Secretary of Labor on behalf of Ralph Keele v. Energy West Mining Company

Read the official release (fmshrc.gov)

Plain-English summary

Ralph Keele, a diesel mechanic and union safety committee chairman at Energy West's Deer Creek Mine, repeatedly tagged out unsafe equipment and reported safety concerns to management and MSHA. After those reports, management sharply curtailed his inspection and underground duties and later fired him for allegedly making a false assault complaint against the mine manager. Judge L. Zane Gill found that Keele made the complaint in good faith and that the company's asserted reason for firing him was pretextual. The judge emphasized management's hostility, its failure to follow company policies protecting good-faith reports, and an investigation that ignored relevant witnesses and allowed the accused manager to participate in the termination decision. The order reinstated Keele, required Energy West to expunge negative references, imposed a $20,000 civil penalty, and directed later briefing on any unpaid temporary economic reinstatement amount.

Decision snapshot

• Cited standard: 30 U.S.C. § 815(c)
• Outcome: Energy West was found to have unlawfully discriminated against Keele, who was reinstated with record-clearing relief and a $20,000 civil penalty.
• Key point: An operator cannot use a poorly supported misconduct investigation as a pretext to punish a miner for repeated safety complaints.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR, MSHA on

behalf of RALPH KEELE,

Complainants,

v.

ENERGY
WEST MINING COMPANY,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. WEST 2013-0877-D

DENV-CD
2013-13

Mine:
Deer Creek Mine

Mine
ID: 42-00121

DECISION AND
ORDER

Appearances:               Tyler
P. McLeod, Esq., U.S. Department of Labor, Office of the Solicitor, Denver, CO,
for Complainants;

Willa
B. Perlmutter, Esq., Crowell & Moring, Washington, D.C., for Respondent.

Before:                                    Judge
L. Zane Gill

This proceeding arises under Section
105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act” or “Act”),
30 U.S.C. § 815(c) (1994). The parties presented testimony and documentary
evidence at the hearing held in Price, Utah on April 8, 9, and 10, 2014.

By agreement, Ralph Keele (“Keele”) was
temporarily economically reinstated from March 7, 2013, the date he was
suspended without pay with intent to terminate, under the same terms as if he
had not been suspended. (Tr.1 at 127:18-20) [1]
This agreement was approved by the Court on June 26, 2013. The temporary
reinstatement will expire when Keele is no longer entitled to temporary
reinstatement under Section 105(c) of the Act. 30 U.S.C. § 815(c).

Keele argues here that Energy West
terminated his employment because he engaged in protected activity. The Respondent
admits that Keele engaged in many instances of protected activity, but claims
as an affirmative defense that Keele was terminated because he made a false
statement against the mine manager which violated Respondent’s Business Code
and justified termination. Keele also claims that the Respondent failed to make
full payment under the terms of the economic reinstatement agreement. The
parties agreed that if the Respondent is found

liable
for violating Section 105(c), they would submit additional evidence regarding
Keele’s economic reinstatement claim.

For the reasons that follow, I find that
Keele engaged in protected activity and conclude that Energy West violated
Section 105(c) of the Act by terminating him. I also conclude that Energy
West’s stated reasons for terminating Keele are pretextual. Therefore, Keele is
entitled to reinstatement at the Deer Creek Mine, and in addition to any amount
determined later to be due to Keele under the terms of the economic
reinstatement, the Respondent shall pay a civil money penalty in the amount of
$20,000.00.

I.                  
Stipulations

The Parties’ Pre-Hearing Report dated
April 1, 2014, included fourteen stipulations:

1.      The
Administrative Law Judge has jurisdiction over this action pursuant to § 113 of
the Mine Act, 30 U.S.C. § 823;

2.      This action is
brought by the Secretary pursuant to the authority granted by § 105(c)(2) of
the Mine Act, 30 U.S.C. § 815(c)(2);

3.      Energy West is
the operator of Deer Creek Mine, Mine ID No. 42-00121, an underground coal mine
located in Emery County, Utah;

4.      At all relevant
times, Energy West was an operator as the term is defined by § 3(d) of the Mine
Act, 30 U.S.C. § 802(d);

5.      Energy West
produces products that enter commerce or has operations or products that affect
commerce, all within the meaning of §§ 3(b), 3(h), and 4 of the Mine Act, 30
U.S.C. §§ 802(b), 802(h), 803;

6.      At all relevant
times, Energy West employed Complainant, Ralph Keele, as a diesel mechanic at
the Deer Creek Mine;

7.      At all relevant
times, Mr. Keele was a miner within the meaning of § 3(g) of the Mine Act, 30
U.S.C. § 802(g);

8.      Energy West is
an operating division of Interwest Mining, which is a wholly owned subsidiary
of PacifiCorp;

9.      PacifiCorp is a
wholly owned subsidiary of MidAmerican Energy Holdings Company;

10.  Energy West
employees are subject to the MidAmerican Energy Holdings Company’s Code of
Business Conduct;

11.  On March 7,
2013, Mr. Keele was suspended from his employment at the Deer Creek Mine with
intent to discharge. The reasons for Mr. Keele’s suspension were included in a
letter to Mr. Keele from Human Resources Manager, Don Childs, dated March 7,
2013;

12.  As of March 7,
2013, Mr. Keele was rotating between day and afternoon shifts every two weeks.
On the day shift he earned $25.65 per hour and on the afternoon shift he earned
$26.05 per hour;

13.  The proposed
penalty will not affect Energy West’s ability to remain in business;

14.  The parties
stipulate to the authenticity of those documentary exhibits that have been
exchanged by the parties in discovery up to the date of the Pre-Hearing Report,
but not to the relevance or truth of the matters asserted therein. The parties
do not stipulate to the authenticity of any video footage that may be presented
at hearing, but reserve the right to review such video footage prior to
stipulating to authenticity.

II.               
Legal
Principles

Section
105(c)(1) of the Mine Act provides that a miner cannot be discharged,
discriminated against, or interfered with in the exercise of his statutory
rights because he “has filed or made a complaint under or related to this Act,
including a complaint notifying the operator […] of an alleged danger or safety
or health violation.” 30 U.S.C. § 815(c).

In order to establish a prima facie
case of discrimination under Section 105 (c)(1), Keele must show: (1) that he
engaged in protected activity; and (2) that the adverse action he complains of
was motivated, at least in part, by that activity. Drissen v. Nevada
Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec’y of Labor on
behalf of Robinette v. United Castle Coal, Co., 3 FMSHRC 803 (Apr. 1981); Sec’y
of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct.
1980), rev'd on other grounds sub nom.; Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d. Cir. 1981). 

