal Mine Safety and Health Act of 1977
30 U.S.C. § 815(c) (the Act) alleging that he was illegally
discriminated against in that, in essence, he was forced to quit
his job with Respondent due to the danger to him as a consequence
of harassment from co-workers and his foreman.

 Pursuant to notice of September 16, 1986, the case was set

for hearing in Knoxville, Tennessee on November 4, 1986. On
October 22, 1986 Respondent filed a Motion for Continuance. On
October 29, 1986 an Order was issued granting the Motion for
Continuance and scheduling the case for hearing on December 2,
1986. On November 24, 1986 Respondent filed a Motion to Dismiss
on the ground that: 1. the Complaint was not timely filed, and 2.
the Complaint failed to state a violation of 30 U.S.C. § 815(c)(1).
At the hearing on December 2, 1986 an oral argument was
presented by the Parties as to Respondent's Motion. After
listening to the arguments, I denied the Motion to Dismiss that
was based upon the ground that the complaint was not timely
filed. I reserved decision on the Motion to Dismiss which was
made on the grounds that the complaint failed to state a
violation of Section 815(c)(1), supra.

 The case was subsequently heard in Knoxville, Tennessee on

December 2, 1986. At the hearing Complainant was represented by
James C. Shastid, and Respondent was represented by Charles A.
Wagner, III. Harlan Thurman and Deborah Thurman testified for
Complainant. Robert Swisher, Dempsey Lindsey, Crawford Harness,
Jeffery Mason, and Dewayne Mason testified for Respondent. On
December 9, 1986 a letter was received from Complainant in which
he advised that Attorney James Shastid was no longer representing
him. This was confirmed in a letter from Mr. Shastid received on
December 12, 1986. Subsequent to the hearing, the Parties, on
February 2, 1987 filed posthearing briefs. On February 17, 1987 a
reply brief was filed by Complainant. On the same date a letter
was received from Counsel for Respondent who, in essence, waived
his right to file a Reply Brief.

                        Findings of Fact

 The Complainant, Harlan L. Thurman, had been employed as a

miner by the Respondent, Queen Anne Coal Company, for 3 years
prior to March 1986. During that time, he worked the night shift
with the same personnel.

 The Complainant testified that in the 3 years that he worked

for the Respondent there was no outside man. Robert Swisher, the
President, and one of the owners of Respondent testified that
there has not been any outside man at Respondent's mine for
approximately 9 or 10 years. Thurman, in essence, testified that
during the 3 years he worked for Respondent his co-workers and
foreman continuously harassed him. He said that they put urine in
his tea, that his clothes were tied up, that dishwashing liquid
was poured over his clothes, that there was grease placed on the
seat of his vehicle, there were logs placed under the vehicle's
wheels, and a headlight was broken on his vehicle. He also said
that in the summer of 1985 he was sent to work alone by his
foreman Crawford Harness. It also was Thurman's testimony that
when he started to work for Respondent there was an incident when
only four men were on the shift and a miner was being operated.
In the summer of 1985, Complainant made a complaint to Dempsey
Lindsey, the Respondent's superintendent, that Crawford had
cursed him over a mistake in transporting certain supplies.
Complainant also made a complaint to Lindsey, in the summer of
1985, that the men had left him alone when he had to get a scoop
cart out of the mud.

 Complainant's work shift usually commenced at 4:00 p.m. and

concluded at 1:30 a.m. On March 6, 1986 the Complainant started
to work on the shift at 4:30 p.m. and left early at 10:30 p.m.,
in essence, because he felt that the harassment from his foreman
and co-worker, coupled with the lack of an outside man, created a
dangerous condition to him underground. Prior to March 6, 1986
the Complainant had not made any safety complaints to MSHA
Officials, or company management officials.

 On March 7, 1986 the Complainant went to see Emroy Haggard,

the bookkeeper and part-owner of the Respondent, and told him, in
essence, that Respondent's employees were taking coal. He also
"explained to him what had been going on and some of the stuff
that had been happening" (Tr. 32). Haggard then set up a meeting
for the Complainant with Swisher the following Monday. At that
meeting Complainant indicated that the men on the shift were
harassing him. Thurman had told him that at one time that
Crawford stuck his fist in his face and threatened to whip him.
Swisher also said that Thurman told him that the men on the shift
were: stealing company coal; had broken the headlight on his
truck while it was on Respondent's site; had urinated in his
food, and had locked him inside the gate. Thurman also told
Swisher that there was no outside man. He also told Swisher that
Harness does not have any education. Thurman had also told him
that when he first started to work for Respondent his shift ran a
miner with only four people on the shift.

 Swisher then convened a meeting the following Thursday with

himself, Thurman and the men on the shift along with Foreman
Dempsey. At that meeting, in essence, Complainant's complaints
were reiterated, then Swisher told the men on the shift that he
would not tolerate any horseplay. According to Thurman, Swisher
told him then to go back to work. Swisher also asked Lindsey to
find Thurman a job on the day shift.

 After the meeting Thurman intended to return to work.

However, shortly after he left, Thurman returned to the office
and told Dempsey and Swisher that, in essence, that he could no
longer work underground with the men on the shift. Thurman gave
his reason that he feared for his safety because Dempsey and
Harness were "like they were a clique" (Tr. 107). Swisher told
Lindsey to try to get Thurman a job on the day shift. However,
Lindsey has testified that in general it is difficult to get men
from the day shift to transfer to the night shift, and that in
this case none of the day shift men wanted to trade with Thurman
and work on the night shift. Lindsey also talked to the president
and manager of another mining company, where Thurman had
previously worked, with regard to obtaining a job for Thurman.

