Secretary of Labor obo Daniel K. Mullins v. D&H Mining, Inc.

Plain-English summary

Daniel Mullins worked as a roof-bolting machine operator at D&H Mining's No. 3 mine and alleged that he repeatedly complained about excessive dust and improperly hung ventilation curtains. He testified that a foreman became angry after a dust complaint on January 9, 2018, and that the mine fired him the next day, while the operator maintained that he was discharged for missing work. The Judge explained that a temporary-reinstatement hearing asks only whether the discrimination complaint was frivolously brought and does not resolve conflicting testimony. She found non-frivolous issues concerning protected safety complaints, discharge, management knowledge, hostility, and the close timing between the complaint and termination. D&H Mining was ordered to immediately reinstate Mullins to his former or a comparable position with the same pay and benefits while the discrimination case continued.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)-(2)
• Outcome: The temporary-reinstatement application was granted, and Daniel Mullins was ordered immediately reinstated pending a final order on his discrimination complaint.
• Key point: Credibility conflicts are reserved for the merits stage when a miner presents a non-frivolous connection between safety complaints and discharge.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE
443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

March 19, 2018

SECRETARY
OF LABOR,

U.S.
DEPARTMENT OF LABOR on behalf of DANIEL K. MULLINS,

Complainant,

v.

D&H
MINING, INC.,

Respondent.

TEMPORARY
REINSTATEMENT

Docket
No. VA 2018-0068-D

MSHA
Case No. NORT-CD-2018-04

Mine:
D&H No. 3

Mine
ID 44-07268

ORDER GRANTING
TEMPORARY REINSTATEMENT

Before:                        Judge
Miller

This matter is
before me on an application for temporary reinstatement filed by the Secretary
of Labor on behalf of Daniel Mullins pursuant to Section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (“the Act”). The
application seeks reinstatement of Complainant to his former position as a roof-bolting
machine operator at the D&H No. 3 mine pending final disposition of a
discrimination complaint he has filed against Respondent.

The Secretary
filed the application for temporary reinstatement with the Commission on
February 16, 2018, and served a copy on Respondent by first class mail. On February
28, 2018, Respondent filed a request for a hearing. [1]
A hearing was held on March 14, 2018, in Abingdon, Virginia.

For the reasons
that follow, the application is granted.

I.       
SUMMARY
OF THE EVIDENCE

The following is
based on the allegations contained in the application and the exhibits appended
to it, and on the testimony at hearing of Daniel Mullins. Mullins was the only
witness for the Secretary and I find that his testimony was not demonstrable
false. I have also considered the testimony and arguments provided at hearing
by the mine operator, but note that the question before me is whether the
complaint of Mullins was frivolously brought. While the operator presented a
differing account from that of Mullins, the conflict in testimony will be
resolved at a later stage if the Secretary files a complaint of discrimination. 

Mullins was
employed by D&H Mining as a scoop operator and then as a roof-bolting
machine operator at the Lower Mill Blair No. 3 mine. He worked as a full-time
employee at the mine from mid-October 2017 until January 10, 2018. Mullins
testified that he frequently worked in excessive amounts of dust while
operating the roof-bolting machine because he had to work in return air while
the continuous miner was operating. He testified that he complained about the
dust frequently and believes that the Section Foreman, Gerald Ball, overheard
his complaints. He also complained directly to Foreman Ball about the curtains
for the continuous miner not being hung correctly. According to Mullins, Ball
acknowledged the complaint regarding the curtains and indicated that he would
take care of the issue. On one occasion, Mullins believes he overheard Ball telling
other miners that the company would do whatever it took to run coal.

Mullins
explained that on January 9, 2018, he complained to Foreman Ball about tramming
the roof-bolting machine from the section No. 1 entry to the No. 7 entry in
dusty conditions. The dust was the result of rock dusting, and Mullins told
Ball that the dust was so thick that he could not see well enough to tram the roof-bolting
machine. Mullins stated loudly that the dust was so thick, he could not see the
T-bar on the roof-bolting machine. Ball became angry and grabbed the curtain,
removing it from the T-bar. Mullins returned to the bolting machine after this.
He alleges that Ball was angry with him after this incident and did not speak
with him for the remainder of the shift. He believes Ball gave him an angry
look when he was leaving work that day. Mullins believes that others working in
the area observed the scene between him and Ball in the mine and heard Mullins
make complaints about the dust. Ball denies that he heard Mullins complain about
the dust. He testified that there was no issue with dust in the mine on that
day or on any other.

