Todd Descutner v. Newmont USA (ALJ decision, October 31, 2012)

Plain-English summary

Todd Descutner, a haul-truck driver at Newmont's Leeville underground gold mine, alleged that he was fired after reporting safety concerns, including open ground and incomplete pre-shift inspections. Judge David F. Barbour credited Descutner's account of the latest complaint and found that its close timing, his supervisor's knowledge, and hostility supported a discrimination finding. Newmont said it fired Descutner for property damage, insubordination, and its progressive discipline policy. The judge found the insubordination claim not credible and concluded that Newmont failed to show it would have fired Descutner for unprotected conduct alone. He granted the complaint, ordered reinstatement, expungement, a posted notice, back pay, interest, costs, and attorney fees, and retained jurisdiction to determine the monetary amounts.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: Discrimination liability was established and reinstatement plus make-whole relief was ordered, with specific monetary amounts reserved for later proceedings.
• Key point: An operator's stated discipline reasons do not defeat a discrimination claim when the protected activity helped motivate the firing and the asserted independent reasons are not credible.

Full text (FMSHRC public release)

              FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                            OFFICE OF ADMINISTRATIVE LAW JUDGES
                            601 NEW JERSEY AVENUE, NW SUITE 9500
                                    WASHINGTON, DC 20001
                           TELEPHONE: 202-434-9953 / FAX: 202-434-9949


                                      October 31, 2012

                                               :

TODD DESCUTNER, : DISCRIMINATION PROCEEDING:
Complainant, :
: Docket No. WEST 2011-523-DM
v. : No. WE-MD-2010-18
:
NEWMONT USA, : Mine: Leeville Mine
Respondent. : Mine ID: 26-02512
:
:

                                         DECISION

Appearances:

Larson A. Welsh, Esq., Cogburn Law Offices, Henderson, NV, on behalf of Todd Descutner

Kristin R. White, Esq. and Karen L. Johnston, Esq., Jackson Kelly PLLC, Denver, CO, on behalf of Newmont USA

Before: Judge David F. Barbour

   This case is before me upon a complaint of discrimination brought by Todd Descutner

(“Descutner”), a miner, against Newmont (“Newmont” or “the company”), pursuant to
§105(c)(3) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c).

    Complainant Descutner contends that he was unlawfully discharged by Respondent

Newmont on June 9, 2010. Descutner alleges that his termination was motivated by discriminatory animus toward his protected activities, which consisted of reporting various safety issues regarding Newmont’s facility. Newmont answers by denying Descutner’s allegation of unlawful discrimination, and by asserting instead that Descutner was discharged under Newmont’s progressive discipline policy for damaging Newmont’s property and for insubordination.1

   1
      Generally under the policy, the first offense results in a warning, the second offense

results in a suspension, and continued offenses may result in termination. Only offenses that occur within a year prior to the adverse action are used to determine the level of discipline that is imposed. Resp’t. Ex. 27. The policy is explained more fully infra.

                               PROCEDURAL BACKGROUND


   On or about September 28, 2010, Descutner filed a discrimination complaint with the

Mine Safety and Health Administration (“MSHA”) pursuant to §105(c)(2) of the Act.2 Resp’t. Br. 2. The complaint was investigated by MSHA, and MSHA determined that no discrimination had occurred. On January 13, 2011, Descutner filed a discrimination complaint on his own behalf with the Federal Mine Safety and Health Review Commission pursuant to §105(c)(3) of the Mine Act.3 A hearing was held on June 5, 2012 in Elko, Nevada. Subsequent to the hearing both parties submitted briefs.
2
§105(c)(2) of the Mine Act states, in relevant part:

                     Any miner . . . who believes that he has been discharged,
             interfered with, or otherwise discriminated against by any person
             in violation of this subsection may, within 60 days after such
             violation occurs, file a complaint with the Secretary alleging such
             discrimination. Upon receipt of such complaint, the Secretary shall
             forward a copy of the complaint to the respondent and shall cause
             such investigation to be made as he deems appropriate.
   3
       §105(c)(3) of the Mine Act states, in relevant part:

                     Within 90 days of the receipt of a complaint filed under
             [§105(c)(2)], the Secretary shall notify, in writing, the miner . . . of
             his determination whether a violation has occurred. If the
             Secretary, upon investigation, determines that the provisions of this
             subsection have not been violated, the complainant shall have the
             right, within 30 days notice of the Secretary’s determination, to file
             an action in his own behalf before the Commission, charging
             discrimination or interference in violation of [§105(c)(1)]. The
             Commission shall afford an opportunity for a hearing . . . and
             thereafter shall issue an order, based upon findings of fact,
             dismissing or sustaining the complainant’s charges and, if the
             charges are sustained, granting such relief as it deems appropriate,
             including, but not limited to, an order requiring the rehiring or
             reinstatement of the miner of his former position with back pay
             and interest or such remedy as may be appropriate. Such order
             shall become final 30 days after its issuance. Whenever an order is
             issued sustaining the complainant’s charges under this subsection,
             a sum equal to the aggregate amount of all costs and expenses
             (including attorney’s fees) as determined by the Commission to
             have been reasonably incurred by the miner . . . for, or in
             connection with, the institution and prosecution of such
             proceedings shall be assessed against the person committing such
             violation.





    In his brief, Descutner continues to assert that he was terminated because of various

safety complaints made to Gus Friesen, his acting supervisor, in 2010. Descutner alleges that he made three safety complaints in 2010 and that later in the year he was involved in a safety- related incident. Compl. Br. 3-7. The first complaint was made between January and February 2010 when he reported an open ground safety hazard to a loader operator. The second complaint was made between March and April 2010 when he reported an open ground safety hazard at the wash bay directly to Friesen. The third complaint was made between May and June 2, 2010, when he informed Friesen that some haul truck drivers were not following proper pre-shift inspection procedures to which Friesen allegedly responded by telling him to mind his own business. The safety-related incident occurred on June 2, 2010, when Descutner went to the lube bay to fix a leak in his haul truck and Friesen became angry at him upon learning the low number of loads Descutner had completed that day. Compl. Br. 3-7.

    The incident which directly led to Descutner’s termination occurred on June 3, 2010. On

that day, Descutner backed his haul truck into a lay-down where he inadvertently parked on some supplies (roof bolts).4 Friesen approached Descutner and scolded him for parking in the lay-down on the roof bolts. Descutner responded by swearing. Tr. 418. On June 7, 2010, Descutner met with upper management to discuss the situation. Tr. 426-427. On June 9, 2010, Descutner was terminated. Tr. 377. In its brief, Newmont continues to deny the allegation of unlawful discrimination, instead asserting that Descutner was discharged in accordance with its progressive discipline policy for property damage and insubordination. Resp’t. Ex. 27, Tr. 440, 464.

                                    THE STIPULATIONS


    At the start of the hearing, counsel for Newmont read the following joint stipulations into

the record:

             1. [Newmont] is an operator within the meaning of the Mine Act.

             2. [Newmont’s Leeville Mine] is subject to the jurisdiction of the
             Mine Act.

             3. At all times relevant to this proceeding, Descutner was a miner
             within the meaning of §§ 3(g) and 105(c) of the Mine Act.

             4. The administrative law judge has jurisdiction over this matter.

   Tr. 15-16.



