Cobra Mining, Inc., Jerry K. Lester, and Carter Messer

Plain-English summary

The Secretary of Labor alleged that Cobra Mining and two individuals discriminated against Amos Hicks in violation of section 105(c) of the Mine Act. Judge Avram Weisberger found that Hicks engaged in protected safety activity and suffered adverse action, but concluded that the respondents proved he would have been fired for unprotected conduct alone. The judge therefore dismissed the discrimination complaint.

Decision snapshot

• Cited standards: 30 U.S.C. §§ 815(c) and 815(c)(2)
• Outcome: The discrimination complaint was dismissed.
• Key point: The judge accepted the protected-activity and adverse-action showing but found an affirmative defense that the discharge would have occurred for unprotected conduct.

Full text (FMSHRC public release)

CCASE:
SOL (AMOS HICKS) V. COBRA MINING
DDATE:
19900322
TTEXT:

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

SECRETARY OF LABOR FOR DISCRIMINATION PROCEEDING
AMOS HICKS,
COMPLAINANT Docket No. VA 89-72-D

      v.                            NORT CD 89-18

COBRA MINING, INC.,
JERRY K. LESTER, AND
CARTER MESSER,
RESPONDENTS

                         DECISION

Appearances: Glenn M. Loos, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary;
Kurt J. Pomrenke, Esq., White, Elliott, & Bundy,
Bristol, Virginia, for the Respondents.

Before: Judge Weisberger

Statement of the Case

 On August 22, 1989, the Secretary, on behalf of Amos Hicks,

alleged that the Operator and three named individuals violated
section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 815(c)(2) (the Act). On September 19, 1989, the
Secretary filed an Amended Complaint in which it deleted one of
the previously named Respondents, Garnett Sutherland, and
demanded various relief. Respondents filed an Answer on September
25, 1989.

 Pursuant to Notice, the case was scheduled for Hearing for

December 27-28, 1989. On December 22, 1989, in a telephone
conference call with Counsel for both Parties and the
undersigned, Respondents' Counsel advised that he was ill and
sought an adjournment. Counsel for the Secretary did not object.
The case was rescheduled and subsequently heard in Abington,
Virginia, on January 3, 1990. Amos R. Hicks, David Lee Payne,
Mary Lou Ray, and Douglas Wayne Lester testified for the
Secretary. Opie Steven McKinney, Garnett Sutherland, Danny
Osborne, Paul Horn, Carter G. Messer, and Jerry Keith Lester
testified for Respondents. Findings of Fact and Memorandum of Law
were filed by Petitioner and Respondents on February 28 and March
5, 1990, respectively. Reply Briefs were filed by the Secretary
and Respondent on March 15 and 19, 1990, respectively.

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Findings of Fact and Discussion

                         I.

 As set forth in Goff v. Youghiogheny & Ohio Coal Company 8

FMSHRC 1860 (December 1986), in order to establish a prima facie
case of discrimination under section 105(c) of the Act, it is
incumbent for the Secretary to establish, not only that the
Complainant engaged in protected activity, and that adverse
action was taken against him, but 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 Activities and Adverse Action

 Amos Hicks was employed by Respondents as a shuttle car

helper for approximately 2 1/2 years until until he was
discharged May 1989. Prior to his employment by Respondents, he
worked for Respondents' predecessor for 6 years,

 Hicks indicated that he complained to his shift foreman

Garnett Sutherland "fairly often" (Tr. 24) that support jacks
were not being set. Mary Lou Ray, a roof bolter on the same
section as Hicks, indicated that she heard Hicks "off and on"
(Tr. 194) complain about jacks not being set. Sutherland
indicated that a "few times" Hicks mentioned that jacks were not
set (Tr. 250). Hicks also indicated that, in riding the man trip
to the section, he complained to Sutherland about loose rock on
the roof.1 Ray testified that she heard Hicks complain to
Sutherland about loose rock 2 to 3 times a week. Sutherland
indicated that Hicks told him about loose rock once or twice, and
he responded by stopping the man trip and pulling down the loose
rock. David Lee Payne, who was the mine superintendent until May
12, 1989, indicated that Hicks had complained to him about the
roof on several occasions.

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Hicks further indicated that in the first part of 1989, he
complained to Sutherland that there were two miners in one split
of air, and it was so dusty that he could not see. He also
testified that he complained to Sutherland that there were
pinners working in the return air, and they were not able to see.
He told Sutherland that he would not work in those circumstances.

 Hicks also indicated that sometimes he complained to

Sutherland that a ventilation curtain was hung on the wrong side.
Ray corroborated that Hicks had complained about ventilation
problems. Douglas Wayne Lester, a shuttle car operator with whom
Hicks worked, testified that he and Hicks complained about dust
in the air. Sutherland did not rebut Hicks' testimony in this
regard, and indicated that Hicks had said that he would not work
in the dusty atmosphere like the pinners did. Payne indicated
that Hicks did complain to him that he had to run the scoop
through return air.

