Floyd Dowlin, III

Plain-English summary

Floyd Dowlin alleged that Western Energy Company reassigned him and ended his employment in retaliation for complaining to MSHA about a dragline boom and a haul truck. The Judge credited that Dowlin engaged in protected activity but found no adverse action motivated by that activity. The company had a credible business reason for reassigning him after feeder damage, and the Judge found that Dowlin left the mine after threatening an acting supervisor and was reasonably treated as having quit. The discrimination complaint was dismissed, including Dowlin's constructive-discharge theory.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(3); 30 C.F.R. § 77.1607(c)
• Outcome: The discrimination complaint was dismissed.
• Key point: Protected activity alone did not establish discrimination where the employer's reassignment had a credible nonretaliatory reason and the record did not show an involuntary termination.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1244 SPEER BOULEVARD #280

DENVER, CO 80204-3582

303-844-3577/FAX 303-844-5268

January 20, 2006

FLOYD DOWLIN, III,

Complainant,

v.

WESTERN ENERGY COMPANY,

Respondent,

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DISCRIMINATION PROCEEDING

Docket No. WEST 2004-492-D

DENV-CD 2004-09

Mine I.D. 24-01747

Rosebud #6 Mine

DECISION

Appearances: Amber Haff, Laurel, Montana, for Complainant; Laura E. Beverage, Esq., Jackson Kelly, Denver, Colorado, for Respondent.

Before: Judge Manning

This case is before me on a complaint of discrimination brought by Floyd
Dowlin, III, against Western Energy Company (“Western
Energy”), under section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §815(c)(3) (the “Mine
Act”). Mr. Dowlin contends that he was terminated from his
employment because he complained about safety issues at the mine. An
evidentiary hearing was held in Billings, Montana. I entered a bench
decision at the end of the hearing dismissing the complaint of
discrimination.

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND
FINDINGS OF FACT

Western Energy operates the Rosebud #6 Mine, a large open pit coal mine
in Rosebud County, Montana. Mr. Dowlin filed a discrimination complaint
with the local office of the Department of Labor’s Mine Safety and
Health Administration (“MSHA”). The Secretary determined that
the facts disclosed during her investigation into Dowlin’s
discrimination complaint do not constitute a violation of section 105(c)
of the Mine Act. On September 23, 2004, Dowlin filed this proceeding on
his own behalf under section 105(c)(3) of the Mine Act. He alleges that
he suffered adverse actions because he complained about safety conditions
at the mine. He was represented by his daughter, who is not an attorney.

Dowlin worked at the Rosebud #6 Mine for about 15 years. During that
period, he operated many different types of mobile equipment but he
preferred to operate bulldozers. In late August 2002, Dowlin was
operating a water truck when he observed the boom of a dragline swing
over an open mine road. (Tr. 54, 111). He stated that a coal haul truck
drove under the boom. He reported this condition to management over the
mine radio. According to Dowlin, a representative from the company safety
department investigated the condition but he did not take any action. As
a consequence, Dowlin called the local MSHA office to complain about the
condition he observed. An MSHA inspector investigated Dowlin’s
complaint and determined that no violation of a safety standard occurred.
(Tr. 57). MSHA’s lack of enforcement angered Dowlin, so he called
MSHA again. Another MSHA inspector visited the site and wrote a
non-significant and substantial citation alleging a violation of 30
C.F.R. § 77.1607(c), as follows: “verbal testimony revealed
coal haul truck #148 passed under the boom of #124 dragline while the
dragline was in operation.” (Ex. C-2).