   4
       A lay-down is an area used to store supplies and equipment for use in the mine. Tr. 163.




                               FACTUAL BACKGROUND


                        THE MINE AND DESCUTNER’S JOBS

     Descutner worked for Newmont from May 2006 until June 2010. Tr. 22. He was first

employed at Newmont’s Deep Post Mine. Tr. 23. In January 2010 he was transferred to Newmont’s Leeville Mine after the Deep Post mine closed. Tr. 34. The Deep Post mine was an underground gold mine as is the Leeville mine. Tr. 279, 366. At the times relevant to this matter, five general foremen oversaw the Leeville Mine operations department and maintenance department. Tr. 367. The operations department consisted of three sub-departments - production, development and support. Tr. 367. Thayne Church was the general foreman for the production sub-department. Tr. 368. The production sub-department consisted of four crews of approximately 100 underground miners in total. Tr. 368. Each crew had its own supervisor, known as the salaried foreman. Tr.157, 369. Gus Friesen was the salaried foreman for Crew 4 and supervised approximately 40 underground miners. Tr. 195. Twelve haul trucks were operated in the Leeville Mine in 2010. Tr. 195. Descutner worked as a haul truck driver for Crew 4 between January and February 2010 and between May and June 2010. He rotated 12 hour shifts from 7a.m. to 7p.m. Tr. 35. During March and April 2010, Descutner briefly left Crew 4 to work at the wash bay where he cleaned haul trucks and other equipment. Tr. 45.

                         PROGRESSIVE DISCIPLINE POLICY

    Under Newmont’s written progressive discipline policy, Newmont has the right to issue

an adverse employment action for repeated offenses of misconduct or poor performance, as long as such offenses occur within a year of the adverse employment action. Resp’t. Ex. 27, Tr. 31, Tr. 433. Under the policy, first offenses are punished by a written warning, and repeated offenses are punished by suspension for unspecified periods and eventually termination. The policy does not specify when repeated offenses will be punished by termination, i.e., whether three offenses by an employee within a year will result in a suspension or termination. Resp’t. Ex. 27. Newmont and Descutner interpret the policy differently. Newmont alleges that under the policy, a third offense by an employee within a year is punished by termination. Tr. 440, 464. With regard to Descutner, Newmont contends that the first offense in a relevant time span occurred in February 2010 (inadequate work performance), and the second and third offenses occurred on June 3, 2010 (property damage and insubordination). Tr. 440, 464. Descutner alleges that under the policy, a third offense by an employee within a year is punished by a three day suspension. Tr. 31-32.

    The policy also states that even if an employee has not received prior discipline, he can

be terminated at any time when the seriousness of the offense requires termination. Resp’t. Ex.

27. The policy lists numerous examples of offenses warranting discipline including sleeping on
    company time, improper or inadequate job performance, violation of health or safety rules and regulations, carelessness, damage to the property of the company, insubordination, and use of profane language to another person. Resp’t. Ex. 27.

                PRIOR DAMAGE TO COMPANY PROPERTY IN AUGUST 2007
    
    While Descutner was at Newmont’s Deep Post mine in 2007, he was disciplined on three
    

    different occasions for causing damage to Newmont’s property. Tr. 23-30. Since these incidents occurred in 2007, they did not occur within a year of his termination on June 9, 2010, and are irrelevant under Newmont policy for calculating progressive discipline for the June 3, 2010 incident. Tr. 31, Tr. 433. However, these incidents in 2007 are relevant as an indicator of the level of discipline Newmont previously handed down to Descutner for damage to company property. On August 2, 2007, Descutner drove his haul truck into a retaining wall knocking it down. As a result he received a written warning. Tr. 23-25. On August 8, 2007, Descutner’s haul truck became stuck underground damaging Newmont property. As a result he received a three day suspension. Tr. 26. On August 30, 2007, Descutner drove away from a fuel bay with the wiggins still attached to his haul truck. 5 This mishap caused a fuel spill that damaged Newmont property. As a result, Descutner received a five day suspension. Tr. 28-29.

                 INADEQUATE WORK PERFORMANCE IN FEBRUARY 2010
    
     In February 2010 Descutner was given a three day disciplinary layoff. Tr. 41-42. This
    

    layoff was based on an incident on February 6, 2010, where Friesen alleged that Descutner slept in his truck. On that day, Friesen concluded that Descutner was sleeping since Descutner had not answered his radio, and since Friesen saw Descutner resting his head on the steering wheel of his truck. However, Friesen admitted that he did not specifically call for Descutner to respond on the radio instead generally calling for truck drivers to respond, and that Descutner opened his truck door before Friesen arrived at his truck. Tr. 252-253. Descutner denied that he was sleeping and instead claimed that he had simply laid his head down to rest a kink in his neck. Descutner testified as follows:

                I had a kink in my neck. I put my head on the steering wheel to
                kind of rest it because I have a head lamp on and a hat … I then
                had my eyes open, I was listening to the radio. I saw some lights
                coming around my [truck] bed. I lifted up my head, looked at the
                door. They saw me lift my head and said I was sleeping, and that’s
                what I was written up for.
    
      Tr. 42.
    

He appealed the discipline which resulted in a reduction to a one day suspension for inadequate job performance. Tr. 41-43.

      5
          A wiggins is a type of fuel nozzle. It connects the diesel fuel hose to the haul truck.

Tr. 28.

                           FIRST 2010 SAFETY COMPLAINT

    Between January and February 2010 Descutner, who was driving a haul truck, reported a

safety concern to the loader operator under whom he was working regarding an open ground safety hazard. Descutner testified as follows:

           We were being loaded at a heading, and I noticed some open
           ground over where we were getting loaded. And open ground
           would be like where there’s . . . bolts and there’s steel mesh, steel
           strung, steel fence that protects the falling rock. I went to the
           loader operator . . . He made a call and Gus [Friesen] showed up.
           Inspected the heading with the loader operator. Then the loader
           operator came back and said he felt . . . that it was okay to go
           ahead and keep loading there.

   Tr. 40-41.

Descutner alleges that following this incident, he altered his working route to avoid the open unsafe ground, and his new working route resulted in lower production numbers. Tr. 41.

                         SECOND 2010 SAFETY COMPLAINT

    After the allegation of sleeping in February 2010 Descutner requested and was granted a

transfer to the wash-bay. Tr. 44-45. While working at the wash-bay between March and April 2010 Descutner reported directly to Friesen a safety concern regarding an open ground hazard at the wash bay. Tr. 46-47. Descutner testified that at the end of a shift in the wash bay, he noticed “two or three feet of open ground that was dropping rocks about 15 feet or so to where miners walked.” Tr. 46. Descutner admitted that after he reported this condition to Friesen, Friesen took care of the problem. Tr. 47, 140. Friesen testified that he was not upset with Descutner for bringing this situation to his attention, and that the problem did not take long to fix. Tr. 193.

                           THIRD 2010 SAFETY COMPLAINT

    Between May and June 2, 2010, Friesen held a meeting with Crew 4 regarding start-up

and shut-down times. Descutner alleged he made a safety complaint to Friesen after this meeting. Tr. 200-201. During the meeting, Friesen stated certain miners were not getting enough loads done each day since some haul truck drivers were arriving at their headings later than others. Friesen testified as follows:

           [P]art of the purpose of dispatch is to record the number of tons
           and number of feet of development coming out of different areas in
           the mine. So we’ll typically ask dispatch to track start-up times for
           the equipment . . . and shut-down times . . . So we can just keep an
           eye [on] when the [equipment is started] and when the equipment






             is shutting down. [T]ypically the problem of either late start-ups or
             early shut-downs is what we’re trying to address.
             So we asked dispatch to . . . track the previous three or four shifts
             of when the start-up times and when the shut-down times were,
             and we noticed the start-up times were . . . gradually getting longer
             and longer than they probably should have been, and the shut-
             down times, is typically your biggest problem, because it’s the end
             of shift. Guys are wanting to get home, so they’ll park their truck
             early to get to the shaft station early . . . And if those times are
             getting a little farther away than we think they should, then yeah,
             we’ll address the crew and let them know . . . we want them to
             work the whole shift.

   Tr. 201-202.