Mullins was
fired on January 10, 2018, through a telephone call from a co-worker. He then
called Ball and was told that he was being terminated because he had missed too
many days of work. Mullins testified that he missed work on January 10 for
personal reasons, but that he had received prior permission from Ball to miss
work that day. Ball denies that he knew about the absence in advance. Mullins
believes he was terminated for complaining about working in excessive dust. Ball
testified that Mullins was terminated for missing work.

II.     DISCUSSION

Section 105(c)
of the Act, 30 U.S.C. § 815(c), prohibits discrimination against miners for
exercising any right afforded by the Act. Under Section 105(c)(2) of the Act, “if
the Secretary finds that [a discrimination] complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the
Secretary, shall order the immediate reinstatement of the miner pending final
order on the complaint.” 30 U.S.C. § 815(c)(2). The Commission has stated that
the scope of a temporary reinstatement hearing is therefore “narrow, being
limited to a determination by the judge as to whether a miner’s discrimination
complaint is frivolously brought.” Sec’y of Labor on behalf of Price v. Jim
Walter Res., Inc. , 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d , 920 F.2d
738 (11th Cir. 1990). This standard reflects a Congressional intent that
“employers should bear a proportionately greater burden of the risk of an erroneous
decision in a temporary reinstatement proceeding.” Jim Walter Res., Inc. v.
FMSHRC , 920 F.2d 738, 748 (11th Cir. 1990).

The Commission
has explained that “it is not the judge’s duty … to resolve [any] conflict in
testimony at this preliminary stage of proceedings.” Sec’y of Labor on
behalf of Albu v. Chicopee Coal Co. , 21 FMSHRC 717, 719 (July 1999); see
also Sec’y of Labor on behalf of Shaffer v. Marion County Coal Co. ,
No. WEVA 2018-117-D, 40 FMSHRC __, slip op. at 4, 9 (Feb. 8, 2018). Nevertheless,
the Judge “need not accept testimony if it is demonstrably false, patently
incredible, or obviously erroneous.” Shaffer , slip op. at 9 (Althen,
Chairman, and Young, Comm’r).

The issues
raised in a temporary reinstatement hearing are “conceptually different from
those implicated by the underlying merits” of the miner’s discrimination claim.
JWR , 920 F.2d at 744. The temporary reinstatement proceeding addresses “whether
the evidence mustered by the miner[] to date establishe[s] that [his] complaint[]
[is] nonfrivolous, not whether there is sufficient evidence of discrimination
to justify permanent reinstatement.” Id.

While an
applicant for temporary reinstatement need not prove a prima facie case of
discrimination, the elements of a discrimination claim are relevant to the
analysis of whether the evidence presented satisfies the non-frivolous test. Sec’y
of Labor on behalf of Williamson v. CAM Mining, LLC , 31 FMSHRC 1085,
1088 (Oct. 2009). In order to establish a prima facie case of discrimination
under the Act, a complaining miner must present evidence sufficient to support
a conclusion that he engaged in protected activity, that he suffered an adverse
employment action, and that the adverse action was motivated at least in part
by that activity. Turner v. Nat’l Cement Co. of Cal. , 33 FMSHRC
1059, 1064 (May 2011); Sec’y of Labor on behalf of Robinette v. United Castle
Coal Co. , 3 FMSHRC 803, 817-18 (Apr. 1981); Sec’y of Labor on behalf of
Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d
on other grounds , 663 F.2d 1211 (3d Cir. 1981). The Commission has
acknowledged that evidence of motivation is frequently indirect, and has
identified several “circumstantial indicia of discriminatory intent: (i)
hostility or animus toward the protected activity; (ii) knowledge of the
protected activity, and (iii) coincidence in time between the protected
activity and adverse action.” Williamson, 31 FMSHRC at 1089; Sec’y of
Labor on behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510 (Nov.
1981), rev’d on other grounds , 709 F.2d 86 (D.C. Cir. 1983). The question
for the judge at this stage is whether there is a non-frivolous question as to
the elements of the case. Williamson , 31 FMSHRC at 1091.