Between October 7, 2002 and December 6, 2002, Dowlin was on medical leave
for two months because he had broken his ribs. (Tr. 59, 115). When he
returned to work, he operated a water truck and he was scheduled to
operate a coal haul truck. (Tr. 61, 116). Dowlin preferred not to operate
coal trucks because he considered it to be “boring” and he
did not believe that coal truck drivers make as much money even though
the rate of pay was the same. (Tr. 61-62, 128, 143-44). Dowlin believed
that haul truck drivers were not given as many opportunities to work
overtime. He also believed that his assignment to operate a haul truck
violated the Family Medical Leave Act. (Tr. 63). He liked operating a
reclamation dozer because “you’re pretty well left
alone” on that job. (Tr. 142). Dowlin likes to work independently
in an area with minimal supervision.

Dowlin believes that Jack Rosander, production superintendent, and Glenn
Logan, a production supervisor, were instrumental in reassigning him to
the coal haul crew and that this reassignment was in retaliation for his
safety complaint. Dowlin testified that after he complained to them about
the assignment, he was reassigned to operate a dozer. (Tr. 64, 117).

Between December 2002 and March 2004 Dowlin was primarily scheduled to
operate a dozer on the reclamation crew. (Tr. 118-19) He operated other
equipment during that period as assigned by management. Id. On the
graveyard shift of March 2, 2004, Dowlin was scheduled to work with Harry
Stevenson to help load a train. (Tr. 64). Both men operated dozers to
push coal into the feeders. A feeder is an opening in the ground that
consists of a square concrete box that is lined with quarter inch flat
metal plate. (Tr. 232). There are about 15 feeders in the area. (Ex.
R-7). Coal falls through these feeders onto a belt that transports the
coal to the top of the tipple. Dowlin was operating a D-10 Caterpillar
and Stevenson was operating a larger D-11. Dowlin testified that
visibility was very poor that night and that steam was rising from the
coal. The feeders were covered with coal and it was impossible to see
where they were. (Tr. 65, 122). The metal lining and lips of several
feeders were extensively damaged that night. Dowlin and Stevenson were
shown the damaged feeders at 8:00 a.m. at the end of their shift. (Tr.
122). Dowlin believes that any number of people could have damaged the
feeders before his shift but that he was singled out for punishment. (Tr.
65-66, 123). He also testified that other people have damaged the
feeders, but he is the only employee who has been disciplined for
damaging the feeders. He stated that management based its conclusion that
he was responsible for the damage solely on measurements taken of track
marks made by the dozer he was operating. (Tr. 66-67). Dowlin believes
that it is more likely that Stevenson damaged the feeders that night.
(Tr. 67). Dowlin attended a fact-finding meeting with management on the
morning of March 3, 2004. (Tr. 123). He admitted at the meeting that he
had run over the lip of one or more feeders that night. Dozer operators
are required to keep some coal over the feeder area and are not supposed
to scrape down to bare dirt. Dowlin received a verbal warning for the
incident. (Tr. 67-68, 124). He admitted telling Terry Sprenger, the human
resources manager, after the meeting that he did not disagree with the
verbal warning. (Tr. 124-25).

Dowlin was told that he would be assigned to work on the coal haul crew
as a result of the feeder incident. (Tr. 69). He discussed the matter
with Jack Rosander. According to Dowlin, Rosander told him that he was
taken off the dozer because of past incidents including the feeder
damage. Rosander also cited the fact that Dowlin had run over a dragline
cable a few years earlier. Dowlin responded that another employee had run
over a dragline cable three times in less than a year. Dowlin told
Rosander that this inconsistent discipline demonstrates that he was
discriminated against in violation of the Mine Act. He testified that
other employees damaged equipment without receiving any discipline. (Tr.
144-45). Dowlin maintains that he was reassigned to drive coal haul
trucks in retaliation for his 2002 safety complaint.

After this meeting with Rosander, Dowlin talked to Terry Sprenger. (Tr.
70). Sprenger apparently told Dowlin that Rosander and Joe Micheletti, a
facilities manager, arranged for the change in his work assignment, but
Sprenger told Dowlin that he was not discriminated against as a result of
his safety complaint. (Tr. 71).