     In response to a question regarding what he meant when he said that start-up was longer

than it should be, Friesen testified:

             So typical pre-inspections on haul trucks would take anywhere
             from 15 to 20, 25 minutes. If there’s any issues, like . . . the
             batteries would go dead, trucks wouldn’t start . . . but . . . those
             issues are typically called in to dispatch to let us know that here’s
             an issue. Here’s why . . . our start-up times are long.

   Tr. 202.

    After this meeting, Descutner testified that he approached Friesen and told him that the

truck drivers who were arriving earlier at their headings than other drivers were probably able to do so because they were not following proper pre-shift inspection procedures. Tr. 57-58. Descutner testified as follows:

             I explained to [Friesen] that a lot of times when you’re doing your
             pre-shift inspection and you’re doing it right by the Company
             rules, that it takes a little bit of time. And that he should probably
             look a little bit more towards the guys that are getting there so
             early, as they’re not probably doing their inspection properly . . .
             [Friesen] didn’t have much to say. He pretty much said that I
             should probably just . . . worry about . . . myself.

   Tr. 58.






    Friesen denied that this conversation occurred. Tr. 204, 206.6 In response to a question

asking whether Descutner had ever raised the issue of pre-shift exams to him, Friesen testified “To my memory, he never raised it.” Friesen implied that because cutting short pre-shift exams was a serious matter, he would have recalled this discussion if it had occurred. Tr. 206. Friesen also stated that if Descutner had told him some drivers were failing to do proper pre-shift inspections, he would have acted upon it. He stated:

           Like I [said], it’s . . . addressed . . . in safety meetings . . . Doing
           proper heading inspections and proper equipment inspections . . .
           they go hand in hand. It’s just important to maintain safety to the
           operators as well as everyone else around them, right? And if that
           was a concern of certain individuals, we’d audit them. We have
           mobile leadmen throughout the mine, and there’s three
           underground shifters, foremen, salaried foremen for operations
           alone, that we can audit processes and do inspections . . . to make
           sure that inspection process is done correctly.

Tr. 204-205.

                           2010 SAFETY-RELATED INCIDENT

    On or around June 2, 2010, Descutner was notified that his haul truck was leaking

hydraulic fluid and so he took his truck to the lube bay for further inspection. Tr. 59-60. While he was at the lube bay, Friesen approached Descutner about the number of loads Descutner had hauled that night. Upon hearing that Descutner had completed a low number of loads, Friesen responded by stating that such a small number of loads was “ridiculous” for that time of night. Tr. 60.

               DAMAGE TO COMPANY PROPERTY ON JUNE 3, 2010

   On June 3, 2010, Descutner, while operating a haul truck, backed into a lay-down and ran

over some roof bolts lying on the ground. As Friesen passed by, he saw Descutner’s truck in the lay-down. Friesen stopped his vehicle, got out and walked to Descutner’s truck. Friesen asked Descutner to get out of the truck. Once Descutner exited the truck, Friesen “asked him . . . if he knew he was parked on the top of supplies in the lay-down, and he indicated he didn’t know.” Tr. 165. Friesen then informed Descutner that the event qualified as a reportable incident and therefore, both a statement and a drug and alcohol test would be necessary. Tr. 166. At some point during the conversation, Descutner began cursing. Friesen testified that:

   6
      Foreman Thayne Church may have been present at the pre-shift meeting. However,

Church could not remember if he was present and testified that he could not rule out the possibility that the conversation between Friesen and Descutner occurred. Tr. 409-410.

           When I indicated that he’d have to fill out a statement, do a drug
           and alcohol exam, and report it as an incident, he . . . became angry
           at [me]. He began cussing at me. He said that I was f***** up,
           and he said that I wasn’t doing my job. He said that he thought I
           was here to look out for the miners, and to help . . . the working
           man out, but [he said that] I was just one of the good ol boys. He
           said that the nipper operator should have gotten in trouble.[7] It
           was bull**** that he was getting in trouble because the nipper
           operator didn’t do his job by putting the bolts on the ground in that
           [lay-down].[8]

   Tr. 166.

    Friesen and Descutner then walked to Friesen’s tractor. While they were waiting at

Friesen’s tractor to go above ground for the drug and alcohol test, Friesen asked Descutner if he had inspected the lay-down before backing into it. Tr. 169. Descutner told him that he had opened his door and shined his cap lamp from the operator’s seat into the lay-down. Tr. 63, 112-

113. While they were talking, Jordan Duke, another member of Crew 4, came to borrow a
     flashlight from Friesen. Tr. 278. While Duke did not hear all the words being said, he concluded from Descutner’s gestures and body language that Descutner was aggravated. Tr. 288.

     Descutner and Friesen then proceeded to the shaft station on Friesen’s tractor. Once they
     

     arrived on the surface, Descutner took a drug and alcohol test in the presence of Friesen and another foreman, James Wild. The test came back negative. Tr. 174. Friesen then telephoned the general foreman for production, Thayne Church, and informed him of the incident. Friesen and Church decided that Descutner would remain on the surface and fill out a statement, and then he would be suspended pending the company’s investigation of the incident. Tr. 173-175. Friesen then conducted the initial investigation of the incident, obtaining statements from himself, Descutner, Wild, and Duke, and taking photographs and measurements of the lay-down at issue. Tr. 175-176. Newmont alleges that Friesen did not make any recommendation to Church regarding the level of discipline Descutner should receive. Tr. 188. However, Friesen conceded that he told Church that he believed Descutner should receive some type of discipline. Tr. 244.

                          INSUBORDINATION ON JUNE 3, 2010
     
     As stated above, after allegedly damaging the roof bolts on June 3, 2010, Descutner
     

     became involved in a heated discussion with Friesen. Descutner admitted that he cursed during this conversation, but alleges that he swore generally (i.e. “the situation’s f* up”). Tr. 115.
     7
     A nipper operator drives a flat-bed truck that hauls material from the shaft station to the
     lay-down areas that are located throughout the mine. The nipper operator is responsible for placing material in the lay-downs. Tr. 167.
     8
     Descutner maintained that the nipper operator should have leaned the roof bolts against
     the rib, not put them on the mine floor. Tr. 64.

He denies swearing at Friesen (i.e. “you’re f* up”). Tr. 115. Descutner also alleges that he swore only after being provoked by Friesen. Descutner claims Friesen over-reacted by yelling at him for endangering people’s lives. Descutner testified,“I do remember . . . I was on some bolts
– and I admitted that, but all of a sudden the accusations started to getting to where I could have killed somebody.” Tr. 67.

    Friesen stated that Descutner swore at him directly, telling him that he, Friesen, was

“f* up.” Tr. 166. Friesen testified that while underground miners have used profanity in conversations with him before, Descutner’s profanity was different since it was targeted at Friesen. Friesen stated, “Profanity is used . . . not really directed to anybody. [W]hat was different [about Descutner’s profanity] is it was directed at me. It wasn’t about a situation, it was directed at myself.” Tr. 190.

                DUE DILIGENCE MEETING AND TERMINATION

    Descutner then attended a due diligence meeting on June 7, 2010. Tr. 426-427, Resp’t.

Ex. 24. According to Church, a due diligence meeting is when “we meet with the employee, and his representative if he has one, and we’ll sit down and go through his statement and go back through the incident. See . . . anything else come of it.” Tr. 377. Thayne Church (the general foreman for production), Dennis Zimmerman (the Human Resources representative) and some other supervisors represented management at this meeting. Tr. 425-426, 429.

     On June 9, 2010, during a meeting with Church, Zimmerman and another supervisor,

Descutner was informed that he was being terminated. Tr. 438-439. Gus Friesen was not present at either the due diligence meeting or the termination meeting. Tr. 425-426, 438-439. Zimmerman testified that Descutner was terminated under the progressive discipline policy for damage to company property and insubordination. Tr. 418. Church testified that the termination decision was heavily based on the statements of various witnesses, photographs, and diagrams of the lay-down, all of which were compiled by Friesen. Tr. 374-376, 381-382. Church specifically testified that he did not independently interview any other witnesses to the incident, thus confirming his heavy reliance on the witness statements collected by Friesen during his investigation. Tr. 390.