The Commission recently sharpened the
focus on the appropriate quantum of proof needed to establish the prima
facie case. Turner v. National Cement Co. of California reiterated
the clear difference in the quantum of proof a claimant must provide to
ultimately prevail in a discrimination case as opposed to the minimal showing
required to establish the prima facie case. 33 FMSHRC 1059 (May 2011). “[T]o
make out a prima facie case of discrimination, the [discriminatee] need only
submit enough evidence so that the record could support an inference”
that the termination resulted, at least in part, from protected safety
complaints. Id. at 1066 (internal citations omitted) (emphasis in
original).

The Commission has noted that “direct
evidence of motivation is rarely encountered; more typically, the only
available evidence is indirect.” Sec’y of Labor ex rel. Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981) rev'd on other grounds,
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 the protected activity; 3) hostility or animus toward the
protected activity; and 4) disparate treatment. Id. The more that
hostility or animus is specifically directed toward the protected activity, the
more probative it is of discriminatory intent. Id. In Bradley v.
Belva Coal Co., with regard to the issue of motivation, the Commission
found that “circumstantial evidence […] and reasonable inferences drawn
therefrom may be used to sustain a prima facie case.” 4 FMSHRC 982, 992 (June
1982) (citing Chacon, 3 FMSHRC at 2510-12). “Furthermore, inferences
drawn by judges are ‘permissible provided they are inherently reasonable and
there is a logical and rational connection between the evidentiary facts and
the ultimate fact inferred.’” Colorado Lava, Inc., 24 FMSHRC 350, 354
(Apr. 2002) (citing Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May
1984)).

Under Section 105(c), 30 U.S.C. §
815(c), the operator may rebut the miner’s prima facie case by
showing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at
2799-800. If the operator cannot rebut the prima facie case, it may
nevertheless defend affirmatively by proving that it was motivated by the
miner’s unprotected activity. It is not enough under Section 105 (c) for the
operator to show that the miner deserved to be fired for engaging in the
unprotected activity. The operator must show that it did, in fact, consider the
miner deserving of discipline for engaging in the unprotected activity alone
and that it would have disciplined him in any event. Id. at 2800; Robinette,
3 FMSHRC at 817-18; see also E. Assoc. Coal Corp. v. FMSHRC, 813
F.2d 639, 642 (4th Cir. 1987).

In analyzing a mine operator’s asserted
justification for taking adverse action under the Pasula-Robinette
framework, the inquiry is limited to whether the reasons are plausible, whether
they actually motivated the operator’s actions, and whether they would have led
the operator to act even if the miner had not engaged in protected activity. The
ALJ may not impose his own business judgment as to an operator's actions, Chacon,
3 FMSHRC at 2516-517, and he may not substitute his own
justification for disciplining a miner over that offered by the operator. Sec’y
of Labor on behalf of McGill v. U.S. Steel Mining Co., 23 FMSHRC 981, 989
(Sep. 2001).

The Commission has explained, however,
that “pretext may be found, for example, where the asserted justification is
weak, implausible, or out of line with the operator’s normal business practices.”
Sec’y of Labor ex rel. Price v. Jim Walter Res., Inc., 12 FMSHRC 1521,
1534 (Aug. 1990). Further, “[a] plaintiff may establish that an employer's
explanation is not credible by demonstrating ‘either (1) that the proffered
reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate his discharge, or (3) that they
were insufficient to motivate discharge.”’ Turner 33
FMSHRC at 1073 (emphasis in original) (citations omitted). Additionally,
“[a]
company's failure to follow its own policies can be evidence of pretext.” Garza
v. Hanson Aggregates, LLC, 36 FMSHRC 974, 992 (Apr. 2014) (ALJ Gilbert); See
Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005)
(failure to follow company's own procedures may be evidence of pretext); see
Giacoletto v. Amax Zinc Co., 954 F.2d 424, 427 (7th Cir. 1992) (determining
that employer's proffered justification was pretextual when company failed to
follow its own procedures.)

III.            
Prima
Facie
Discrimination

As part of his burden to make a prima
facie showing of discriminatory intent, Keele must show that his
termination was motivated, at least partially, by his making safety complaints.
I must determine whether the evidence in total, including the inferential
evidence, has sufficient circumstantial weight to satisfy his prima facie
burden to show discrimination.

A.    Keele Engaged In
Protected Activity

To satisfy the first prong of the Pasula-Robinette
test for a prima facie case of discrimination, Keele must show that he
engaged in protected activity. Drissen, 20 FMSHRC at 328; Robinette 3
FMSHRC at 803; Pasula, 2 FMSHRC at 2786. Counsel for the Respondent
conceded this point, by stating in her opening statement: “There is no doubt
that Mr. Keele engaged in protected activity and lots of it […]” (Tr.1 at
22:12-14) Thus, the primary issue is the “motivational nexus” between Keele’s
protected activity and the adverse actions. See Pero v. Cyprus Plateau
Mining Corp., 22 FMSHRC 1361, 1365 (Dec. 2000).

Protected activity under the Act has
been found to include tagging out equipment because it may be unsafe, see Consolidation
Coal Co., 8 FMSHRC 1568 (Oct. 1986) (ALJ Lasher), making a complaint to an
operator or its agent of “an alleged danger or safety or health violation,” see
Sec’y of Labor ex rel. Davis v. Smasal Aggregates, LLC, 28 FMSHRC 172, 175
(Mar.2006)(ALJ Lietinski), and reporting potential safety or health hazards to
MSHA or an MSHA inspector, see Sec’y of Labor ex rel. Chaparro v. Comunidad
Agricola Bianchi, Inc., 2010 WL 1145197 at *4 (Feb. 2010)(ALJ Barbour). The
language of the statute prohibits discrimination against a miner for filing
complaints under §§ 105(c) or 103(g), which in and of itself qualifies as
protected activity. 30 U.S.C. § 815(c)(1).

I find that between December 17, 2012,
and March 6, 2013, the day he was terminated, Keele engaged in protected
activity of which company management was aware at least ten times.

1.      Background Facts[2]

At the time of trial, Keele had been
employed at the Deer Creek Mine since 1981, approximately 33 years. (Tr.1 at
33:3) During that time, Keele had been the Vice President of the local union, Chairman
of the Mine Committee, and was serving as the union’s Safety Committee Chairman
when he was terminated. (Tr.1 at 36:17-23) Keele was on the Safety Committee
from approximately 1983 until 1994, and then again in 2013. (Tr.1 at 37:10-16)[3]

During his mining career at Deer Creek,
Keele worked mostly as a mechanic electrician until January, 2012, when he bid
for and won a surface diesel mechanic position. (Tr.1 at 33:3-11; Tr.1 at
34:7-8) The new position required that Keele master new skills. (Tr.1 at
34:11-21)