Late in the day on March 3, 2004, Dowlin went to the mine to work the
graveyard shift that started at midnight. Dowlin was “severely
upset, severely depressed” because of the way the feeder incident
had been handled by the company. (Tr. 72). Dowlin testified that because
he has a history of “depression and mental problems,” he
“just wasn’t quite [in a] right mind.” Id. He
decided that if the posted schedule showed him working on the coal haul
crew the following week, he would turn in a request for medical leave
because he “was on the verge of a mental breakdown.” (Tr. 72,
129). When Dowlin saw that he was scheduled to drive a haul truck
starting the following Monday, he turned in a medical leave request and
left the mine. He testified that he would not have turned in the medical
leave request if the posted schedule indicated that he would be operating
the dozer. (Tr. 129). His regular shift boss was not there, so he wrote a
supervisor’s name on the envelope and placed the medical leave form
where the time cards are kept in the crew shack. (Tr. 131).

Jim Holenbeck, the relief shift boss on the graveyard shift, was an
hourly employee and a member of the local Operating Engineers union with
Dowlin. Holenbeck told Dowlin what dozer he would be operating that
night. (Tr. 74). Dowlin testified that he refused to
“acknowledge” Holenbeck because he has “no use for that
man.” Id. Dowlin went to his locker, removed his personal
belongings, and put them in his truck. He then told Holenbeck that he
would have to find someone to replace him because he was going home. (Tr.
76, 136). Dowlin did not tell Holenbeck that he had requested medical
leave. (Tr. 135-36). When Holenbeck asked why he was leaving, Dowlin
testified that he replied “because of brown nosing rotten spanky
wanky snitches like you.” (Tr. 76-77). Dowlin also remembers that
he told Holenbeck that he “might have to tear his head off for
snitching”and “whip his ass.” (Tr. 77, 132, 138).
Dowlin admitted that he threatened Holenbeck. (Tr. 131-32).[1]

Dowlin then went home to rest. When he woke up he was feeling
“depressed and suicidal” so he called to make an appointment
with his doctor. (Tr. 77). After meeting with the doctor, he received a
referral to a psychiatrist and the doctor wrote a letter recommending
that Dowlin be excused from work because of his mental condition. (Tr.
78; Ex. C-3). Dowlin checked into the psychiatric ward of the Deaconess
Hospital in Billings. He was in the hospital about four or five days.
(Tr. 84). His diagnosis was “major depression, recurrent with mild
psychotic features” and “occupation related problems.”
(Ex. C-5, p. 2). He agreed to see a counselor as a condition of his
release. Dowlin had therapy sessions with several counselors. (Tr. 84-5,
88-89, Exs. C-6, C-7).

When Dowlin left the mine just before the start of his shift, Western
Energy assumed that he had quit. Mr. Sprenger wrote a letter to Dowlin
which stated that the company had been “notified that you tendered
your verbal resignation on March 3, 2004, at approximately 11:30 p.m. to
Mr. Jim Holenbeck, acting supervisor.” (Ex. C-8). Dowlin testified
that he did not tell Holenbeck that he was quitting and he left the
request for medical leave in the crew shack. (Tr. 94). Dowlin testified
that, because he was a faithful 15 year employee at Western Energy, Mr.
Sprenger should have called to find out why he left the mine. The fact
that he was never called demonstrates that Western Energy was trying to
“get rid” of him “due to safety factors.” (Tr.
92). He never received a response to the request for medical leave.
Dowlin maintains that the company terminated him for raising safety
issues.

After he was released from the hospital, Dowlin contacted his union
representative to set up a meeting with management. He did not want his
job back at that time, but he wanted the company to honor his request for
medical leave. (Tr. 97, 126-27). Dowlin testified that the union
negotiated a settlement in which he would receive $3,600 and have his
medical leave request honored, but he turned the settlement down. (Tr.
97, 127, 143).