I find that
Mullins’s application for temporary reinstatement was not frivolously brought. Mullins
testified that he made several safety complaints to the section foreman on his
shift, including a complaint about working in excessive dust on January 9,
2018. This constitutes protected activity under Section 105(c)(1) of the Act,
30 U.S.C. § 815(c)(1). While Ball testified that he had no knowledge of
any complaints by Mullins and denied that there were problems with excessive
dust at the mine, at this stage it is inappropriate to weigh the conflicting
testimony of the mine’s witnesses. Albu , 21 FMSHRC at 719. The testimony
of Mullins that he was concerned about dusty working conditions and complained
of those conditions to management is sufficient to meet the requirement of
protected activity.

Mullins
testified that his employment was terminated on January 10, 2018. While there
is some dispute as to who made the decision to fire Mullins, the mine does not
dispute that he was terminated. The action constitutes an adverse action under
the Act.

Further, there
is a sufficient nexus between the protected activity and the adverse action to
support temporary reinstatement. Mullins alleges that he complained about
working conditions to his supervisor the day before he was terminated. The
coincidence in time between the adverse action and the alleged protected
activity is evidence of an illicit motive. Sec’y on behalf of Stahl v.
A&K Earth Movers, Inc. , 22 FMSHRC 323, 325 (Mar. 2000); Chacon ,
3 FMSHRC at 2510. Mullins also testified that the person making the termination
decision had knowledge of his safety complaints, which is relevant to
discriminatory intent under Commission case law. Chacon , 3 FMSHRC at
2510. Additionally, Mullins testified that his section supervisor was angry at
him for making a safety complaint and told miners the company would do whatever
it took to run coal, suggesting hostility towards protected activity. See
id. While Respondent’s witnesses disputed each of these points, it is not
necessary to resolve conflicts in testimony at this stage. Albu , 21
FMSHRC at 719.

At hearing,
Respondent sought to present four additional witnesses that would have
testified, as Ball did, that Mullins made no complaints about dust and there
were no dusty conditions at the mine. I excluded this testimony on the basis
that it would have been needlessly cumulative and would have called for a
discussion of credibility, which is more appropriate after discovery and when
and if a discrimination petition is ultimately filed. A trial judge has the
discretion to “place reasonable limits on the presentation of evidence to
prevent undue delay, waste of time, or needless presentation of cumulative
evidence.” Johnson v. Ashby , 808 F.2d 676, 678 (8th Cir. 1987); see
also Fed. R. Evid. 403; MCI Commc'ns Corp. v. Am. Tel. & Tel. Co. ,
708 F.2d 1171 (7th Cir. 1983), cert. denied , 464 U.S. 891 (1983). Respondent
had the opportunity to question Mullins through cross-examination and to
present its defense through the testimony of Ball. The additional testimony offered
would not have changed my conclusion that the testimony of Mullins was not
demonstrably false. The Commission has explained that resolving conflicts in
testimony between the complainant and the operator’s witnesses at this stage,
“when the parties have not yet completed discovery, would improperly transform
the temporary reinstatement hearing into a hearing on the merits.” Sec’y of
Labor on behalf of Ward v. Argus Energy WV, LLC , 34 FMSHRC 1875, 1879 (Aug.
2012).

I find that Complainant
has raised a non-frivolous issue as to each element of the prima facie case. I conclude
that the discrimination complaint was not frivolously brought and Complainant
is entitled to temporary reinstatement.

III. ORDER

The Application
for Temporary Reinstatement is hereby GRANTED . Respondent is ORDERED
to, immediately upon receipt of this decision, reinstate Complainant to his
former position at the mine, or a comparable position within the same commuting
area at the same rate of pay and benefits he received prior to his discharge,
pending a final Commission order on the discrimination complaint.

/s/
Margaret A. Miller

Margaret A.
Miller

Administrative
Law Judge

Distribution:
(U.S. First Class Mail)

Alexander F.
Smith, Office of the Solicitor, U.S. Department of Labor, 201 12th Street
South, Suite 401, Arlington, VA 22202

Tony Oppegard,
P.O. Box 22446, Lexington, KY 40522

Robert J.
Breimann, Street Law Firm, LLP, P.O. Box 2100, Grundy, VA 24614

[1] . Commission rules require that a respondent must
request a hearing on an application for temporary reinstatement within 10
calendar days following receipt of the application, but allow five additional
calendar days when the application is served by mail. 30 C.F.R. §§ 2700.8(b),
2700.45(c).