Keele’s predominant duty as a diesel
mechanic was to perform permissibility inspections – weekly inspections that
must be completed for every piece of diesel equipment at the mine. (Tr.1 at
35:16-23) Ordinarily, the mechanic shop superintendent would give the diesel
mechanics work orders at the beginning of every shift. (Tr.1 at 39:5-7) Two
mechanics would then inspect each piece of equipment for permissibility. (Tr.1
at 48:12-21) The mechanics were expected to complete a form describing any
problems with equipment they inspected. (Tr.1 at 50:14-23) Diesel mechanics
also performed repairs on mantrips, small trucks, and haulage equipment. Id.
As a practice, if a problem with a piece of diesel equipment was easy to fix,
the mechanics fixed it right away, if not, they tagged the equipment out of
service. (Tr.1 at 50:3-7) There were two lifts or hoists in the shop where
mechanics did routine equipment maintenance. (Tr.1 at 93:5-8)

2.      Events Related
to The Tagging Out Incident on December 17, 2012

Keele and Brian Lea[4] (“Lea”)
testified that Rudy Madrigal[5]
instructed them to do permissibility inspections of the diesel mantrips on
December 17, 2012. (Tr.1 at 47:7-14; Tr.1 at 46:8-12; Tr.2 at 34:21 – 35:2;
Tr.2 at 36:6-12) Keele and Lea went to the diesel garage where all of the
mantrips were parked along the wall. They went down the line, and did their
permissibility inspections. (Tr.1 at 47:14-20) They ultimately found problems
with and tagged out of service seven of the mantrips and one duster. (Tr.1 at
49:10-25; Tr.2 at 40:5-8; Ex. S-21)[6]

Keele and Lea began their inspection
between 9:00-9:30am. (Tr.1 at 49:1-9) They tagged out four mantrips before
their lunch break, which began around 11:00am and lasted about one hour. (Tr.1
at 165:10-16) After returning to work, they inspected the rest of the mantrips
and tagged out an additional three, plus the duster. (Tr.1 at 166:1-3) Around
1:30-2:00pm, while Keele and Lea were finishing the duster examination, Darrel
Bagley[7]
came into the garage and told them to fix the mantrips that did not require a
lot of work first so that they could be placed back into service. (Tr.1 at
53:4-16) Keele and Lea took two mantrips into the shop to start working on
them. (Tr.1 at 54:3-7) Within minutes, Clayton Cox (“Cox”), the assistant mine
manager, a position directly under mine manager, Rick Poulson (“Poulson”),[8] came into
the shop to find out what was going on with the mantrips. (Tr.1 at 55:7-15) Keele
told Cox that there were problems with some of the mantrips, and because of
that, they tagged them out. (Tr.1 at 55:20-25) Keele testified that Cox was
“quite upset” that the mantrips were tagged out. (Tr.1 at 56:5) Lea also testified
that Cox was irritated and upset. (Tr.2 at 41:19)

Both Keele and Lea testified that after
Cox asked what was going on, he said he was going to conduct an investigation,
that he was going to get to the bottom of what happened, and that he was going
to make sure something was done about it. (Tr.1 at 56:8-13; Tr.2 41:8-17) Cox
left the garage and called Don Childs[9]
to inquire whether any disciplinary action could be taken against Keele and Lea
for tagging out the mantrips. (Tr.2 at 225:4-7) Because of Cox’s comments, both
Keele and Lea believed they were going to get fired for tagging out the
mantrips. (Tr.1 at 57:21-25; Tr.1 at 58:2-6; Tr.2 at 41:22 – 42:2) Lea felt the
working environment was hostile after speaking with Cox. (Tr.2 at 43:2-7)[10]

Approximately ten minutes after Cox
left, mine manager Rick Poulson came into the shop. (Tr.1 at 59:1-8) He came up
to Keele while he was standing on a stool on one side of a mantrip and asked him
what the issue was with the mantrip he was working on. Id. Keele told
Poulson that he was working to try to figure it out and fix the problem. (Tr.1
at 59:8-11) Keele testified that Poulson then approached Lea and asked him the
same question. (Tr.1 at 59:15-19) As Poulson was talking to Lea, Keele walked around
to the other side of the mantrip to spray degreaser on the engine so that he
could find leaks. Id. At this point, Keele was facing the surveillance
camera and was partially blocked from the camera’s view by the mantrip. (Ex.
S-22; Ex. S-23)[11]

A short time later, Poulson came back to
where Keele was working on the mantrip. Id. According to Keele, Poulson
came up to him from behind, inserted his finger or an object into his buttocks,
and said, “Good job, buddy. Way to go. Good Job.” (Tr.1 at 59:20 – 60:3)[12] Keele testified
that he told Poulson that he was just trying to do his job, and Poulson said,
“Yeah, I bet you are.” Id. Poulson then walked out of the garage. Id.
Keele testified that Poulson’s statements towards him were sarcastic. (Tr.1
at 60:10) Lea corroborated Keele’s testimony by stating that as Poulson was
walking away, he said, “Good job,” sarcastically. (Tr.2 at 42:16-19) Poulson
testified, however, that his “Good job” statements were not sarcastic, but in
fact were intended to praise Keele for a job well done. (Tr.2 at 194:7-12) I
find Poulson’s testimony not credible and inconsistent with the evidence before
me on this point.

It became apparent at trial that Cox and
Poulson (management) were upset that Keele and Lea did not notify them earlier
that so many mantrips had been tagged out because someone could have begun to
work on the mantrips, and thus, returned them to service more quickly. (See
Tr.1 at 165: 17-20; Tr. at 166:4-6; Tr.2 197:18 – 198:7) As a result of the way
the equipment was tagged out of service, the mine was left with fewer mantrips
than was needed to perform the shift change at 3:00pm. (Tr.2 at 198:1-3) This
caused a disruption in production. (Tr.2 at 195:1-12) However, Keele testified
that the standard practice when performing permissibility inspections was that
at the end of the shift, mechanics submitted their paperwork outlining work
performed to their supervisor. (Tr.1 at 58:10-15) Lea testified that as a rule they
did not notify the supervisors about tagging out mantrips until the end of the
shift when they turned the paperwork in. (Tr.1 at 45:17-20) Keele also
testified that he was never told that he had to notify his supervisor when
something was tagged out. (Tr.1 at 58:18-21) Poulson admitted at the hearing
that there was no written policy requiring mechanics to inform management when
equipment was tagged out during the shift. (Tr.2 at 104:22-24) Poulson also stated
that Keele and Lea did not break any rules by failing to notify management
about the tagged out equipment prior to their shift change. (Tr.2 at 105:16-18)

The surveillance video footage and the
snapshot excerpts from it (Ex. S-22; Ex. S-23) show Poulson approaching Keele
from behind, Poulson’s left arm (away from the camera) extending from his side
towards Keele as he approached, Poulson stepping forward toward Keele,
Poulson’s body is blocked from camera view by Keele and the mantrip, and
Keele’s head turning to the side in apparent recognition of something
happening, before Keele turned back to the task he was performing. Id.
The video and the snapshots were taken from an angle that does not explicitly confirm
that Poulson pushed anything into Keele’s buttocks, but I find it reasonable to
conclude by a preponderance of the video and testimonial evidence that Rick
Poulson made physical contact with Keele by physically prodding him from
behind. This determination is based upon the context in which these events took
place, the credibility of Keele’s and Poulson’s testimony, the video footage
and the snapshots from the footage, and Keele’s actions in response to the contact,
which are discussed below.[13]