     Church also stated that he believed Descutner had been insubordinate to Friesen partially

because of Descutner’s attitude at the due diligence meeting. Church testified, “You couldn’t get a straight answer. It was a pretty rough interview.” Tr. 382. Descutner countered by stating that he felt the management representatives treated him aggressively since “they’d ask me a question, I’d answer it, and their next question would accuse me again.” Descutner alleges that he learnt for the first time that he was being accused of insubordination at the due diligence meeting. Tr. 78-79.

                                       THE LAW

    In order to establish a prima facie case of discrimination under §105(c)(1) of the Mine

Act, a miner must demonstrate by a preponderance of the evidence “(1) that [the miner] engaged in a protected activity, and (2) that the adverse action of which the miner complains was motivated in any part by the protected activity.” Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). Under §105(c)(1) safety complaints are specifically mentioned as activity that warrants protection. 30 U.S.C.
§820(c)(1). Generally, an adverse action is an act or omission by the operator that subjects the affected miner to a detriment in his employment relationship or to discipline. Sec’y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-1848 (Aug. 1984). Adverse actions include discharge, suspension, demotion, coercive interrogation and harassment over the exercise of protected rights. Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985).

    The Commission has noted 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 (Nov. 1981), rev. on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Circumstantial evidence may include: (1) coincidence in time between the protected activity and the adverse action, (2) knowledge of protected activity, (3) hostility or animus toward the protected activity, and (4) disparate treatment. Chacon, 3 FMSHRC at 2510. The more hostility or animus is specifically directed toward the protected activity, the more probative it is of discriminatory intent. Id.

     Once the complainant has established a prima facie case of discrimination “[t]he

operator may attempt to rebut [the] prima facie case by showing either that the complainant did not engage in protected activity or that the adverse action was in no part motivated by protected activity.” Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 825 n.20 (Apr. 1981). The operator may also affirmatively defend by proving by a preponderance of the evidence that he was motivated by both the miner’s protected and unprotected activities and would have taken the adverse action for the unprotected activity alone. Robinette, 3 FMSHRC at 818.

    For the reasons that follow, I find that Descutner has successfully established a prima

facie case of discrimination, and that Newmont has failed to either rebut the prima facie case or prove an affirmative defense to the discrimination complaint. Therefore, I grant Descutner’s complaint and find that he is entitled to relief.

                        COMPLAINANT’S PRIMA FACIE CASE

                                 PROTECTED ACTIVITY

    The parties agree that the first two safety complaints made by Descutner in 2010

constitute protected activity under the Mine Act, but disagree regarding Friesen’s reaction to these safety complaints. The first safety complaint concerned Descutner reporting an open ground hazard to a loader operator between January and February 2010. Tr. 40-41. The second safety complaint concerned Descutner reporting an open ground hazard in the wash bay to Friesen between March and April 2010. Tr. 46-47.

     The parties unequivocally disagree regarding the occurrence of the third safety complaint.

As previously noted, Descutner claims that between May and June 2010 he told Friesen that some of the haul truck drivers were failing to conduct proper pre-shift inspections. Descutner testified that Friesen was displeased and told him to mind his own business. Tr. 57-58. Friesen testified that this conversation never occurred, and if Descutner had brought such a safety complaint to him, he would have immediately responded to the complaint since pre-shift inspections are a serious matter.9 Tr. 204.

   The Commission has held that “credibility determinations reside in the province of the

administrative law judge’s discretion, are subject to review only for abuse of that discretion, and cannot be overturned lightly” Dynamic Energy, Inc., 32 FMSHRC 1168 (Sept. 2010). Whether the conversation occurred depends on whether one believes Friesen or Descutner regarding this matter. I believe that the conversation occurred.10 I have come to this conclusion because I find

   9
      Newmont also argues that this conversation never occurred because Descutner admitted

that neither Friesen nor any other supervisor ever promoted unsafe activity such as skipping pre- shift inspections in order for truck drivers to arrive earlier at their headings. Tr. 138-139. However, I find that this admission by Descutner fails to prove that the conversation between him and Friesen did not occur since while a supervisor may not explicitly espouse unsafe activity, he still may implicitly ignore safety violations and be displeased when they are brought to his attention.
10
A side issue is whether Descutner directly talked to other truck drivers about their
failure to conduct proper pre-shift inspections. Descutner claims that he talked to at least two other drivers, Patrick Cary and Jason Watkins, about their failure to conduct proper pre-shift inspections, and talked to several other drivers about safety issues. Tr. 130-136. Newmont alleges that Descutner never talked to other drivers about their failure to conduct proper pre-shift inspections. Resp’t. Br. 18. If Newmont’s allegation were true, Descutner’s credibility would be impeached. The testimony of Cary, however, reveals that while he does not remember talking to Descutner about pre-shift inspections, he can not rule out the possibility that such a conversation occurred. Tr. 355. And Watkins, while he did not recall Descutner talking to him about pre-shift inspections, testified that Descutner did talk to him about other safety issues such as travel speeds of trucks. Tr. 362. Despite Newmont’s allegations, I find that the testimony of Cary and Watkins did not impeach Descutner’s credibility regarding his conversation with Friesen.

Friesen less credible than Descutner after Friesen’s credibility was directly impeached during trial on a separate material issue.

    In an earlier statement e-mailed by Friesen to Thayne Church on June 6, 2010 (three days

after the incident), Friesen stated that he got out of his tractor, started walking to Descutner’s truck to ask him why he was parked in a lay-down, and only while walking did he notice that the truck was parked over some roof bolts. Resp’t. Ex. 20. In essence, Friesen decided to confront Descutner before noticing that the truck was parked over the bolts. In the earlier e-mail Friesen stated that:

           As I drove by the Lay-Down I noticed haul truck #55 (driven by
           Todd Discutner) parked in the Lay-Down. I parked my tractor and
           I approached the operator’s door to ask the operator why he was
           parked in the Lay Down. I then noticed that the haul truck had run
           over an entire bundle of … bolts and was still parked on top of the
           bolts.

   Resp’t. Ex. 20.

However, during the trial on June 5, 2012, Friesen stated that he saw that Descutner’s truck was parked over some bolts while he drove past the truck, and then decided to walk to Descutner’s truck. Tr. 270-273. In essence, Friesen decided to confront Descutner after noticing the truck was parked over bolts. Friesen maintained this position, even after being shown the contradiction between his earlier e-mail and his later testimony. Tr. 270-273. In regard to his earlier e-mail Friesen testified “Yeah . . . this [earlier e-mail] would be incorrect. I did see him on top of the bolts when I approached . . . yeah, it doesn’t . . . say that here [referring to earlier e- mail].” Tr. 273.

    These two statements concern a material fact- whether Friesen bore animus towards

Descutner, possibly due to Descutner’s protected activities. When two statements given by a witness on a material issue are inconsistent, the witness is impeached and his credibility is damaged. Under the earlier statement (e-mailed to Church on June 6, 2010), since Friesen decided to confront Descutner before noticing the damage to company property, such property damage could not have been Friesen’s reason for confronting Descutner. Resp’t. Ex. 20. The e- mail further indicated that Friesen’s reason for walking to Descutner’s truck was to scold him for backing into a lay-down. Resp’t. Ex. 20. However, backing into a lay-down is accepted practice, as conceded by Friesen who testified that it was not against Newmont policy to park in a lay- down, and as attested to by Duke, another of Newmont’s witnesses. Tr. 272, 311. Therefore, if Friesen intended to confront Descutner about an accepted practice, a reasonable implication is that Friesen unjustifiably intended to harass Descutner, which suggests that Friesen bore animus towards Descutner.