 Thurman did not return to work after he left early on March

6, and subsequently obtained other nonmining employment.

                             Issues

 1. Whether the Complainant has established that he was

engaged in an activity protected by the Act.

 2. If so, whether the Complainant suffered adverse action as the

result of the protected activity.

   3. If so, to what relief is he entitled.

                        Conclusions of Law

 Complainant and Respondent are protected by and subject to

the provisions of the Act, Complainant as a miner and the
Respondent as the operator.

 The Commission, in a recent decision, Goff v. Youghiogheny &

Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discrimination. The Commission, Goff supra at 1863,
stated as follows:

        A complaining miner establishes a prima facie case of
        prohibited discrimination under the Mine Act by proving
        that he engaged in protected activity and that the
        adverse action complained of was motivated in any part
        by that activity. Pasula, 2 FMSHRC at 2797-2800;
        Secretary on behalf of Robinette v. United Castle Coal
        Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
        may rebut the prima facie case by showing either that
        no protected activity occurred or that the adverse
        action was not motivated in any part by protected
        activity. Robinette, 3 FMSHRC at 818 n. 20. See also
        Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59
        (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
        (6th Cir. 1983) (specifically approving the Commission's
        Pasula-Robinette test).

                         Protected Activity

      Thurman's complaints to Swisher on or about March 10, 1986

with regard to the lack of an outside man, and complaints the
following Thursday that there was an incident whereby a miner
was operated with only four men in the section, both contained
allegations of safety violations and as such are considered
protected activities. The balance of the complaints made to
Swisher, Haggard, and Lindsey, all had to do with allegations of
harassment by Thurman's co-employees, were not protected
activities (see Jimmy Sizemore and David Rife v. Dollar Branch
Coal Company, 5 FMSHRC 1251 (July 1983)). In the same way,
complaints to Swisher and Haggard with regard to co-workers
taking Respondent's coal, are not safety related and thus are not
protected activities.

                         Adverse Action

 Complainant, in essence, complains of four adverse actions

by Respondent:

 1. Swisher told Thurman to go back to work on about March

13, 1986 after Swisher had heard Thurman's various complaints.

 2. The fact that Respondent had not found a job for Thurman

on its day shift.

 3. The fact that the Respondent had not cured its alleged

violation of not having an outside man.

 4. Swisher threatened Thurman by telling him about a former

employee of Respondent who was killed when a tank that he had put
a torch to had blown up.

 There is no evidence that Respondent took any adverse action

against Thurman which was motivated in any part by safety
complaints. Indeed, I find that although Thurman at the hearing
complained of unsafe practices such as not having an outside man
and operating a miner with only four men, there is no evidence
that Thurman made any complaint about these conditions to any
government official, or agent of Respondent prior to the date
that he left work, i.e., March 6, 1986. Thurman alleges that
after he made various complaints to Swisher on or about March 10
and March 13, 1986, Swisher told him to go back to work. I hold
that Swisher's comments to Complainant, in indicating on or about
March 10, 1986 that Thurman should go back to work, did not
constitute any adverse action. Surely, having Thurman return to
his usual job can not be found to be an adverse action.
Similarly, although Thurman might reasonably have felt that for
him to return to his section, where he was subject to harassment,
would be a danger to him, this can not constitute any type of
constructive discharge. In this connection, it is manifest that
the Act does not contemplate protecting a miner from harassment
from a co-worker, when that harassment is not motivated by the
miner's safety complaints. In this case, there is no evidence
that harassment from Thurman's co-workers was motivated in any
part by Thurman's complaints about not having an outside man.
Indeed, all evidence indicates that Thurman's complaints in this
regard occurred subsequent to the date that he left work. Also
there is no evidence that the harassment from co-workers was
abetted or encouraged by management. Indeed, Swisher's
uncontradicted testimony was to the effect that at the meeting
with Thurman's co-workers on March 6, 1986, after Thurman had
complained of harassment, he (Swisher) told them to stop
engaging in horseplay.

 Also, it is clear that Respondent did not commit any adverse

action in not finding Thurman a job on the day shift. Not only is
there no evidence that this was not in any way motivated by
Thurman's protected activities but to the contrary, the only
evidence in record, testimony by Dempsey, is that none of the day
shift wanted to switch shifts with Thurman. To require Respondent
to create a position for Thurman on the day shift, would unduly
interfere with its business decision in managing its mine.

 Thurman might have felt threatened by hearing Swisher

telling him of a former miner, who had some type of emotional
problem, who was killed in an accident at the mine. However,
there was not evidence that Swisher, in telling of this incident,
had any intent to threaten Thurman. Nor is there any evidence
that his telling of this incident in any way was motivated by
Thurman's protected activities. Indeed, Swisher testified that he
told of the incident in order to relate his care for his
employees.

 Complainant appears to be arguing that inasmuch as Respondent

continues to operate without an outside man at the mine, that
this is an adverse action against him. It is clear that although
failure to provide a miner with a safe work place might be a
violation under the Act but that "such a failure does not without
more constitute discrimination." (Lund v. Anamax Mining Company
4 FMSHRC 249, 251 (February 1982)).

 Therefore, based upon the above I conclude that Thurman

failed to establish the second element of a prima facie case,
i.e., that he did not show that there was an adverse action by
Respondent motivated by in any part by safety complaints. I
conclude that accordingly Complainant has not established that he
was discriminated against under Section 105(c) of the Act.

                             Order

 Based upon the above Findings of Fact and Conclusions of

Law, it is ORDERED that this proceeding be DISMISSED. As such,
Respondent's Motion to Dismiss is GRANTED.

                                Avram Weisberger
                                Administrative Law Judge