Within minutes of the contact, Keele
told Lea about the incident, and that he was going to file a complaint about it
and the mantrip issue. (Tr.1 at 75:1-9; Tr.2 at 43:11-14)[14] Lea agreed
with Keele and thought they should both make a complaint based on Cox’s and
Poulson’s actions before they were fired. (Tr.2 at 46:6-11) Keele also told
several people around the shop that Poulson assaulted him, namely, Kevin
Wilson, Gordon Manchester, Kip Allred, Forest Addison, Kenny Rhodes, Monte
Fillmore, Merrill Fillmore, Merrill Jukes, Don Larson, and Steve McNee. (Id.;
Ex. S-30, at 27:9-17) Keele also told two union representatives, Lou Shelly and
Sheldon Oviett. (Ex. S-30, at 28:1-5)

Keele testified that when he
got home from work, he immediately called the Emery County Sherriff’s office to
initiate a complaint against Poulson for sexual assault. The Sherriff’s office
informed him that he would have to come in in person to file a complaint. (Tr.1
at 75:18-22)[15]
Keele testified that he knew the shop had around-the-clock surveillance cameras
in the garage, and that this did not dissuade him from filing a complaint with
the Sheriff’s office. (Tr.1 at 78:6-13)

The next day, December 18,
2012, Keele filed a complaint via the company’s ethics hotline alleging that
his job had been threatened by Cox, and that Poulson had assaulted him for
tagging out the mantrips. (Tr. Tr.1 at 44:22 – 45:2) Later that day, Keele also
filed a complaint with MSHA. (Id.; Tr.1 at 75:25 – 76:1) Paul Priest[16] received Keele’s
hotline complaint on December 18, 2012, and Rick Poulson, Don Childs, and Cindy
Crane[17]
were informed of it the same day. (Tr.2 at 213:17-25; Tr.2 at 252:12-17; Tr. At
256:1-6; Tr.3 at 16:22-25)[18]

On December 19, 2012, Keele spoke with
two Sheriff’s officers at the Deer Creek Mine and filled out the paperwork to
initiate a criminal sexual assault complaint. (Tr.1 at 78:24 – 79:9) Keele
provided a written sworn statement to the Sheriff, under penalty of perjury,
that among other things, Rick Poulson had sexually assaulted him. (Tr.1 at
77:1-9; Ex. S-25)

That same day, as Keele was working in
the shop, Carl Beckstead[19]
told him that he needed to go to the mine office for a meeting because Keele had
called the “1-800-squeal-pig number.” (Tr.1 at 80:1-4) Keele challenged
Beckstead about his knowledge that Keele had phoned in a complaint, since by
company policy, all such matters were to be kept confidential. (Tr.1 at 79:24 –
80:10) Beckstead deflected this inquiry and told Keele that this statement was
made by management. Id.

Keele and his union representative,
Sheldon Oviett, went to the mine office. (Tr.1 at 80:12-21) Debra Stone
(“Stone”),[20]
Don Childs, and another union representative, Lou Shelley, also attended the
meeting. (Tr.1 at 80:12-21) Stone had been hired by Paul Priest to investigate Keele’s
hotline complaint, and Priest had directed Stone to determine whether Keele’s
complaint was accurate. (Tr.1 at 79:15-18; Tr. 2 at 255:16-22; Tr. 2 at
274:20-23; Tr.2 at 257:2-6)

During this meeting, Keele told Stone
about tagging out the mantrips and the assault that occurred on December 17,
2012. (Tr.1 at 81:1-15) Keele also informed Stone that there were at least
three other miners he knew of who had been physically assaulted by Rick Poulson
in the past: Gary Olson, Kenny Rhodes,[21]
and Kelly Duke.[22]
(Tr.1 at 81:1-15; Tr.1 at 86:19 − 90:8) Stone noted these incidents in her
investigation report, but did not contact any of the miners to determine the
accuracy of the allegations or whether Poulson had committed multiple prior assaults
on miners. (Ex. S-31, p. 2) Don Childs and Paul Priest both testified that they
did not follow up on these allegations, nor was Cindy Crane told of them. (Tr.2
at 225:14-21; Tr.2 at 275:11-18) Cindy Crane was responsible for making the
ultimate decision to terminate Keele. (Tr.2 at 178:18 – 179:1)

On December 28, 2012, Keele prepared a
narrative to be used with the §105(c) complaint he filed with MSHA on January
8, 2013. In it he alleged discrimination by Cox and Poulson related to tagging
out the mantrips. (Tr.2 at 279:1-6; Tr.3 at 45:3-7; Ex. S-42, p. 3) He also
stated that Poulson “belly bumped” and pushed him from behind against the
mantrip he was working on, and “shoved something in my butt a couple of times
and kept saying over and over ‘Good job, Ralph. Way to go.’” (Ex. S-42, p. 3)

On January 8, 2013, Keele
filed a §105(c) complaint with MSHA alleging discrimination by Cox and Rick
Poulson for tagging out the mantrips. MSHA conducted an investigation,
interviewing mine management and miners. Priest and Cindy Crane knew of the
§105(c) complaint and the MSHA investigation. (Ex. S-42, p. 1-2; Tr.2 at
279:4-6; Tr.3 at 45:3-7)

On February 25, 2013, around 5:30pm,
Keele’s supervisor Darrel Bagely told him to go to the mine office for a
meeting. (Tr.1 at 106:17-25) When Keele arrived at the mine office, Don Childs
told him that he needed to speak with an attorney who was following up on the
complaint that Stone had investigated. (Tr.1 at 106:17-25) Russ Archibald,
Keele’s union representative, Steve Ortiz (“Ortiz”), an attorney hired by the
Respondent, and a court reporter were also in the room. (Tr.1 at 107:3-6) Keele
declined to take an oath because he did not have his notes with him and he had
not been given notice of an interrogation. (Ex. S-30, pgs. 4−5)[23]

Attorney Ortiz told Keele he was
following up on Stone’s investigation and asked Keele questions about the
incident on December 17, 2012. (Tr.1 at 107:19-25; Tr.2 at 11:14-21; Tr.2 at
12:7-13) Ortiz and Keele watched the surveillance video. Id. During the
course of the interrogation, Keele gave Ortiz the same list of names of the
other miners who allegedly had been physically assaulted by Poulson in the past.[24] (Tr.1 at
108:1-3) Again, management did not follow up on the allegations against Poulson.
At the hearing, Russ Archibald testified that while viewing the surveillance
video, one could see Rick Poulson’s hand open up as he pressed into Keele from
behind. (Tr.2 at 29:23-24)

The decision to terminate Keele was made
on March 5, 2013. (Tr.3 at 39:20-22) Poulson testified that he participated in
the discussion to fire Keele, but the ultimate decision was made by the Vice
President of Operations, Cindy Crane. (Tr.2 at 178:18 – 179:1)

On March 7, 2013, Keele worked the day
shift. As he was walking to the bathhouse, he noticed people standing at Kelly
Mann’s office window and in the hallway office window looking down at him.
(Tr.1 at 40:5-19) When Keele walked into the bathhouse, Cox and Kevin Poulson
asked him to come upstairs with them. (Tr.1 at 40:20- 24) When Keele went
upstairs to Rick Poulson’s office, Don Childs, Kelly Mann, and Sheldon Oviett,
Keele’s union representative, were there. (Tr.1 at 41:4-8) Keele asked for a
second union rep, Tom Kay. Id.

