Pittston Coal Group/Clinchfield Coal Company

Plain-English summary

Lindia Sue Frye worked as a mechanic for Pittston Coal Group/Clinchfield Coal Company. She claimed that the company discharged her because she objected to safety meetings held near the men's bathroom and because she refused to work after experiencing dizziness. Judge Avram Weisberger found that her absence was not a protected work refusal because she did not establish a reasonable belief that the worksite was hazardous or communicate a refusal to the company. He also found that the discharge was caused by excessive absenteeism, so the discrimination complaint was dismissed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(1)
• Outcome: The discrimination complaint was dismissed.
• Key point: A Mine Act safety-retaliation claim requires protected activity and a connection between that activity and the adverse action.

Full text (FMSHRC public release)

CCASE:
LINDIA SUE FRYE V. PITTSTON COAL GROUP/CLINCHFIELD COAL
DDATE:
19890201
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

LINDIA SUE FRYE, DISCRIMINATION PROCEEDING
COMPLAINANT
Docket No. VA 88-55-D
v.
NORT CD 88-01
PITTSTON COAL GROUP/
CLINCHFIELD COAL COMPANY, Moss No. 3 Prep Plant
RESPONDENT

                          DECISION

Appearances: Jerry O. Talton, II, Esq., United Mine Workers',
District 28, Castlewood, Virginia, for Complainant;
W. Challen Walling, Penn, Stuart, Eskridge & Jones,
Bristol, Virginia, for Respondent.

Before: Judge Weisberger

Statement of the Case

 On July 11, 1988, a Complaint was filed alleging violations

of section 105(c)(1) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 815(c)(1). An Answer was filed on August 9,
1988. On August 19, 1988, Respondent filed a Motion for Summary
Decision, and a Response to the Motion for Summary Decision was
filed by Complainant on September 6, 1988. On September 14, 1988,
an Order was entered denying the Motion for Summary Decision.

 Pursuant to notice, a hearing was held on October 19 - 20,

1988, in Lebanon and Abington, Virginia, respectively. T. R.
Dino, MD, Joseph Pendergast, Samuel G. Sanders, James W. Hicks,
Darnis Salyer, William McCoy, Billy Lee Bise, Kenneth Robert
Holbrook, and Lindia Sue Frye testified for Complainant. Michael
Ray Hendrickson, Sam Sanders, Roy F. Castle, Donald W. Hughes,
and James W. Rhoton testified for Respondent. Proposed Findings
of Fact and Memorandum of Law were filed by the Parties on
December 27, 1988. Reply Briefs were filed by Complainant and
Respondent on January 10, and January 12, respectively.

Issues

 1. Whether the Complainant has established that she was

engaged in an activity protected by the Act.

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2. If so, whether the Complainant suffered adverse action as the
result of the protected activity.

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

Discussion and Findings of Fact

 Lindia Sue Frye, who worked for Respondent as a mechanic

from July 1978 to September 1987, has predicated her complaint of
discrimination against Respondent under section 105(c) of the
Act, upon assertions that she was discharged in retaliation
against her complaints with regard to Respondent's policy of
holding safety meetings adjacent to male bathroom and against her
refusal to work.

 In evaluating the evidence presented herein, I have been

guided by the Commission's recent decision of Goff v.
Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (December 1986),
which 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).

 It has been further held by the Commission that, a miner's

refusal to perform work is protected under section 105(c) of the
Mine Act if it is based on a reasonable, good faith belief that
the work involves a hazard. Pasula, supra, Robinette, 3 FMSHRC,
803 at 812; Secretary v. Metric Constructors, Inc., 6 FMSHRC 226,
229-31 (February 1984), Aff'd sub nom. Brock v. Metric
Constructors, Inc., 766 F.2d 469, 471-72 (11th Cir. 1985).
Perando v. Mettiki Coal Corp., 4 FMSHRC 491 (1988). As stated by
the Commission in Secretary on behalf of Sedgmer, et al v.
Consolidation Coal Company, 8 FMSHRC 303, at 307 (March 1986),
"The case law addressing work refusals contemplates some form of
contact or communication manifesting an actual refusal to work."