On cross-examination, Dowlin admitted that under the collective
bargaining agreement a miner does not have the right to operate a
particular type of equipment and that management may assign and reassign
an employee to operate any other type of equipment for which he has
received training. (Tr. 112). He also admitted that Western Energy is not
required to make job assignments based on seniority. (Tr. 151). Mr Dowlin
was task trained to operate a wide range of equipment at the mine
including coal haul trucks, dozers, and scrapers. (Tr. 113; Ex. R-3).
Dowlin admitted that he could have volunteered for overtime while he was
a coal haul truck operator, but he was guaranteed work on three weekends
as a reclamation dozer operator. (Tr. 149, 152-53).[2]

Jim Holenbeck worked for Western Energy for 25 years before he retired.
(Tr. 203). He was a scraper blade operator in March 2004. Because he was
a certified mine foreman he filled in as a supervisor on an as-needed
basis. He was the acting supervisor on the graveyard shift that started
at midnight. He recalls that Mr. Dowlin asked him to meet him outside
before the shift started. (Tr. 204). Holenbeck recalls that Dowlin told
him that he was quitting. (Tr. 205). As Dowlin walked to his pickup
truck, Holenbeck asked Dowlin what was the matter. Dowlin told him that
he would not work for anyone who ratted on him. Id. Holenbeck
testified that when he tried to tell Dowlin that he did not rat on him,
Dowlin replied that he should whip his butt and he drove off. At the
suggestion of another supervisor, Holenbeck wrote a memo describing what
happened and left it on Rosander’s desk. (Tr. 205-06). In the memo,
he wrote that Dowlin told him he was quitting. (Ex. R-4).

Jack Rosander was the production superintendent in March 2004. (Tr. 214).
He testified that under the collective bargaining agreement, employees
are assigned to equipment on a weekly basis without regard to employee
seniority. (Tr. 216; Ex. R-5, p. 13). He testified that the coal crew
made as much if not more money than dozer operators in 2004. He further
testified that he prints out the weekly crew schedule on Wednesday of the
preceding week. (Tr. 220).

Rosander testified that he investigated the damage to the feeders and
took photographs. (Tr. 228; Ex. R-8). The photographs were taken the
morning after Mr. Dowlin’s graveyard shift. (Tr.230). Some of the
feeders were severely damaged in that the metal lining had been bent
back. (Tr. 232). The damage was more extensive than he could ever
remember. (Tr. 236, 251-52; Ex. R-8 p. 9). In addition, quite a bit of
dirt had been pushed into the feeders which affects coal quality. (Tr.
233). By looking at the dozer tracks and measuring their width, Rosander
determined that the damage had been caused by Dowlin’s smaller
dozer. In addition, Rosander testified that Mr. Stevenson told him that
Dowlin had been working around the feeders that were damaged. (Tr. 235).
Stevenson told Rosander that he was working up on coal piles at the east
end and Dowlin was working on the west end near the damaged feeders. (Tr.
263). Rosander also determined that the previous crew had not damaged the
feeders. Rosander testified that when he talked to Dowlin about the
damage, Dowlin acknowledged that he damaged the feeders. (Tr. 237).

Following his investigation, Rosander determined that Dowlin should be
transferred to another position. (Tr. 238). Damaging the feeders has a
negative effect on coal production. He reassigned Dowlin to a coal
hauling position. (Tr. 239). He did not expect that this transfer would
reduce the amount of money Dowlin would earn. (Tr. 261).

Rosander does not believe that the boom of the dragline extended over the
roadway in August 2002. (Tr. 239-43). He bases this conclusion on his
understanding of the configuration of the roadway and the position of the
dragline on that day. MSHA Inspector Priest did not issue a citation. A
few days later, MSHA Inspector Keller issued a citation for the
condition. The company paid the $55.00 penalty proposed by the Secretary
because it was not worth challenging. (Tr. 244). Rosander denied that
Dowlin was transferred to the coal haul trucks in December 2002 and in
March 2004 as a result of his complaint about the boom of the dragline in
August 2002. (Tr. 245).

II. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW

Section 105(c) of the Mine Act prohibits discrimination against miners
for exercising any protected right under the Mine Act. The purpose of the
protection is to encourage miners “to play an active part in the
enforcement of the [Mine] Act” recognizing that, “if miners
are to be encouraged to be active in matters of safety and health, they
must be protected against any possible discrimination which they might
suffer as a result of their participation.” S. Rep. No. 181,
95th Cong., 1st Sess. 35 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977 at 623 (1978)
(“Legis. Hist.”)

A miner alleging discrimination under the Mine Act establishes a prima
facie case of prohibited discrimination by presenting evidence
sufficient to support a conclusion that he engaged in protected activity
and suffered adverse action motivated in any part by that activity.
Secretary of Labor on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-800 (October 1980), rev’d on other
grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981); Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324,
328 (Apr. 1998). The mine operator may rebut the prima facie case
by showing either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity. Pasula,
2 FMSHRC at 2799-800. If the mine operator cannot rebut the prima
facie case in this manner, it nevertheless may defend by proving that
it was also motivated by the miner’s unprotected activity and would
have taken the adverse action for the unprotected activity alone.
Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987).

A. Protected Activity

I find that Mr. Dowlin engaged in protected activity. He testified that
he saw the boom of a dragline swing over a roadway and a truck pass under
the boom. For purposes of this decision, I credit this testimony and find
that it qualifies as protected activity.

B. Adverse Action

1. Verbal Discipline and Reassignment to Coal Haulage Trucks.

Dowlin genuinely believes that the company required him to operate coal
haul trucks in December 2002 and March 2004 in retaliation for his August
2002 safety complaint. The company contends that these equipment
assignments were made in the ordinary course of business and that they
were not “adverse” because his rate of pay did not change. In
addition, it maintains that his total wages were not adversely affected
by these assignments because he was still eligible for overtime.

It is clear that Dowlin saw these actions as “adverse” to his
interests. The company knew that he preferred to operate a reclamation
dozer and Dowlin sincerely believes that he was taken off the dozer to
punish him. The December 2002 assignment to operate a coal haul truck
cannot be construed as adverse because Dowlin was reassigned to the dozer
as soon as he requested it.

With respect to his March 2004 assignment to a coal haul truck, Dowlin
believes that he was treated differently from other employees who had
damaged equipment. He pointed to a number of employees who he believed
had caused significant damage to equipment. He also contends that the
company had insufficient cause to blame him for the damage, which shows
that management had a discriminatory motive. The company maintains that
damage to the feeders was quite substantial and that it had more than
enough evidence to determine that Dowlin caused the damage. It relies on
the fact that Dowlin admitted that he damaged one or more feeders that
evening. Western Energy contends that it was within its rights under the
collective bargaining agreement to give Dowlin a verbal warning and to
reassign him to a haul truck following the feeder incident. Rosander did
not believe that this reassignment would reduce his pay and I credit his
testimony on that issue. Thus, I find that Dowlin did not suffer an
adverse action when he was assigned to operate a coal haul truck the
following week. Nevertheless, I give Dowlin the benefit of the doubt and,
for purposes of this decision, I will assume that his verbal warning and
reassignment to operate coal haul trucks in March 2004 was an adverse
action.

In determining whether a mine operator’s adverse action is
motivated by the miner’s protected activity, the judge must bear in
mind that “direct evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect.”
Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508, 2510 (November 1981), rev’d on other grounds,
709 F.2d 86 (D.C. Cir 1983). “Intent is subjective and in many
cases the discrimination can be proven only by the use of circumstantial
evidence.” Id. (citation omitted). In Chacon, the
Commission listed some of the more common circumstantial indicia of
discriminatory intent: (1) knowledge of the protected activity; (2)
hostility or animus toward the protected activity; (3) coincidence in
time between the protected activity and the adverse action; and (4)
disparate treatment of the complainant.