Don Childs read Keele the letter of
suspension with the intent to discharge. (Tr.1 at 41:24-25; Ex. S-20) Keele
received no other reason for his suspension than Don Childs reading the letter.
(Tr.1 at 42:17-20) The letter states, in pertinent part:

·        
On
or about December 18, 2012, you called the company’s ethics hotline and the
Emery County Sheriff’s office and reported you have been physically assaulted
by the mine manager.

·        
You
stated the mine manager pushed you against the man trip equipment and inserted
something in your buttocks.

·        
On
February 25, 2013, you were interviewed and asked to explain the above
described incident. At this time you were shown a video of the event you
described; however, this video shows your statements were false. When
questioned, you offered no reasonable explanation for why the video is
inconsistent with your statement.

·        
Making
false statements to the company, and making false accusations that an employee
committed a sexual assault is a very serious violation of company rules of
conduct and will not be tolerated.

Ex.
S-20

On March 11, 2013, Keele refiled his
§105(c) complaint with MSHA, adding information about his termination. (Tr.1 at
123:13; Ex. S-42, p. 4-5)

3.      Other Protected
Activity

Keele was terminated because he accused mine manager
Rick Poulson of assaulting him on December 17, 2012. Energy West does not
contest that Keele engaged in protected activity on that date and on several
other occasions. The following facts pertain to the events of December 17, 2012,
summarized above, and other incidents of protected activity for which evidence
was admitted at the hearing.

On February 6, 2013, Jason Marietti[25] asked
Keele to examine a piece of Sandvik equipment. (Tr.1 at 100:5-6) Keele asked
for the manufacturer’s recommendations on how to fix the equipment. (Tr.1 at
100:3-6) As Keele read through the manufacturer’s document, he found that in
order to check the flame arrester, he needed a pin gauge. (Tr.1 at 100:22-25) Neither
Keele nor anyone else at the mine had a pin gauge. (Tr. 1 at 101:1-18) Keele
asked foreman Marietti what he should do. Id. Marietti spoke to
management, and as a result, all five of the Sandviks were put out of service
until the right pin gauges arrived. (Tr.1 at 101; Tr.2 at 108:22-109:15; Tr.2
at 151:19-25; Ex. S-40, pgs. 7, 25-26) The pin gauges took a week to arrive.
(Tr.1 at 102:12-21) Marietti and Beckstead were aware of this report. (Tr.1 at
100:22-23; Tr.2 at 151:19-23).

On, February 6, 2013, some of the other
mechanics told Keele, in his capacity as a member of the union’s Safety
Committee, of another problem on the Eimco 922 underground forklifts. (Tr.1. at
103:3-19) They reported that none of the swan piping on the Eimco 922s had been
checked. Keele asked Beckstead about this and Beckstead told Keele that all of
the Eimcos would be tagged out until they were inspected. Keele asked for the
paperwork regarding the Eimcos, and Beckstead refused to give it to him. (Tr.1
at 102:22-25; Tr.1 at 103:33-25; Tr.1 at 104:1-7; Tr.2 at 111:20-22; Tr.2 at
153:2-23; Tr.3 at 67:6-8; Ex. S-40, pgs. 8, 27) Marietti and Beckstead were
aware of this report as well. (Tr.1 at 103:16-19; Tr.2 at 111:20-22; Tr.2 at
153:15-18)

On February 6, 2013, Keele submitted a
§103(g) complaint to MSHA alleging that the mine failed to maintain records of
required quarterly examination of the swan piping on the 922 Eimco scoops. Keele’s
complaint resulted in an MSHA investigation and the issuance of two citations. (Tr.
1 at 104:11-19; Tr.2 at 113:16-20; Tr.2 at 154:6-12; Ex. S-40; Ex. S-29) Marietti
and Beckstead were aware of this report and the MSHA investigation. (Tr.1 at
103:16-19; Tr.2 at 113:17-18; Tr.2 at 153:10-23; Tr.3 at 67:4-5; Ex. S-40, p.8).
Beckstead later approached Keele and said, “What the company ought to do is
fire you for making safety complaints and other complaints and that way
everybody else would be scared to file complaints.” (Tr.1 at 105:9-25)

On March 5, 2013, Keele was scheduled to
do an escapeway walk (similar to a fire drill) intended to impress on everyone how
to escape in the event of an emergency. (Tr.1 at 115:3-24) Keele and the group
he was with did not complete the escapeway walk because one of the miners got
sick. (Tr.1 at 117:4-9) If the escapeway walk is completed, the workers are
expected to sign a log book confirming completion of the walk. Keele refused to
sign the log book despite insistence by Marietti. (Tr.1 at 117:12-25) Keele
also told Marietti that he should not turn in the sheet of paper confirming
that the escapeway walk was completed when it was not. (Tr.1 at 116:11 – 118:4;
Tr.2 at 157:5-25; Ex. S-40, p. 8) Keele reported to Marietti that the secondary
escapeway was less than six feet in width and needed to be corrected. Id.
Marietti reported this to Kevin Poulson, who ordered that the area be brought
into compliance. Id.

On March 6, 2013, Keele reported a
safety concern regarding the proper grooving of some eight inch pipes to Gary
Christensen, a safety engineer at the Deer Creek Mine. (Tr. 118:13-20) Keele
believed the pipe had not been properly grooved on the ends. (Tr.1 at 114:5-12)
Gordon Manchester brought this safety concern to Keele’s attention on the
morning of March 5, 2013. (Tr.1 at 113:24 – 114:14) Gary Christensen did not
know the proper grooving needed for the eight-inch pipes, so Keele and
Christensen went across the hall to speak to Lou Tonc, an engineer. (Tr.1 at
119:1-8)  Lou Tonc agreed that the pipe needed to be grooved, as Keele pointed
out. Id. At some point Kevin Poulson[26]
came into Lou Tonc’s office and they all talked about the issue. (Tr.1 at
119:9-22) As they all went out into the hall, Keele testified that Rick Poulson
came out of his office and started yelling at Keele. (Tr.1 at 120:1-16) Keele
felt that Poulson’s demeanor and tone were very abrasive and created a hostile
working environment. (Tr.1 at 120:15-18) A couple of hours after the
confrontation with Rick Poulson, Keele went to his boss, Marietti, and told him
that he wanted to file a hostile work environment complaint with Don Childs.
(Tr.1 at 120:20-25) Keele told Childs he wanted to complain that Rick Poulson had
chastised him for raising a safety concern. (Tr.1 at 121:21-25) Later that day,
Keele submitted a complaint over the company hotline that Rick Poulson had
harassed him for raising a safety complaint about the eight-inch pipe. (Tr.1 at
121:21-24; Ex. S-35) Priest received the hotline complaint. He later drafted
Keele’s termination letter. (Tr. 2 at 254:4-5) Keele was terminated the next
day, March 7, 2013. (Tr.1 at 123:8)