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In this connection the Commission, in the recent decision of
Secretary on behalf of Keene v. S and M Coal Company, Inc., 10
FMSHRC 1145, 1150 (1988), noted as follows:

      A miner has the right under section 105(c) of the Mine
      Act to refuse to work if the miner has a good faith,
      reasonable belief that continued work involves a
      hazardous condition. Pasula, supra, 2 FMSHRC at
      2789-96; Robinette, supra, 3 FMSHRC at 807-12. See
      also, e.g., Metric Constructors, supra. Where
      reasonably possible, a miner refusing to work
      ordinarily must communicate or attempt to communicate
      to some representative of the operator his belief that
      a hazardous condition exist. Reco, supra, 9 FMSHRC at
      995; Dunmire & Estle, supra, 4 FMSHRC at 133-35. See
      also Miller v. Consolidation Coal Co., 687 F.2d 194,
      (7th Cir. 1982) (approving Dunmire & Estle
      communication requirement).

      Protected Activities
                             I.

 According to Frye, in September 1987, she had episodes of

vomiting, and had complained of this condition to her physician
Dr. T. R. Dino. Darnis Salyer testified in this connection that
in August or September 1987, Frye had complained of being sick
and went to the nurse at Respondent's plant where she worked.
William McCoy, a coworker of Frye's, indicated that he saw her
vomit at the work site, and he could tell that she was sick.
Michael Ray Hendrickson, who was Respondent's foreman, indicated
that Frye had complained of being sick, and Donald W. Hughes, who
was Frye's evening shift foreman from early 1984 through the
middle of the year in 1985, indicated that at times he was
informed that Frye was sick. Doctor T. R. Dino, a physician with
a general practice, testified that he had been treating Frye
since September 1981, and that she has a history of an ulcer for
which he had prescribed medication. He said that on September 16,
1987, she complained of epigastric pain which she described as
burning, and which he attributed to the possible ulcer that she
had in the past. He indicated that if the epigastric pain which
she had been complaining about from September 16 - 21, 1987,
would have included nausea and vomiting he would not have let her
work. However, he indicated that his notes did not indicate she
had nausea and vomiting. He further indicated that the notes do
not indicate that he advised Frye not to work, but on
cross-examination indicated that he recalled advising her not to
work, but that he did not discuss the specific tasks that she
should not do. According to Frye, however, after she saw Dr. Dino
on September 16, 1987, she was provided with a slip to allow her
to work the following day. Significantly, Frye indicated, upon
cross-examination, that prior

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to September 22, 1987, she did not feel that it was too dangerous
for her to work. Considering this statement, along with the lack
of any contemporaneous notation by Dr. Dino with regard to her
inability to work, I conclude that prior to September 21, 1987,
the evidence fails to establish that there was any work refusal
on Frye's part due to any good faith, reasonable belief that her
continuing to work involved a hazardous condition. (c. f. Pasula,
supra, at 2789-96).

 In essence, according to Frye, while driving to work on

September 21, 1987, she suffered a dizzy spell, blacked out, and
got involved in an automobile accident. The following day Frye
saw Dr. Dino, who, according to Frye, advised her not to work as
it would be too dangerous for her and for her coworkers. Frye
also said that Dr. Dino advised her not to drive. Frye indicated
that Dr. Dino told her not to return to work until she was
evaluated by Dr. Morgan a neurologist. In essence, she testified
that she did not work subsequent to September 22, 1987, as she
was afraid to drive, and to work at her job which required her at
times to work at heights and in proximity to equipment. Dr. Dino
indicated that, assuming Frye had to work as a mechanic in a
preparation plant, which required her to tear down and repair
pumps, work in an area with water tanks, work in high places and
climb stairs, and be around machinery and welding, he would not
recommend her to work at this job or drive.

 It appears from Frye's testimony that she was motivated not

to work subsequent to September 23, 1987, in part based upon her
fear of driving. Clearly this concern relates solely to Frye's
ability to travel to the work site rather than to any hazard at
the site. She also indicated, in essence, that her job entailed
working at heights, welding, and being exposed to various
equipment, and that due to her dizziness she was afraid to work.
There is no evidence of any objective data, either clinical signs
or laboratory findings to provide a medical basis for Frye's
complaints of dizziness. Also, the record does not present
significant evidence as to the frequency, density, and duration
of Frye's dizziness. As such, the hazard of any injury is based
solely upon Frye's subjective complaints, and is not based upon a
condition or practice under Respondent's control. As such, I find
that section 105(c) of the Act did not cover Frye's not working
subsequent to September 22, 1987, based upon her dizziness.