Western Energy had knowledge of the protected activity. Although there
was some hostility to Dowlin calling MSHA twice in August 2002, there is
no evidence that this hostility continued into 2004. In addition, there
is no evidence that the company was hostile to employees raising safety
issues. One of Dowlin’s witnesses testified that a miner is not
required to operate equipment when visibility is too poor to work safely.
(Tr. 168). There was no coincidence in time between the protected
activity and the adverse action. Although Dowlin made claims of disparate
treatment, I credit the testimony of Rosander that the damage to the
feeders was more extensive than he had ever seen. He determined that
Dowlin should be reassigned based on the damage caused, the dozer track
marks, Stevenson’s statements, and Dowlin’s admission that he
damaged at least one feeder. Rosander did not believe that his wages
would be adversely affected. Although Dowlin believes that he was the
only employee who was transferred to another piece of equipment for
damaging the feeders, he admitted that other employees have been
transferred for causing other equipment damage. (Tr. 137). He also
testified that several employees who were not transferred caused more
equipment damage than he did. (Tr. 144). All of his evidence on this
issue is quite anecdotal and does not establish disparate treatment.

In a discrimination case, a judge may conclude that the justification
offered by the employer for taking an adverse action “is so weak,
so implausible, or so out of line with normal practice that it was mere
pretext seized upon to cloak the discriminatory motive.”
Chacon, at 3 FMSHRC 2516. The Commission explained the proper
criteria for analyzing an operator’s business justification for an
adverse action:

The Commission and its judges have neither the statutory charter nor the
specialized expertise to sit as a super grievance or arbitration board
meting out industrial equity. Once it appears that a proffered business
justification is not plainly incredible or implausible, a finding of
pretext is inappropriate. We and our judges should not substitute for the
operator’s business judgment our views on “good”
business practice or on whether a particular adverse action was
“just or “wise.” The proper focus, pursuant to
Pasula, is on whether a credible justification figured into the
motivation and, if it did, whether it would have led to the adverse
action apart from the miner’s protected activities. If a proffered
justification survives pretext analysis . . . , then a limited
examination of its substantiality becomes appropriate. The question,
however, is not whether such a justification comports with a
judge’s or our sense of fairness or enlightened business practice.
Rather the narrow statutory question is whether the reason was enough to
have legitimately moved that operator to have disciplined the miner.

Chacon, at 3 FMSHRC 2516-17 (citations omitted).

I find that Western Energy’s alleged business justification for
reassigning Dowlin to operate a haul truck is credible. The reasons set
forth by Western Energy for disciplining and reassigning Dowlin were
“enough to have legitimately moved the operator to have”
taken those actions. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938
(Nov. 1982). I conclude that the evidence establishes that the verbal
warning and reassignment to operate haulage trucks was not motivated by
Dowlin’s protected activity

2. Separation from Employment.

Dowlin argues that he was terminated from his employment in March 2004
when he refused to operate coal haul trucks and requested medical leave
for his mental condition brought on by the company’s discriminatory
actions. He contends that he did not tell Holenbeck that he was quitting
and that he left his request for medical leave in the crew shack for the
supervisor on the day shift. Given his 15 years of employment with the
company, Mr. Sprenger should have inquired as to his intentions rather
than assuming that he quit. He believes that he was fired by the company
when it chose to ignore his request for medical leave. Dowlin also points
to the intake notes of the physicians and counselors who treated him
following his termination from employment which state that his mental
condition was the result of his discriminatory treatment by his employer.

At the close of Dowlin’s case, Western Energy moved for summary
decision and asked that this case be dismissed. (Tr. 188). I took the
motion under advisement. (Tr. 201). After the testimony of Holenbeck and
Rosander, Western Energy renewed its motion. (Tr. 266). Following oral
argument, I granted Western Energy’s motion to dismiss. (Tr.
267-71).

