Todd Descutner v. Newmont USA
Todd Descutner v. Newmont USA (FMSHRC WEST 2011-523-DM): Safety complaints found to have contributed to a miner's firing
Apply this to your situation
This order from 2012 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.
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.
- 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 threedifferent 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. Thislayoff 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-
- 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 theyarrived 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, Descutnerbecame 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-
- Newmont does not address this allegation.
Given the above, I find that Descutner engaged in protected activity between January andFebruary 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 iscircumstantial 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 Descutnercomplained 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-
- 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 Descutnerdue 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 proximityof 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 thelube 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 onprotected 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’stermination 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 (May2011), 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,
- 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, -
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 provethat 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 not16
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
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