     Under the later statement (given during trial on June 5, 2012), since Friesen decided to

confront Descutner after noticing the damage to company property, such property damage could have been Friesen’s reason for confronting Descutner Tr. 273. Damage to company property, unlike backing into a lay-down, is a legitimate reason for a supervisor to confront an employee, and does not suggest animus. Resp’t. Ex. 27. Friesen’s impeachment on a material fact severely damages his credibility especially since he continued to adhere to the later statement given at trial, two years after the incident, instead of the earlier statement, given three days after the incident. Therefore, I choose to believe Descutner over Friesen on the issue of whether the conversation regarding pre-shift inspection procedures occurred.

    The safety-related incident raised by Descutner concerns his allegation that Friesen was

hostile to him on around June 2, 2010, when he pulled into the lube bay to repair a leakage in his truck. Tr. 59-60. Descutner testified that Friesen asked him how many loads he had dumped that day. After Descutner stated his number of loads, Friesen expressed displeasure at the low number of loads. Descutner alleges that his number of loads was low due to the leakage. Tr. 59-

60. Newmont does not address this allegation.

    Given the above, I find that Descutner engaged in protected activity between January and
    

    February 2010 when he reported an open ground hazard to a loader operator, between March and April 2010 when he reported an open ground hazard to Friesen, between May and June 2010 when he conversed with Friesen about pre-shift inspections, and in June 2010 when he sought to repaid a leakage in his truck. Given this finding, I must consider whether the adverse action he suffered (termination) was motivated by any of his protected activity.

          ADVERSE ACTION MOTIVATED BY PROTECTED ACTIVITY
    
    Since there is no direct evidence of discriminatory intent, I must assess whether there is
    

    circumstantial evidence suggesting Newmont discriminatorily terminated Descutner due to his protected activities. Circumstantial evidence may include close temporal proximity between the protected activity and the adverse action, the operator’s knowledge of the employee’s protected activity, the operator’s animus towards the employee’s protected activity, and disparate treatment by the operator. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Descutner alleges that he was terminated due to Friesen’s hostility towards three safety complaints and one safety-related incident, all of which occurred in 2010. While I conclude that the first two safety complaints and the safety-related incident fail to suggest discriminatory intent, I reach the opposite conclusion with regard to the third safety complaint.

                          First Safety Complaint of 2010
    
    The first safety complaint occurred between January and February 2010 when Descutner
    

    complained to a loader operator about an open ground safety hazard. Tr. 40-41. In Chacon, the Commission held that an adverse action which occurred one and a half months after the protected activity is sufficiently coincidental, when combined with the other indicia of knowledge and animus, to support a finding of discriminatory motive. Id. In the case at bar, the

safety complaint occurred at the latest in February 2010, four months prior to Descutner’s termination on June 9, 2010. Tr. 40-41. It is unclear as to whether an adverse action that occurred four months after the protected activity is sufficiently coincidental to the protected activity. However, this issue need not be resolved since there is no evidence of animus towards Descutner because of his first safety complaint.

    Regarding the first safety complaint, Newmont had knowledge of the protected activity

because Descutner complained to a loader operator who repeated the complaint to Friesen. However, there is no evidence of animus towards Descutner due to the first safety complaint. Following the complaint, Descutner did not immediately suffer any adverse action. Tr. 40-41. In addition, the individual whom Descutner alleges bore animus towards him due to his protected activities and was instrumental in his termination, Gus Friesen, did not interact directly with Descutner at the time. Tr. 40-41. Instead, the loader operator served as an intermediary who reported the complaint to Friesen who then inspected the area. There is also no evidence that Friesen was even aware that it was Descutner who initially raised the issue. Tr. 40-41. Thus, there is no evidence to support a finding of animus towards Descutner due to the first complaint.

                           Second Safety Complaint of 2010

   The second safety complaint occurred between March and April 2010 when Descutner

complained directly to Friesen about an open ground safety hazard in the wash bay. The complaint occurred at the latest in April 2010, two months prior to Descutner’s termination. Tr. 46-48. However, as with the first safety complaint, I find that the issue of temporal proximity need not be decided since the other indicia of causation are not met. While Friesen had knowledge of the protected activity since the complaint was made to him directly, there is no evidence that he was upset about the complaint. At trial, Friesen testified that he was not upset, and that the problem was quickly fixed. Tr. 193. Descutner also testified that Friesen merely told him to stay out of the dangerous area for the rest of the day. Tr. 48. Descutner did testify that Friesen seemed irritated, but I conclude that this testimony is too tenuous to support a finding of animus towards Descutner due to the second safety complaint. Tr. 47-48.

                            Third Safety Complaint of 2010

     The third safety complaint occurred between May and June 2010, when Descutner told

Friesen that some of the truck drivers were reaching their headings earlier because they were failing to conduct proper pre-shift inspections. Tr. 57-58. I have determined that this incident occurred despite Friesen’s denials. The complaint occurred at the earliest in May 2010, about a month prior to Descutner’s termination, but may have even occurred in June 2010, a week before his termination.11 Tr. 57-58. As stated above, an adverse action which occurs one and a half months after the protected activity is sufficiently coincidental in time to support a finding of a

   11
       It is unclear whether Descutner made this complaint in May or June 2010. Descutner

testified that the meeting was held in May. Tr. 57. However, Friesen testified that the meeting was held in June. Tr. 200. In his brief, Descutner refers to the incident as occurring between May and June. Compl. Br. 6. Therefore, due to the uncertainty regarding the timing, I have held that the complaint occurred between May and June.

discriminatory motive. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds sub nom. The Commission has also held that a discharge approximately two weeks after the protected activity is sufficiently coincidental in time to support a finding of a discriminatory motive. Secretary of Labor on behalf of Clay Baier v. Durango Gravel, 21 FMSHRC 953 (Sept. 1999). Therefore, since this conversation took place at most only a month prior to the termination, there was a close temporal proximity between Descutner’s third safety complaint and his termination.

    Moreover, the operator had knowledge of the protected activity through Gus Friesen,

Descutner’s immediate supervisor, who heard Descutner’s safety complaint. Tr. 57-58. I recognize that Newmont alleges that the decision-makers who terminated Descutner (Church, Zimmerman, and other supervisors not including Friesen) lacked knowledge of Descutner’s protected activity. Tr. 386-387. I also recognize that Friesen, the only supervisor who had knowledge of Descutner’s protected activity, failed to participate in either the due diligence meeting or the termination meeting. Tr. 425-426, 438-439. However, the Commission has previously held that “an operator may not escape responsibility by pleading ignorance due to the division of company personnel functions.” Secretary of Labor v. Metric Constructors, 6 FMSHRC 226 (Feb. 1984).

    In the case at bar, Friesen, who had knowledge of Descutner’s protected activity, himself

reported both violations of property damage and insubordination on June 3, 2010, and none of the decision-makers had independent knowledge of either violation. Tr. 173-175. In addition, Church and Zimmerman relied heavily on Friesen’s initial investigation. Church testified that he relied exclusively on statements of different witnesses collected by Friesen, and did not seek to independently interview any witnesses. Tr. 390. Church and Zimmerman also believed Friesen over Descutner on the issue of whether Descutner had sworn generally or at Friesen. Tr. 475-

476. Church and Zimmerman’s heavy reliance on the reports by Friesen, who had knowledge of
     Descutner’s protected activity, precludes Newmont from disclaiming knowledge of Descutner’s protected activity.

     There is also evidence that Newmont, through Friesen, bore animus towards Descutner
     

     due to his protected activity. Descutner credibly testified that after the conversation with Friesen regarding the failure of some truck drivers to do proper pre-shift inspections, rather than address the complaint, Friesen told him to mind his own business. Thus, I conclude that Friesen held animus towards Descutner due to his protected activity. Tr. 57-58.