Western Energy argues that Dowlin quit his job when he left the property
just before midnight on March 3, 2004. (Exs. C-8, R-4). Holenbeck, the
relief shift boss, believed that Dowlin had quit and he wrote a memo to
his supervisor setting forth his conversation with Dowlin. In addition,
the intake notes of the physician in Billings who saw Dowlin in March
2004 indicated that Dowlin told him that he had quit his job. (Tr. 107;
Ex. C-4, R-2). Dowlin stormed off the mine in anger and failed to return.
At the hearing, during oral argument, Dowlin stated that he “walked
off the job.” (Tr. 191). As a consequence, the company argues that
there was no adverse action.

Assuming that there was an adverse action, Western Energy argues that
Dowlin’s alleged termination is too remote in time to relate back
to his complaint to MSHA in August 2002. There is no connection between
Dowlin’s safety complaint and the company’s treatment of him
in March 2004. Finally, Western Energy argues that no relief can be given
in any event because the Social Security Administration subsequently
determined that Dowlin was eligible for disability benefits retroactive
to March 4, 2004. Thus, the Federal government has already determined
that Dowlin is not capable of working or earning a living. The Commission
cannot grant Dowlin back pay or reinstate him in the face of this
determination by the Social Security Administration.

I find that Dowlin did not establish that he was involuntarily
terminated from his employment. I find that Western Energy, in good
faith, believed that Dowlin had quit. Dowlin did not advise Holenbeck
that he was requesting medical leave. Rather, he left a form for such a
request in the crew shack. I credit the testimony of Holenbeck that he
believed Dowlin had quit. There is no evidence that Western Energy
intended to terminate Dowlin as a result of his actions.

A mine operator is not permitted to provoke a miner who has engaged in
protected activity so that he quits or takes actions that subject him to
discipline. In such a case a miner’s “impulsive
behavior” may be overlooked if he was wrongfully provoked by the
mine operator. The Commission has “recognized the inequity of
permitting an employer to discipline an employee for actions which the
employer provoked.” Sec’y of Labor on behalf of McGill v.
U.S. Steel mining Co. , 23 FMSHRC 981, 992 (Sept. 2001). Although
Dowlin did not raise this argument, a Commission judge is
“obligated to determine whether the actions for which the miner was
disciplined were provoked by the operator’s response to the
miner’s protected activity. . . .” Id. In this case,
Dowlin was not disciplined for his impulsive behavior but his behavior
led the company to believe that he had quit. “Whether an
employee’s indiscrete reaction to being provoked is excusable is a
question that depends on the particular facts and circumstances of each
case.” Sec’y of Labor on behalf of Bernardyn v. Reading
Anthracite Co., 22 FMSHRC 298, 306 (March 2000). I must determine
whether Dowlin’s conduct is within the scope of the
“leeway” courts grant employees whose “behavior takes
place in response to an employer’s wrongful provocation.”
Id. at 307-08.

I find that Dowlin should not be granted leeway in this case. I recognize
that Dowlin has a history of mental illness. Apparently he attempted
suicide in the early 1990s. (Exs. C-6, C-7). Nevertheless, the incident
that provoked Dowlin was simply the reassignment to drive a haul truck
the following week. He did not want to drive a haul truck because he felt
it was a “boring” job and he would be subject to greater
supervision by management. In response, Dowlin threatened Holenbeck and
stormed off the property. There was no immediate threat to Dowlin’s
safety or health and he was fully trained and qualified to operate a coal
haul truck. He simply preferred to operate a reclamation dozer. I find
that management’s reassignment of Dowlin to another piece of mobile
equipment did not constitute a wrongful provocation under the Mine Act.