I find that beginning on December 17, 2012,
and continuing until March 7, 2013, the day Keele was terminated, Keele
repeatedly engaged in protected activity. As summarized below, and described in
detail above, Keele engaged in ten instances of protected activity:

1.      December 17,
2012 - Keele tagged out seven mantrips and one duster for safety reasons;

2.      December 18,
2012 - Keele filed a complaint over the company’s hotline alleging that his job
had been threatened by Cox, and that Poulson had physically assaulted him for tagging
out the mantrips;

3.      January 8, 2013 -
Keele filed a §105(c) complaint with MSHA alleging discrimination by Cox and
Poulson for tagging out the mantrips. MSHA conducted an investigation,
interviewing mine management and miners;

4.      February 6, 2013
- Keele reported to his superiors that the mine was not using the proper pin
gauge to check the flame path on the Sandvik equipment, which resulted in the
equipment being tagged out;

5.      February 6, 2013
- Keele reported to his superiors that the swan piping on the Eimco 922 scoops
was not checked;

6.      February 6, 2013
- Keele submitted a §103(g) complaint to MSHA alleging that the mine failed to
maintain records of required quarterly examination of the swan piping on the
922 Eimco scoops, which resulted in an MSHA investigation and the issuance of
two citations (Tr. 1 at 104:11-19);

7.      March 5, 2013 -
Keele reported to Marietti that the secondary escapeway was less than six feet
in width and needed to be corrected;

8.      March 5, 2013 -
Keele refused to sign a log book indicating that he had completed the quarterly
escapeway walk and told Marietti he should not turn in the log book with
signatures of those who did not complete the walk;

9.      March 6, 2013 -
Keele reported a safety concern regarding the proper grooving of eight inch
pipes to Christensen. The discussion ultimately included Christensen, Rick
Poulson, Kevin Poulson, Lou Tonc, and
Marietti; and

10.  March 6, 2013 -
Keele submitted a complaint to the company hotline that Rick Poulson had
harassed him because he raised the eight inch pipe safety concern.

B.     Keele’s
Employment Was Terminated Because He Engaged In Protected Activity

The Commission
has noted that “direct evidence of motivation [for termination] is rarely
encountered; more typically, the only available evidence is indirect.” Chancon,
3 FMSHRC at 2510. Circumstantial evidence may include: 1) coincidence in time
between the protected activity and the adverse action; 2) knowledge of the
protected activity; 3) hostility or animus toward the protected activity; and
4) disparate treatment. Id. The more that hostility or animus is
specifically directed toward the protected activity, the more probative it is
of discriminatory intent. Id.

1.      Hostility or Animus
– Prima Facie Case

The Commission has held that
“[h]ostility towards protected activity – sometimes referred to as ‘animus’ –
is another circumstantial factor pointing to discriminatory motivation. The
more that the animus is specifically directed towards the alleged
discriminatee’s protected activity, the more probative weight it carrie[s].” Chacon,
3 FMSHRC at 2511. The Respondent argues that management at the Deer Creek mine
welcomed safety complaints. (Tr.2 at 174:13 – 176:22; Tr.2 at 273:4-20; Tr.2 at
135:1-24; Tr.2 at 158:8-12; Tr.2 at 90:2) However, the events in this case
occurred against a contentious labor/management backdrop. The Respondent’s
witnesses’ testimony evidenced a perceptible animus towards the Union and its
members, including Keele. As discussed in more detail below, I have taken the
Respondent’s animus and hostility towards Keele into consideration when
evaluating pretext.

2.      Adverse
Employment Action

The Commission has defined “adverse
action” as:

“[A]n action of commission or omission
by the operator subjecting the affected miner to discipline or a detriment in
his employment relationship.” 601 F.3d at 428 (quoting Sec'y on behalf of
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984)). […]
[T]he Commission has recognized that, while “discrimination may manifest itself
in subtle or indirect forms of adverse action,” at the same time “an adverse
action ‘does not mean any action which an employee does not like.”’ Hecla-Day
Mines Corp., 6 FMSHRC at 1848 n.2 (quoting Fucik v. United States,
655 F.2d 1089, 1096 (Ct. Cl. 1981)). Consequently, where the action alleged to
be adverse against the miner is not self-evidently so -- such as a discharge or
suspension would be -- the Commission will closely examine the surrounding
circumstances to determine the nature of the action. Id. at 1848.
“Determinations as to whether an adverse action was taken must be made on a
case-by-case basis.” Id. at 1848 n.2.

Sec’y
of Labor ex rel. Pendley v. Highland Mining Co., 34 FMSHRC
1919, 1930 (Aug. 2012)

The Commission has found that a
discharge, demotion, or termination is an adverse employment action. Pretty
Good Sand Co., Inc., 36 FMSHRC 1177, 1186 (May 2014)(citing 30 USC §
815(c)(1); see also Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478
(Aug. 1982), aff'd, 770 F.2d 168 (6th Cir. 1985). Additionally, the
United States Supreme Court has held such action must be “material[ly] adverse
action” and broadened the scope of the “adverse action” to include Title VII
retaliation provisions such as actions by an employer that “could well dissuade
a reasonable worker from making or supporting a charge of discrimination.” Burlington
Northern & Santa Fe Railway Co. v. White, 584 U.S. 53, 68 (2006).[27]
Here, the correct analysis would be whether the alleged adverse action would
have a chilling effect on a miner’s desire to raise safety complaints.

In Pendley, the Commission
discussed the fact that reassignment of job duties, even within the same job
classification, can constitute an adverse employment action when such change is
less desirable, arduous, or otherwise detrimental to the miner. 34 FMSHRC at
1931. Keele’s job duties changed after December 17, 2012, when he was assigned
to the lift and worked on changing oil, changing starters, and changing
bearings on the diesel equipment. (Tr.1 at 91:23-25; Tr.1 at 92:9-11; Tr.1 at
93:5-8) Keele was not allowed to go underground or learn to work on more
difficult equipment. (Tr.1 at 196:1 – 198:23)[28]

The weekly equipment examination master
list shows Keele’s initials in connection with approximately 400 examinations
of equipment from May 27, 2012, to January 26, 2013. (Ex. S-27; Tr.1 at 94:6
–96:25; Tr.1 at 99:19-22) The number of exams performed by Keele diminished
significantly after December 17, 2013, when his permissibility examination
duties were curtailed. (Tr.1 at 196:9-25) From January 20, 2013, until his termination
on March 7, 2013, Keele only performed examinations on two pieces of equipment.
(Ex. S-28; Tr.1 at 95:18-19; Tr.1 at 96:1-3)[29] Compared to the
documented incidents when Keele performed equipment examinations prior to his
demotion, this shows a dramatic curtailment of an essential component of
Keele’s job duties after December 17, 2012.