 In making this decision, I agree with the following

statement of the law as set forth in Bryant v. Clinchfield Coal
Co. 4 FMSHRC 1380, 1421 (1982), "Any claim of protected activity
that is not grounded on an alleged violation of a health or
safety standard or which does not result from some hazardous
condition

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or practice existing in the mine environment for which the
operator is responsible falls without the penumbra of the
statute." (See also, Mastings v. Cotter Corp. 5 FMSHRC 1047
(1983)).

 I do not find Eldridge v. Sunfire Coal Co. 5 FMSHRC 408

(1983), relied on by Complainant, to be applicable to the case at
bar. In Eldridge, supra, Judge Koutras held that a miner's
refusal to work an extra shift due to fear of exhaustion, was a
protected activity within the scope of section 105(c) of the Act.
Thus the physical disability of fatigue in Eldridge, which led to
a miner's refusal to work, was as a result of having already
worked a shift and thus was clearly job related. In contrast, in
the case at bar, Frye's dizziness has not been established to
have been job related.

                         II.

 Assuming arguendo that Frye's dizziness provided a basis for

her not to work subsequent to September 22, 1987, her Complaint
under section 105(c) of the Act, must fail, as she has not
established that she refused to work, and communicated this
refusal to Respondent. Not only did Frye fail to communicate to
Respondent the reasons for her not working subsequent to
September 22, but she did not notify Respondent of any refusal to
work subsequent to that date. According to Frye, after Dr. Deno
advised her not to work, she attempted to telephone Respondent on
two occasions, but did not receive any answer. According to the
uncontradicted testimony of Sam Sanders, Respondent's
superintendent, Respondent did not hear from Frye from the time
she last worked on September 22, until she come in to see Sanders
on October 5, in response to Sanders' communication to her that
she had violated the Last Chance Agreement. Indeed, according to
the uncontradicted testimony of Sanders, on October 5, 1987, Frye
did not indicate that she felt it was unsafe to work or that it
would be hazardous to others, but merely said she some "dizziness
problems," and stated that she was afraid to drive to work (Tr.
Vol. II, 286).

 Frye indicated that Dr. Dino told her that Respondent was

advised of her illness. Respondent admitted that on or about
October 3, 1987, a nurse, at the Moss No. 3 Nurses Station had a
conversation with Dr. Dino's office, and was informed that Frye
had been treated for dizzy spells and was seen on September 16,
21, 23, and October 5, 1987. However, the only communication from
Dr. Dino to Respondent bearing on Frye's ability to work
subsequent to September 16, 1987, is a letter dated October 20,
1987, more than 1 month after Frye last worked. In the same
fashion, the only written statement from Dr. Steven W. Morgan, a
neurologist who examined Frye in October 1987, with regard to her
ability to work, is dated October 28, 1987, again more than a

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month after Frye last worked. Based upon the above, I conclude
that Frye has not established that she communicated to Respondent
her work refusal, and as such, her complaint must fail (See
Sedgmer, supra, Keene, supra.

                        III.