     Therefore, with regard to the third safety complaint of 2010, the close temporal proximity
     

     of the protected activity to the adverse action, the operator’s knowledge of protected activity, and the operator’s animus towards protected activity suggest a causal link between Descutner’s protected activity and his termination. While there is no evidence of disparate treatment (other employees receiving lesser punishment for the same or more serious misconduct), the Commission has previously held that evidence of disparate treatment is not necessary to prove a prima facie claim of discrimination when the other indicia of discriminatory intent are present. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981). For these reasons, I hold that Descutner has successfully proved a prima facie case of discriminatory termination.

                             Safety-Related Incident of 2010
     
     The safety-related issue occurred around June 2, 2010, when Descutner pulled into the
     

     lube bay to repair a leakage in his truck. Tr. 59-60. Since this issue occurred on around June 2, 2010, it is very close in time to Descutner’s termination. Descutner testified that Friesen responded angrily after hearing the low number of loads Descutner had hauled that day. However, there is no evidence that Friesen was upset that Descutner was fixing a safety issue on his truck. Tr. 59-50. Descutner’s testimony simply demonstrates that Friesen was angry at Descutner for completing a low number of loads, not that Friesen demanded that Descutner work in an unsafe truck. Tr. 59-60. Friesen could have been unhappy that Descutner completed a low number of loads prior to the leakage, or he could have simply not heard Descutner’s explanation that the leakage in his truck was the reason he was unable to complete many loads. Either way, I conclude that the record is insufficient to support Descutner’s allegation that Friesen demonstrated animus towards his protected activity of fixing a safety issue in his truck. Tr. 59- 60.

            RESPONDENT’S REBUTTAL AND AFFIRMATIVE DEFENSE
     
                                       REBUTTAL
     
     Descutner has successfully proved a prima facie case of discrimination based on
     

     protected activity. Newmont has failed to rebut Descutner’s prima facie case by proving there was no protected activity, or that Descutner’s termination was not at all motivated by his protected activity. Therefore, I now consider whether Newmont has provided enough evidence to constitute an affirmative defense.

                                 AFFIRMATIVE DEFENSE
     
     To establish an affirmative defense, Newmont must prove that despite Descutner’s
     

     termination being motivated in part by protected activity, Descutner would nonetheless have been terminated for his unprotected activity alone. The Commission has explained that an affirmative defense should not be “examined superficially or be approved automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must “determine whether they are credible and, if so, whether they would have motivated the particular operator as claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Commission has held that “pretext may be found . . .where the asserted justification is weak, implausible, or out of line with the operator's normal business practices.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). However, the Commission has also held that “our judges should not substitute for the operator’s business judgment our views of “good” business practice.” Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981)

     In Jayson Turner v. National Cement Company of California, 33 FMSHRC 1059 (May
     

     2011), the Commission listed ways in which the complainant may show that the operator’s affirmative defense is not credible. First, the complainant may establish that the operator’s

proffered reasons have no basis in fact, i.e. are factually false. Second, the complainant may show that the proffered reasons did not actually motivate the discharge, i.e. the complainant admits the factual basis underlying the employer’s proffered reasons, and that such conduct could motivate dismissal, but attacks the credibility of the proffered reasons indirectly by showing circumstance which tend to prove that an illegal motivation was more likely than the legitimate business reasons proffered by the employer. Third, the complainant may show that the employer’s proffered reasons were insufficient to motivate termination i.e. other employees were not terminated even though they engaged in substantially similar conduct which was the basis of the complainant’s termination. The first and third approaches directly attack the credibility of the employer’s proffered motivation, while the second approach indirectly attacks the credibility of the employer’s proffered motivation. Id.

    Here Descutner seeks to use the first and second Turner approaches to prove pretext.12

Jayson Turner v. National Cement Company of California, 33 FMSHRC 1059 (May 2011). Newmont alleges that it terminated Descutner for three reasons- damage to company property and insubordination on June 3, 2010, and the progressive discipline policy. Tr. 418. Under the first Turner approach Descutner seeks to show that one of Newmont’s reasons for terminating him was factually false, specifically the allegation of insubordination.13 Tr. 115. Under the second Turner approach, Descutner seeks to show that even assuming he had committed insubordination, the sheer weight of circumstantial evidence makes it more likely than not that the employer’s reasons for dismissal are pre-textual. Id. Since I hold that Descutner succeeds in proving pretext under the first Turner approach, I need not reach the issue of whether Descutner would also succeed in proving pretext under the second Turner approach. However, for the sake of clarification, I have briefly discussed how I would rule on Descutner’s attempt to use the second Turner approach.

                                 First Turner Approach

   The testimony of Zimmerman, Newmont’s HR representative, indicates that the three

grounds for termination were cumulative rather than alternative and independent. Zimmerman does not suggest that any of the three grounds, by itself, would be sufficient to credibly warrant termination.14 Under Secretary of Labor on behalf of Lawrence L. Pendley v. Highland Mining

   12
      Descutner does not seek to use the third Turner approach since he failed to introduce

evidence that other employees were not terminated even though they engaged in substantially similar conduct.
13
Descutner concedes that he should have received some type of discipline for damaging
company property on June 3, 2010 (but disputes that he should have been terminated). Tr. 110. He also concedes that he had received prior discipline for an offense in February 2010, which was considered by Newmont in determining his progressive discipline. Tr. 42.
14
Newmont repeatedly emphasized at trial that Descutner was terminated for three
reasons - property damage, insubordination, and the progressive discipline policy. At trial,
(continued…)

Company, 2012 WL 4026647 (Aug. 2012), when the reasons proffered by the operator are cumulative and the judge disbelieves one of the reasons, the judge can not hold that the other reasons are sufficient by themselves to support the adverse action. I hold below that I disbelieve one of Newmont’s proffered reasons for Descutner’s termination and find that it is not credible (allegation of insubordination). Therefore, I find that Newmont’s justification in its entirety is not credible, and that Newmont has failed to prove an affirmative defense.

     In the case at bar, the official policy prohibited all profanity, (Resp’t. Ex. 27) but while

general profanity was implicitly tolerated, profanity towards a supervisor was not tolerated.15 Descutner admits that he cursed during his conversation with Friesen on June 3, 2010 but argues that he swore generally (i.e., “the situation’s f* up”). Tr. 115. Friesen testified that Descutner swore at him, telling him that he, Friesen, was “f*** up.” Tr. 166. I hold that Descutner’s version of the cursing incident is more credible. Since this is a close issue, I find it probative that Friesen’s credibility has been impeached on a separate material issue. As detailed earlier, Friesen at trial directly contradicted an earlier statement he had made in an e-mail to Church. Resp’t Ex. 20.