I also find that constructive discharge does not apply to this situation.
A miner can claim that he was constructively discharged if the mine
operator “created or maintained conditions so intolerable that a
reasonable miner would have felt compelled to resign.”
Sec’y of Labor on behalf of Nantz v. Nally & Hamilton
Enterprises, Inc., 16 FMSHRC 2208, 2210 (Nov. 1994) (citation
omitted); Sec’y of Labor on behalf of Bowling v. Mountain Top
Trucking Co., 21 FMSHRC 265 (March 1999).[3] In this instance, there is no
showing that Dowlin’s safety was at risk at the time he left the
mine or that, by driving coal haul trucks, he would be placed in an
unsafe situation. He had driven coal haul trucks in the past and there
was no evidence that these trucks were unsafe. In addition, Dowlin was
assigned to operate a dozer on that shift. A reasonable miner would not
have felt compelled to quit. Dowlin’s decision to leave the mine
was related to his idiosyncratic mental impairment rather than a
reasonable fear that he would be asked to perform an unsafe task.

Dowlin contends that mine management, including Rosander, harassed him
for years and that the events of early 2004 were the final straw. He
feels that Western Energy treated him unfairly and that the company is
partially responsible for his mental problems. Dowlin introduced evidence
to show that Rosander and other managers had been treating him unfairly
well before he made his safety complaint in August 2002. (Tr. 38-39,
49-50, 137-38, 145-46, 158). Although such disparate treatment may have
been unfair, assuming Dowlin’s allegation is correct, the
Commission “does not sit as a super grievance board to judge the
industrial merits, fairness, reasonableness, or wisdom of an
operator’s employment practices except insofar as those policies
may conflict with rights granted under section 105(c) of the Mine
Act.” Deliso v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec.
1990). As stated above, I find that Western Energy’s actions did
not violate the anti-discrimination provisions of section 105(c).

III. ORDER

For the reasons set forth above, the discrimination complaint filed by
Floyd Dowlin, III, against Western Energy Company under section 105(c) of
the Mine Act is DISMISSED.

Richard W. Manning

Administrative Law Judge

Distribution:

Amber M. Haff, 6680 Duck Creek Road, Laurel, MT
59044 (Certified Mail)

Floyd Dowlin, III, 1113 W. Armells Road, Forsyth, MT 59327-9469
(Certified Mail)

Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street,
Suite 2150, Denver, CO 80202-1958 (Certified Mail)

RWM

[1] In January
2004, Dowlin damaged a metal culvert as he removed it with his dozer. He
called Holenbeck a snitch on March 3 because Dowlin believes that
Holenbeck told management about the damage. Dowlin was not disciplined
for the damage. (Tr. 132-35).

[2] Five miners also testified on
behalf of Dowlin. Most of the testimony concerned the events of late
August 2002 when the boom of a dragline swung over a mine road. Several
miners, including a union steward, testified that they were not aware of
anyone else being disciplined for damaging feeders. (Tr. 50, 156, 176).
There was also testimony that miners had been disciplined for damaging
other equipment. (Tr. 50, 188). One miner testified that if an employee
does something that management does not agree with, he will likely be
assigned to a job that he does not like. (Tr. 174). Another miner
testified that an employee is permitted to slow down or shut down his
equipment if visibility is too poor to work safely. (Tr. 168). Another
miner testified that he preferred to operate coal haul trucks rather than
work on a dragline.

[3] Constructive discharge is
typically upheld in situations were the employer’s conduct is
egregious. See, e.g., Liggett Indus., Inc. v. FMSHRC, 923
F.2d 150, 152-53 (10th Cir. 1991) (court agreed that welder with
diagnosed respiratory condition was justified in quitting inadequately
ventilated mine where operator demonstrated no intention of improving
ventilation); Simpson v. FMSHRC, 842 F. 2d 453, 463 (D.C. Cir.
1988) (miner justified in quitting rather than continuing to work in mine
in which operator was responsible for multiple "blatant" safety
violations that had repeatedly and continually occurred).