 In addition to safety training, which is mandated,

Respondent provides its employees, on a voluntary bases, with a
weekly safety meeting. These meetings, which last approximately
15 minutes, and for which the employees are paid time and a half,
allow the latter to ask safety questions and provide safety
suggestions. When weather permits, these meeting are held out of
doors, and in inclement weather they are held in a hot water
heater room which is adjacent to, but separated by a doorway,
from the men's bathroom. It was the testimony of Frye, as
corroborated by William McCoy, that with the door open, it is
possible to observe male nudity and men urinating in the
bathroom.(FOOTNOTE 1) However, it is possible, while attending a safety
meeting, to stand in a position where it would not be possible to
see through the doorway to the men's bathroom. Frye also
testified that during the safety meetings she observed men in the
meeting room wearing only their long underwear, and her testimony
was corroborated by Darnis Salyer. According to Frye she attended
"a lot" of safety meetings (Tr. Vol. II, 110), but that in the
fall of 1986, she first encountered male nudity at a meeting.
This was the last meeting she attended, and she asked Billy Lee
Bise, the Union Mine Committeeman, to ask Sanders to change the
location of the meetings. She said that Bise informed her that
Sanders had informed him that he would provide a different
meeting place, but that she was never approached by any of
Respondent's personnel to come to another site. She said that she
talked to Bise again about this matter 1 week prior to her
discharge in September 1987, but that no alternate sites were
provided to her. In this connection, Bise indicated that in
approximately February 1987, and again "a while" before Frye was
discharged (Tr. Vol. II, 45), he told Sanders that different
arrangements should be made for a facility for the safety
meetings as it was not proper to have females exposed to men
changing clothes. Bise indicated that Sanders told him that he
would arrange for one of the foremen to give Frye safety meetings
by herself. Thus, the only evidence of any activity on Frye's
part, that has any relevance with regard to activities protected
by the Act, was her request of Bise to ask Sanders to change the
safety meeting site. Frye thus was not

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seeking the right to attend a safety meeting, but rather was
seeking a change in its situs to a location that would not be
offensive, and an embarrassment to her. I conclude that Frye's
request is beyond the purview of the Act, and as such is not
protected thereunder.

 Motivation

 Assuming arguendo that Frye's request to have the location

of the safety meetings changed was a protected activity, Frye's
case must fail, as she has not established that her discharge was
motivated "in any part by this activity." To the contrary, the
evidence establishes that Frye's dismissal was based solely on
her excessive absenteeism.

 On January 1, 1985, Respondent instituted a Chronic and

Excessive Absentee Control Program in order to address chronic
absenteeism. In December 1985, Sanders met with Frye and informed
her that he was going to be the superintendent as of January
1986, and that he was aware of her absenteeism. He also indicated
that they should help one another so that the absenteeism would
not be a problem. In September 1986, Sanders met with Union
Officials, James Hicks and Bise, to ask them to counsel Frye with
regard to her absenteeism. In February 1987, Frye missed 16
percent of scheduled working days, and in March and April of 1987
missed 42 percent and 90 percent respectively of scheduled
working days.

 In May 1987, Frye was absent for 96 percent of the scheduled

working days, and in June her absentee rate was 44 percent. Frye
was orally counseled with regard to her absentee rate by Sanders
on April 30, June 8, and July 20, 1987. On that last date Frye
was suspended, with intent to discharge, due to excessive
absenteeism. Subsequently, pursuant to a 24 - 48 hour meeting on
July 25, 1987, Frye entered into a Last Chance Agreement in which
she agreed that she would not exceed the mine absentee rate of
four percent in any month in the next 12 months commencing August
1, 1987.

 In August 1987, Frye's absentee rate did not exceed the mine

average, however, in September 1987, her absentee rate was 39
percent. On October 1, 1987, Sanders informed Frye that inasmuch
as her absentee rate in September 1987, exceeded the provisions
of the Last Chance Agreement she was to contact the
superintendent within 48 hours. Sanders subsequently met with
Frye on October 5, 1987, and explained to her that she was to be
suspended as she had violated the Last Chance Agreement. On
October 16, 1987, Sanders sent a notification to Frye informing
her that she was being suspended with intent to discharge because
her absenteeism was in violation of the Last Chance Agreement. A
24 - 48 hour meeting ensued, and subsequently Frye was
discharged.

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Based upon the above facts, I conclude that the sole reason for
the discharge of Frye was her excessive absenteeism. This clearly
is a prerogative of management, and I do not find sufficient
evidence to establish that the discharge was motivated in any
part by any protected activities. Accordingly, the Complaint
herein must be dismissed. (See Goff, supra).

                          ORDER

 Based on the above, it is ORDERED that this proceeding be

DISMISSED.

                              Avram Weisberger
                              Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
~FOOTNOTE_ONE
1. There is some conflict in the record as to whether or not
on the dates in issue there was a door in this doorway. The
weight of the evidence tends to establish that there was a door
although it was usually kept open.