Not being allowed to go underground
meant that Keele was no longer able to learn new skills while he was working on
the lifts in the shop. (Tr.1 at 93:15) This also prevented him from working on
the heavy underground equipment or learning finer points of the trade from more
experienced mechanics. (Tr.1 at 194:1-25; Tr.2 at 160:10-14) The change of
duties occurred despite the fact that Beckstead, Marietti, and Poulson all
agreed that the reasons for tagging out the mantrips on December, 17, 2012,
were legitimate. (Tr.1 at 195:20-21; Tr.2 at 105:16-18; Tr.2 at 140:4-5; Tr.2
at 144:20-21; Tr.2 at 195:7-9) Further, there is no written policy that states
when a mechanic is supposed to inform management that a piece of equipment is
tagged out. (Tr.2 at 141:3-6)

Don Larson, a fellow diesel mechanic,
testified that when he complained about the change in job assignments, the
foreman stated that his hands were tied and apologized that the job assignments
were not fair. (Tr.1 at 197:5-24) Marietti told Larson that he could not assign
Keele underground work because management did not want Keele causing problems
underground, and assigning Keele to underground duty would put Marietti’s job
in jeopardy. Id. Marietti agreed that new mechanics such as Keele would
not gain job-related knowledge unless they were assigned to tasks they had not
completed before. (Tr.2 at 160:10-14).

The foregoing convinces me that
management bore animus against Keele which extended beyond the tagging out
incident on December 17, 2012. I conclude that the reassignment of job duties
was an adverse act. Management took steps to minimize Keele’s opportunities to
make safety complaints, which adversely impacted his chances to improve his job
skills. Even though Keele continued to work as a diesel mechanic, the
restriction in his job duties interfered with and disrupted his ability to
develop skills in his position as a diesel mechanic.

It also appears that management was
willing to put pressure on lower-level foremen and supervisors (Marietti) to
keep Keele in a position where he could not make more safety complaints. It is
a matter of reasonable inference to conclude that the company took adverse
action against Keele due, at least in part, to the frequency, number, and
significance of Keele’s safety complaints and due to his union status. As
discussed further below, these adverse actions were animated by management’s
desire to punish Keele for engaging in protected activity and to dissuade him
from engaging in further protected activity.

3.      Coincidence In
Time Between The Protected Activity And The Adverse Action

The Commission has accepted substantial
gaps between the last protected activity and adverse employment action. Pretty
Good Sand Co., Inc., 36 FMSHRC at 1186 (citing Cam Mining, LLC, 31
FMSHRC at 1090 (three weeks); Sec’y of Labor ex rel. Hyles v. All American
Asphalt, 21 FMSHRC 34 (Jan. 1999). Indeed, the Commission has stated “We
‘appl[y] no hard and fast criteria in determining coincidence in time between
protected activity and subsequent adverse action when assessing an illegal
motive. Surrounding factors and circumstances may influence the effect to be
given to such coincidence in time.’” All American Asphalt, 21 FMSHRC at
47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr.
1991)). Here, there is a close proximity between Keele’s protected activities
and the adverse action taken against him, namely the change in job duties and
his ultimate termination. As discussed above, the first relevant instance of
protected activity began on December 17, 2012, and continued until March 6,
2013, the day before Keele was terminated. The series of events meets the time
requirements to establish a temporal nexus.

For the foregoing reasons, I find that
Keele presented a prima facie case of discrimination in that he
proved by a preponderance of evidence that he engaged in protected activity and
the record supports a reasonable inference that Keele was terminated for
engaging in such activity. Indeed, there is a logical and rational connection
between the evidentiary facts here and the inference that Keele was terminated
for engaging in protected activity.

IV.            
Energy
West’s Affirmative Defense

The operator may rebut a prima facie
case of discrimination by showing that the adverse action for which the miner
seeks relief was not at all motivated by the miner’s protected activity. Pasula,
2 FMSHRC at 2799-800. In analyzing a mine operator's asserted justification for
taking adverse action under the Pasula-Robinette framework, the inquiry
is limited to whether the reasons are plausible, whether they actually
motivated the operator's actions, and whether they would have led the operator
to act even if the miner had not engaged in protected activity. The ALJ may not
impose his own business judgment as to an operator's actions, Chacon, 3
FMSHRC at 2516-517, and he may not substitute his own justification for
disciplining a miner over that offered by the operator. McGill, 23
FMSHRC at 989.  Respondent claims as an affirmative defense that Keele made a
false statement that Rick Poulson sexually assaulted him, and because of his
false statement, Keele violated Respondent’s Business Code, which justified his
termination.

Respondent offers two grounds for
Keele’s termination in the March 7, 2013 letter: (1) Keele made false
statements to the hotline and the Sheriff that Poulson sexually assaulted him;
and, (2) On February 25, 2013, Keele offered no reasonable explanation to
attorney Ortiz as to why the surveillance video footage was inconsistent with
Keele’s statement. (Ex. S-20) Respondent argues that Keele was terminated
because he violated its Code of Business Conduct. The company’s EEOC Policy
states that “[i]f the company determines an individual has misused the process
by intentionally filing a false charge of discrimination or harassment, he or
she may be subject to discipline, up to and including termination of
employment.” (Ex. S-33, pg. 508)

Don Childs testified that Keele violated
the company’s rules of conduct because he felt Keele made a false accusation
against Poulson pertaining to sexual assault. (Tr.2 at 217:13-19) Paul Priest
testified that he also believed Keele intentionally fabricated his accusation
that Rick Poulson sexually assaulted him based on the Ortiz transcript and the
video. (Tr.2 at 265:8-13) Priest felt that Keele’s accusations against Poulson
amounted to a violation of Mid American’s Business Code. (Tr.2 at 271:5-12) Cindy
Crane testified that she believed Keele filed a false complaint with the intent
of harming Rick Poulson. (Tr. 47:11-12)

V.               
Pretext

The Commission has explained that
“pretext may be found, for example, where the asserted justification is weak,
implausible, or out of line with the operator’s normal business practices.” Price,
12 FMSHRC at 1534. Further, “[a] plaintiff may establish that an employer's
explanation is not credible by demonstrating ‘either (1) that the proffered
reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate his discharge, or (3) that they
were insufficient to motivate discharge.”’ Turner,
33 FMSHRC at 1073 (emphasis in original). Additionally, “[a] company's failure
to follow its own policies can be evidence of pretext.” Garza, 36 FMSHRC
at 992. Another useful test to determine whether an employer’s proffered
justification for taking adverse action is pretext is to determine whether it
is plainly credible and plausible. Quakenbush v. Kentucky-Tennessee Clay,
26 FMSHRC 913, 922-23
(Dec. 2004)(ALJ Feldman). In applying these standards, I have considered the
credibility of the witnesses from both sides and the credibility of the process
used to reach the decision to fire Keele.