    In addition, I find it probative that Descutner, after being accused of inadequate work

performance in February 2010, requested and was granted a transfer to the wash bay by March 2010. Tr. 45. Descutner’s un-contradicted testimony was as follows, “I felt that, after they accused me of sleeping, and then . . . accused me of being inadequate in my job, that I was putting myself in a lot of harm’s way if I kept that job [haul truck driver]. So I just asked them if I could get a job [in the wash bay] because it was a lot less exposure.” Tr. 45. The fact that Descutner requested a transfer between February and March 2010 indicates that Descutner was apprehensive of Friesen. This apprehension was probably heightened by Friesen’s reaction to Descutner’s safety complaint between May and June 2010 regarding pre-shift inspections. Tr. 57-58. After he made this complaint to Friesen, Descutner credibly testified that Friesen told

   14
       (…continued)

Zimmerman listed only these three reasons for Descutner’s termination. Tr. 418. Zimmerman testified that he told Descutner that he was being terminated for these three reasons. Tr. 440-441. Zimmerman also testified that he listed the reasons for Descutner’s termination as insubordination and property damage in an internal document. Resp’t. Ex. 11, Tr. 441-442. Finally, Zimmerman stated that the reason Descutner was terminated was, “Because of where he was at in his progressive discipline, which was a one-day suspension . . . and then the fact that there were two other violations here. One was damage to Company property, and the second was the insubordinate conduct towards his supervisor” Tr. 464. The repeated statements by Zimmerman, Newmont’s HR representative, establish two facts. First, they establish that failure to conduct a proper lay-down inspection was not a ground for Descutner’s termination. Second, they establish that Zimmerman, and by extension Newmont, viewed the grounds for termination as cumulative rather than independent since they repeatedly stressed that Descutner was terminated for three reasons.
15
Friesen testified that this was the first time an underground miner had sworn at him as
opposed to swearing generally during a conversation. Tr. 190. Two other employees of Newmont also indicated that swearing at a supervisor is inappropriate. Tr. 332, 344.

him to mind his own business. Tr. 57-58. Since Descutner could have predicted he would be terminated if he cursed at a supervisor whom he believed was hostile towards him, I find it unlikely that Descutner would have sworn directly at Friesen. Instead, I find it more probable that Descutner swore generally by stating that “the situation’s f* up.” And since such cursing would fall under general profanity, which is implicitly tolerated at Newmont, I find that Descutner was not insubordinate to Friesen.

    I fail to find probative the choice of Church, the general foreman, and Zimmerman, the

HR representative, to believe Friesen’s version of the cursing incident over Descutner’s. Tr. 382,

476. Church and Zimmerman claim that they believed Friesen’s version over Descutner’s based
     on a history of working through other situations with Descutner, such as prior grievance hearings, and on Descutner’s argumentative approach at the due diligence meeting. Tr. 382, 476. Descutner alleges that management representatives at the due diligence meeting treated him aggressively and unfairly and refused to accept his explanations for the incidents on June 3, 2010. Tr. 78-79. Since there is no indication as to which party’s version of the events that occurred at the due diligence meeting is accurate, the probative value of Zimmerman’s testimony regarding the due diligence meeting is minimal.

                                 Second Turner Approach
     
     Under the second Turner approach, Descutner may use circumstantial evidence to prove
     

     that the legitimate business reasons proffered by the employer were a pretext for illegal discrimination. Jayson Turner v. National Cement Company of California, 33 FMSHRC 1059 (May 2011). In Bradley v. Belva Coal Co., 4 FMSHRC 982 (June 1982), the Commission listed four factors that can be used to determine whether an affirmative defense is credible, and would have motivated the operator as claimed. The first is whether the miner had an unsatisfactory past work record.16 The second is whether there was a policy forbidding the conduct in question. The third is whether the miner was given prior warnings for the same conduct. The fourth is whether there was past discipline consistent with that meted out to the alleged discriminatee. Id. In Cooley v. Ottawa Silica, 6 FMSHRC 516 (March 1984), the Commission adapted the Bradley factors to situations involving profanity, which resulted in three Cooley factors. The first is whether there was an official policy against swearing at a supervisor. The second is whether the complainant was previously warned about swearing at a supervisor. The third is how other miners were previously punished for swearing. Id.

      After applying the Bradley factors to the three grounds for termination in the case at bar,
     

     I find that these three grounds, when combined, would not have credibly motivated Descutner’s termination. Bradley v. Belva Coal Co., 4 FMSHRC 982 (June 1982). First, regarding property damage, there was a clear policy against damaging company property and Descutner had received prior warnings and discipline for damaging Newmont’s property in 2007. Resp’t. Ex. 27), Tr. 24-30. However, Descutner’s 2007 incidents suggest that property damage is not

     16
     Since Newmont failed at trial to allege that Descutner had an unsatisfactory past work
     record or that Descutner was terminated due to his unsatisfactory past work record, I conclude that the first factor is not applicable. However, as will be seen below, the other three factors do apply to the case at bar.

weighed heavily in a termination decision. In August 2007, Descutner drove his truck into a retaining wall that was knocked down, became stuck underground in his truck, and caused a fuel spill when he drove away from a fuel bay with the wiggins nozzle still attached. Tr. 24-30. These three instances of property damage in a single month resulted in a written warning, a three day suspension, and a five day suspension respectively. Tr. 24-30. This indicates that even repeated instances of arguably more serious property damage generally result in a suspension. Therefore, I find that while property damage was a ground for termination, it was not weighed heavily in Descutner’s termination decision.

    Second, regarding insubordination (which is analyzed under the Cooley factors), while

Newmont policy prohibited profanity at a supervisor, there is no evidence that Descutner had ever received prior warnings for cursing or other insubordination. Cooley v. Ottawa Silica, 6 FMSHRC 516 (March 1984). In addition, the lack of evidence of other employees who were terminated in part for cursing suggests that cursing is not weighed heavily in a termination decision. Zimmerman testified that two employees were previously terminated for cursing, but he failed to provide any details regarding these miners’ situations such as their past disciplinary record, work history or the nature of their alleged offenses. Tr. 450-451. Zimmerman also conceded that he lacked personal knowledge regarding at least one of these two terminations, instead relying solely on scant notes prepared by another individual. Tr. 451. Therefore, I find that while insubordination was a ground for termination, it was not weighed heavily in Descutner’s termination decision.

     Third, regarding the progressive discipline policy, the evidence suggests that Newmont

lacked a clear policy specifying that three offenses by an employee within a year of the adverse action would result in termination. Under Newmont’s progressive discipline policy, first offenses are punished by a written warning and repeated offenses are punished by suspension for unspecified periods and eventually termination. Resp’t. Ex. 27. The policy is ambiguous as to the number of repeated similar offenses that will result in termination stating as follows: “initial discipline for most offenses will normally be a written warning, followed by suspension and finally discharge for recurrence of the same or similar offenses.” Id. Under the policy, it is unclear whether an initial suspension will immediately be followed by termination, or whether an initial suspension will be followed by increasingly longer periods of suspension, and then eventually termination. This indicates that the progressive discipline policy is not weighed heavily in a termination decision predicated on three offenses.

     Moreover, there is no evidence that Descutner had previously been warned that

committing three offenses within a year could lead to his termination. At trial, Zimmerman testified that his understanding of the policy was that first offenses are punished by a written warning, second offenses are punished by suspension, and third offenses are punished by termination. Tr. 440, 464. Since in the case at bar Descutner committed three offenses within a year, under Zimmerman’s interpretation of the policy, termination is clearly warranted. Tr. 464. However, Newmont failed to introduce evidence that Descutner had previously been warned that employees could be terminated for committing three offenses within a year. Instead, under Descutner’s understanding of the progressive discipline policy, first offenses are usually punished by a written warning, second offenses are usually punished by a one day suspension, third offenses are usually punished by a three day suspension, fourth offenses are usually

punished by a five day suspension, and fifth offenses are punished by termination. Tr. 31-32. Descutner’s understanding was based on his prior discipline for three separate and fairly serious instances of property damage in August 2007. Tr. 23-30. The third instance of property damage in that month merely resulted in a five day suspension, even though all three instances of property damage are arguably more serious than the property damage at bar. Tr. 29.

     Finally, Newmont has failed to offer any evidence of another employee who was

terminated for committing three offenses within a year. Such evidence, if it exists, would have been damaging for Descutner, and the fact that Newmont failed to offer such evidence suggests that it does not exist, i.e. that there is no instance of an employee being terminated for committing three offenses within a year. Therefore, I find that while progressive discipline was a ground for termination, it was not weighed heavily in Descutner’s termination decision.

    All of the above leads me to hold that Newmont has failed to credibly demonstrate that

even in the absence of protected activity, it would have terminated Descutner for his unprotected activity.