 It was Hicks' testimony that approximately 3 to 4 times a

week, he, along with the miners in the section, would have to
ride a scoop, rather than a man trip from the section to the mine
exit. He indicated that the scoop was crowded, there was not
enough room to lie down, and on one occasion he was caught up
against the roof and thrown out. He also indicated that he
complained to Payne about this situation. Ray indicated that she
heard Hicks make the complaints in this regard on a "consistent
basis" (Tr. 201). Payne indicated that Hicks had voiced these
complaints to him and Sutherland in his (Payne's) presence.
Sutherland, in essence, indicated that Hicks had made complaints
about riding in the scoop.

 I conclude, as testified to by Hicks, that he did make

statements to Sutherland concerning loose rock, improper
ventilation, and improper jack supports. I also find that Hicks
complained to Payne about roof conditions, and ventilation
problems. The evidence also establishes that Hicks complained to
Payne and Sutherland with regard to riding in the scoop in lieu
of the man trip. I find that in bringing these matters to the
attention of management, Hicks was engaged in protected
activities. (See, Secretary on Behalf of Robinette v. United
Castle Coal Co., supra. Further, the record before me
unequivocally establishes that on May 10, 1989, Hicks was fired,
and he thus suffered adverse action.

                          II.

Motivation

         a. When Safety Complaints Were Made

 Hicks testified on direct examination that he made a

complaint to Sutherland about safety jacks a week before he was
fired. Upon cross-examination, it was elicited that on

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October 16, 1989, in answers he gave in response to
interrogatories, he had said that he did not know when these
complaints occurred. In his testimony, he indicated that, with
regard to when he complained of inadequate jacks "it (the
instances when he made the complaints) happened at different
times all the way through" (Tr. 99). (Explanatory phrase added).
However, Sutherland did not specifically rebut Hicks' testimony
with regard to having made a complaint about inadequate jacks the
week before he was fired. I thus find, on the basis of Hicks'
uncontradicted direct testimony, that a week before his
discharge, he had complained to Sutherland about the failure to
use safety jacks.

 The weight of the evidence fails to establish that the

balance of Hicks' complaints were made within close proximity to
his discharge. Hicks testified that about a month before he was
fired, he had made complaints to Sutherland about loose rock on
the roof. He indicated that he again made such a complaint on May
8, 2 days before he was fired, and Sutherland told him to have
the man trip stopped, and to pull off the rock. However, neither
Ray nor Lester, who rode the man trip along with Hicks,
corroborated his testimony that he had made a complaint about the
loose rock 2 days before he was fired. In this regard, it was
Sutherland's testimony, in essence, that the incident, in which
the man trap was stopped, and he had Hicks pull down the loose
rock, occurred 1 month prior to his firing and not a few days
prior thereto. Hicks indicated, on direct examination, that he
complained about improper ventilation a week before he was fired.
However, upon cross-examination it was elicited that in his
response to interrogatories taken on October 16, he did not say
that he had made such complaints a week before he was fired.

 Hicks indicated that he made complaints with regard to

riding the scoop in April or May, but he did not indicate
specifically when these complaints were made. However, neither
Ray nor Lester provided any testimony with regard to the most
recent time Hicks made such a complaint prior to the time he was
fired. Sutherland indicated that Hicks had complained several
months prior to the firing. b. Reaction of Respondents' Managers
to Hicks' Complaints

 According to Hicks, when he complained about riding the

scoop, inadequate jacks, and loose rock on the roof, Sutherland
got mad. Douglas Wayne Lester, a shuttle car operator who worked
with Hicks, indicated that "sometimes," Sutherland got angry
about the safety complaints (Tr. 227). Sutherland did not
specifically rebut this testimony of Hicks and Lester.

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c. Complainant's Prima Facie Case

 Thus, the record indicates that Hicks made multiple safety

complaints and had voiced complaints about inadequate jacks week
before he was fired. Also, the weight of the evidence establishes
that Hicks' foreman, Sutherland, got mad on occasion, when
presented with Hicks' complaints. Thus, I conclude that there is
some evidence to support a finding that the firing of Hicks by
Sutherland was based, in some part, on the safety complaints that
Hicks had made.