                                   PROVOCATION

    The issue of whether Descutner was provoked will not be reached. In complainant’s

brief, Descutner argues that even if he swore at Friesen (instead of swearing generally), his cursing was provoked by Friesen’s overreaction to backing into a lay-down and damaging company property. Compl. Br. 25. Descutner testified that Friesen overreacted by telling him he was endangering lives and could have killed someone. Tr. 67. Friesen did not admit nor deny telling Descutner he could have killed someone.

    The Commission has previously held than an employee’s swearing may be excused and

not be considered a ground for termination when the employee was provoked. Secretary of Labor, on behalf of Leonard Bernardyn v. Reading Anthracite, 22 FMSHRC 298 (March 2000). In Reading Anthracite, the Commission cited a case, NLRB v. Steinerfilm, 669 F.2d 845 (1st Cir. 1982), where the employee’s swearing was found to be excusable when it was in reaction to an unjustified warning. Id. However, the case at bar presents a more complex issue. Since Descutner admits he damaged company property and some discipline was warranted, he does not dispute that some level of scolding was warranted. Instead, he argues that the level of scolding (specifically the statement by Friesen that Descutner could have killed someone) was unwarranted. Since I have found that Newmont has failed to prove an affirmative defense, the issue of whether an overreaction to damage of company property constitutes sufficient provocation for swearing need not be decided.

                                     CONCLUSION

   I find that Descutner has successfully made out a prima facie case of discrimination under

§ 105(c)(3) of the Mine Act. I also find that Newmont has failed to either rebut Descutner’s prima facie case, or establish any affirmative defense to Descutner’s discrimination claim. Therefore, Descutner is entitled to relief.

                                       DAMAGES

    Pursuant to the statutory relief provided at 30 C.F.R. § 815(c), Descutner is entitled to

“rehiring or reinstatement” to his former position of haul truck driver at Newmont’s Leeville Mine.

                                 DUTY TO MITIGATE

    The Mine Act provides that a miner who has been discharged is required to mitigate his

damages by making reasonable efforts to find employment. Sec. of Labor v. Gabel Stone Co., 23 FMSHRC 1222 (2001), aff’d Gabel Stone Co. v. FMSHRC, 307 F.3d 691 (8th Cir. 2002). A discharged worker’s efforts at reemployment, however, are not to be judged by the “highest standard of diligence.” Id. Failure to mitigate damages is an affirmative defense. Id. At trial, Descutner credibly described his good faith efforts to mitigate his damages. Three months after his discharge, Descutner secured employment as a car salesman in September 2010, in which capacity he has since been employed. Tr. 105. Newmont failed to present any evidence alleging that Descutner did not use good faith efforts to mitigate his damages. 17

   17
       In Secretary of Labor on behalf of McClain v. Misty Mountain Mining, 28 FMSHRC

303 (June 2006), the Commission distinguished a complainant’s failure to accept an offer of reinstatement, from a complainant’s failure to seek temporary reinstatement. In the former situation, a complainant fails to mitigate his damages. Therefore, he is not entitled to reinstatement and his accumulation of back-pay is tolled starting from the date the operator made the reinstatement offer. In the latter situation, however, a complainant does not fail to mitigate his damages since the Commission has held that he is not required, under the Mine Act, to seek temporary reinstatement. Secretary of Labor on behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126 (Feb. 1982). Therefore, in the latter situation, the complainant is entitled to reinstatement, and his accumulation of back-pay is not tolled. In the case at bar, Descutner clearly falls into the latter situation. Descutner was never offered reinstatement by Newmont. However, Descutner had previously informed an MSHA investigator that he did not seek temporary reinstatement, though he sought permanent reinstatement in his discrimination complaint to MSHA. Tr. 144-146, 153. Under Dunmire & Estle, since Descutner was not required to seek temporary reinstatement as long as he otherwise mitigated his damages by finding alternative employment, Descutner is entitled to the full amount of back-pay. Id.

                                   OTHER DAMAGES

  § 105 (c)(3) provides that when a discrimination complainant’s claim is granted, the

Administrative Law Judge may grant “such relief as it deems appropriate.”

   Given the above findings that Descutner was discharged for unlawful discriminatory

reasons, Newmont is ordered to expunge and/or purge any negative personnel file references regarding Descutner’s discrimination complaint. Newmont is further ordered to post a notice at the Leeville Mine that it will not violate § 105(c)(1) of the Act.

                              BACK PAY AND INTEREST

    Pursuant to § 105(c)(3), I find that as further relief Descutner is entitled to “back pay and

interest” since June 9, 2010. I further find that Newmont is entitled to deduct Descutner’s interim net wages received from other employment since June 9, 2010 from the gross pay that Descutner would have otherwise received from Newmont.
The parties did not reach the issue of the actual gross amount that Descutner would have
received from Newmont since June 9, 2010. While an Administrative Law Judge has broad discretion in fashioning an appropriate remedy so as to make the discriminatee “whole,” the record is insufficient as to the issue of Descutner’s outstanding gross pay since June 9, 2010. I therefore retain jurisdiction of this matter for purpose of establishing the amount of monetary damages, including back-pay and interest, owed to Descutner.

   If the parties cannot reach an agreement as to such, I shall hold further proceedings,

including an evidentiary hearing, if necessary, to determine an appropriate remedial amount.

                                          ORDER

   It is hereby ordered that Todd Descutner’s discrimination claim under §§ 105(c)(3) is

granted.

    It is ordered that Todd Descutner be reinstated by Newmont to his former position of haul

truck driver at Newmont’s Leeville Mine with full pay and benefits.

   It is ordered that Newmont expunge from its personnel and company records any

reference to Todd Descutner’s termination on June 9, 2010, the circumstances surrounding his termination, and his discrimination action.

   It is ordered that Newmont post a notice at its Leeville Mine that it will not violate

§ 105(c)(3) of the Mine Act.

    I find that Todd Descutner has met his duty to mitigate damages. Because the record is

insufficient as to the gross pay that Descutner would have earned from Newmont since his

discriminatory termination on June 9, 2010, I will maintain jurisdiction of this matter for the purpose of establishing the actual amount of monetary damages, including back pay and interest, for which Newmont is now liable. With reference to back pay and interest, Newmont is entitled to deduct the actual net interim earnings received by Descutner from other employers since June 9, 2010. With reference to other specific relief, Descutner is also entitled to all costs and expenses (including attorney’s fees) that he has reasonably incurred.

    Counsels are ORDERED to confer within 30 days of the date of this decision for the

purpose of arriving at a settlement of the specific actions and monetary amounts that Newmont will undertake to carry out the remedies and relief set out above. If an agreement cannot be reached, the parties are FURTHER ORDERED to submit their respective positions, concerning those issues on which they cannot agree, with supporting arguments, case citations and references to the record, within 30 days of the date of this decision. For those areas involving monetary damages and relief on which the parties disagree, they shall submit specific proposed dollar amounts for each category of relief. If a further hearing is required on the remedial aspects of this case the parties should so state.

       I will retain jurisdiction in this matter until the specific remedies Mr. Descutner is

entitled to are resolved and finalized. Accordingly, this decision will not become final until an order granting specific relief and awarding monetary damages has been entered. Finally, pursuant to 29 C.F.R. § 2700.44(b), the Office of the Solicitor of the U.S. Department of Labor has been added to the distribution list of this decision.

                                         /s/ David F. Barbour
                                          David F. Barbour
                                         Administrative Law Judge

Distribution: (Certified Mail)

Larson A. Welsh, Attorney at Law, Cogburn Law Office, 2879 St. Rose Parkway, Suite 200, Henderson, Nevada 89052

Kristin R. White, Attorney at Law, Karen L. Johnston, Attorney at Law, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, Colorado 80202

Jay Mattos, Director, MSHA, Office of Assessments, U.S. Department of Labor, 1100 Wilson Blvd., 25th Floor, Arlington, VA 22209