      d. Affirmative Defense

 On May 10, 1989, at approximately 10:00 a.m., Sutherland

informed Hicks and Lester that they should take lunch.2
According to Hicks, Sutherland returned 20 minutes later and told
him and Lester to return to work. Both Hicks and Sutherland
indicated that they argued, and that Hicks said to Sutherland
"kiss my a--." Sutherland then told Hicks that he was fired.
Although there is evidence that the miners and Sutherland
regularly cursed back and forth, Sutherland indicated that he
fired Hicks after the latter made the above statement, because he
felt that Hicks was not joking.3 The following day Hicks met
with Payne and Sutherland. According to Payne, who had the
authority to hire and fire, Sutherland explained that he had
fired Hicks because he "bad mouthed him" (Sutherland) (Tr. 148).
In essence, Payne indicated that he told Sutherland to make the
decision with regard to the firing of Hicks. Payne indicated that
he talked to Jerry Keith Lester, who is a one third owner of
Respondent's operation, and the latter said that the matter of
the firing would be left up to him (Payne). Lester indicated that
prior to the firing, Sutherland had complained about Hicks

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getting his buggy late to the face, and that Hicks had made smart
remarks in the last few months when he was asked to perform some
tasks. Lester indicated that he had said it was time to do
something about it, and that he went along with Sutherland's
decision to fire Hicks. Lester indicated that he did not talk to
Carter G. Messer, who also has a one third ownership in the
operation. He said that in his conversations with Payne with
regard Hicks, Payne had said that Hicks was always clean even
though he worked in a dirty environment. Payne indicated that
after the meeting on May 8, 1989, Messer told Hicks that he was
fired and that "we've got to take a stand somewhere and we'll
just leave it at that" (Tr. 151). According to Payne, after
Messer told Hicks he was fired, Messer said that he wanted to get
rid of Hicks for a long time, but "couldn't get anything on him"
(Tr. 152). Payne indicated that prior to that time, Messer had
never said that he wanted to fire Hicks, and indeed indicated
that the latter was a good buggy man. Messer denied telling Payne
that he wanted to get rid of Hicks for a long time. He indicated
that, prior to the firing of Hicks, he did not discuss with
Lester either Hicks or his work habits. He indicated that he
supported the decision of Sutherland to fire Hicks as he was 100
percent behind his foreman. According to Messer, Sutherland never
told him that Hicks had made safety complaints. He was asked
whether he talked to Sutherland with regard to Hicks' work
habits, and indicated that Sutherland had told him that it takes
Hicks a long time to do things.

 I find that at least a week elapsed between Hicks' complaint

about jacks and loose rock, and his being fired. It is
significant that Hicks did not indicate that Sutherland
manifested any displeasure or anger at the complaint he (Hicks)
had made about loose rock on May 8, 2 days before he was fired.
There is no evidence that Payne, who according to his testimony
had the responsibility for hiring and firing, ever expressed
displeasure at Hicks for his having made safety complaints. Also,
there is no evidence that Lester and Messer, who together own two
thirds of Respondent's operation, had, prior to the firing of
Hicks, any knowledge of the latter's safety complaints. Moreover,
due to the nature of the words spoken by Hicks to Sutherland, his
foreman, and the manner in which they were spoken, I find that a
valid business reason existed for the firing of Hicks.

 I find that Sutherland found Hicks deserving of being fired

on May 10, for the manner in which he talked to him, and that he
would have fired him for this action in any event. I thus
conclude, that Respondents have established an affirmative
defense that Hicks would have been fired in any event based on
his unprotected activities alone. Accordingly, it must be
concluded that the Complaint is to be dismissed. (See, Secretary
on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, at
2799-2800 (October 1980)), rev'd on other grounds sub. non.
Consolidation Coal Co., v. Marshall, 663 F 2nd 1211 (3rd Cir.
1981)).

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ORDER

 It is hereby ORDERED that the Complaint of Discrimination

filed on August 23, 1989, be DISMISSED.

                              Avram Weisberger
                              Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

 1. Paul Horn, a scoop operator on Hicks' shift, testified

that he did not recall Hicks' complaining about loose rock on the
top of the ceiling. I find this testimony not sufficient to rebut
the testimony of Hicks, Ray, Payne, and Sutherland that Hicks did
in fact bring to the attention of management, the existence of
loose rock on the ceiling.

 2. Apparently, it was not unusual for the shuttle operators,

Lester and Hicks, to take lunch other than the noon hour, due to
interruptions in the normal mining cycle.

 3. It appears to have been common practice in the mine for

the miners and Sutherland to curse one another. The only time a
miner had been disciplined or threatened for cursing or talking
back, was on one instance when Ray, in anger, cursed Sutherland.
Sutherland then fired Ray, but rescinded this action upon advice
of Payne, and Ray did not miss any work.

      Thus, I find that the firing of Hicks by Sutherland for

cursing was not a pretext as argued by Complainant, inasmuch as
Sutherland threatened Hicks the same way he had previously
threatened Ray. Although Payne advised Sutherland not to fire
Ray, but supported his decision to fire Hicks, there is no
evidence to establish that Payne in any way was motivated by
Hicks' safety complaints. Indeed, he concurred in many of these
complaints.