A.    Hostility or
Animus Against Keele and the Union

Deer
Creek is a United Mine Workers Union mine. (Tr.2 at 208:8-17) The labor
contract between Energy West and the union expired in January, 2013, and
Respondent and the union had been in negotiations over a new contract since
November, 2012. (Id.; Tr.2 at 248:21 – 249:18) At the time of the trial,
the parties were still conducting contract negotiations, but were continuing
production under the old contract. (Tr.2 at 208:8-17)

Paul Priest testified that he observed
an escalation in the tension between the union and company representatives
because of the contract negotiations. (Tr.2 at 249:7-13) Priest also testified
that there was an increased number of grievances, and an increase in the number
of unfair labor practice charges filed during the time of contract negotiations.
(Tr.2 at 249:22-24) Cindy Crane, the person who made the ultimate decision to
terminate Keele, testified that there was a contentious labor negotiation
environment, and that she believed Keele exploited that environment to help the
union’s cause. (Tr.3 at 26:10-22) [30]

When Keele and Lea tagged out the seven
mantrips on December 17, 2012, it was obvious to management (Clayton Cox and
Rick Poulson) that they were not going to be able to accomplish the next shift
change in time to avoid a disruption in coal production which, according to
Rick Poulson, would cost the company upwards of $400.00 per minute. (Tr. 2 at 202:22
– 203:6) Although both Cox and Poulson claimed in their testimony that their
angry encounters with Keele had nothing to do with the fact that Keele and Lea
had tagged the mantrips out of service as they did, I am persuaded that their
claims are false. Their angry and aggressive actions and language toward Keele
and Lea were consistent with their being upset at the prospect of a costly
disruption at the next shift change. Further, contrary to the evidence in the
record, Cox and Poulson (as well as other management personnel) were convinced
that Keele and Lea had staged the tagging out incident with the knowledge and
intent that doing so, when and how they did, would cause a disruption at the
shift change, and that this was somehow done as part of a concerted larger
union plot to cause the company trouble during the rancorous labor contract
negotiations. As tenuous as this sounds, it is apparent from the testimony of
management witnesses that management acted towards Keele with this as their
operating assumption.

From this I conclude that the company
harbored animus towards the union in general, and Keele in particular. I find
also that this animus permeated the investigation of Keele’s allegation of
assault, management’s deliberations, and the ultimate decision to terminate
Keele’s employment. “Animus” is used in the broad sense to mean either a
motivation to do something, or the presence of hostility or ill feeling. Animus
is evident in the way the company investigated Keele’s assault complaint
against mine manager Rick Poulson and in the process used to reach the decision
to fire Keele, in particular with regard to the way management applied the
company’s code of business conduct and equal employment opportunity,
discrimination, and harassment policies. This animus calls into question the bona
fides of the company’s reaction to Keele’s protected activity and related
complaints. As discussed further below, I have taken the Respondent’s animus
into consideration in evaluating whether its claimed business justification for
terminating Keele is credible and plausible.

B.     Energy West’s
Code of Business Conduct and Equal Employment Opportunity, Discrimination and
Harassment Policy

An evaluation of the credibility of Energy West’s
claim that it would have taken adverse action against Keele irrespective of the
protected nature of his workplace complaints must include an analysis of its
Code of Business Conduct and EEO, discrimination, and harassment policies and
an assessment of the integrity of the company’s interpretation and application
of those policies. Respondent argued that the decision to terminate Keele was
reached by applying the substance of the company’s policy statements to the
facts available to it. In doing so, it argued, its decision makers were careful
to assess the evidence available to them and to apply the applicable policy
statements in an even-handed manner. The company obligated itself through its
policies to use good faith in applying its policies to the facts. The presence
of animus justifies a careful evaluation of the good faith and credibility of
the process the company applied to justify Keele’s termination.

The
court is keenly aware that it must not merely substitute its own sense of
fairness for Energy West’s business decision to terminate Keele. In order to
keep the decisional analysis within the limits set by the legal principles
outlined above, it helps to compare what Energy West actually did to what its
policy statements lead Keele, other employees, and now this court by extension,
to expect it to do. Identifying the deviations between what was promised and
what was actually done helps the court assess whether Resondent’s actions
vis-à-vis Keele are credible and deserve to be left alone, or otherwise. Such a
comparison is also an established method for evaluating whether the company’s
proffered justification for adverse action is a credible and allowable response
to the employee’s actions, or is more accurately seen as a pretext contrived by
the company to cloak prohibited retaliation. It is important to consider not
only the individual credibility of the decision makers and other players in
this case, but also to weigh the believability of the process used by the
decision makers to reach the decision to terminate Keele. I call this aspect of
the analysis “process credibility.” My conclusion is that the process used to
fire Keele lacks credibility and was not applied in good faith. This conclusion
is the result of weighing credibility, not just substituting judgment.

MidAmerican
Energy Holdings Company’s Code of Business Conduct and its Equal Employment
Opportunity, Discrimination and Harassment Policy govern Energy West as well as
its holding company.[31]
(Ex. S-32; Ex. S-33) Among other things, these policies prohibit unwanted
physical contact and actions that are intimidating or threatening. (Ex. S-32,
pgs. 11-12). They also prohibit physical conduct that is sexual in nature,
including same sex harassment, which creates an intimidating, hostile, or
offensive work environment. (Ex. S-33, pgs. 3, 6) The EEO Policy also states
that “[i]f the company determines an individual has misused the process by
intentionally filing a false charge of discrimination or harassment, he or she
may be subject to discipline, up to an including termination of employment.”
(Ex. S-33, p. 508)

Employees are also promised protection
from retaliation for good faith reporting of ethical violations and violations
of the code of business conduct. (Ex. S-32, p. 4; Ex. S-33, p. 9; Ex. S-34, p.
3) The Business Code states:

You may report ethical violations in
confidence without fear of retaliation. No retaliatory action of any kind will
be permitted against anyone making such a report in good faith. In many
instances, retaliation is against the law. Good faith reporting of
violations or possible violations will not result in adverse consequences to
the person reporting them, even if perceived violations are ultimately proven
not to have occurred […] However, if a report is made in bad faith – for
instance, if a false or misleading report is made in a deliberate effort to get
someone in trouble (as opposed to an honest mistake) – the person making the
report may be subject to disciplinary action.

Ex.
S-32, p. 4 (emphasis added)

The EEO Policy states:

Retaliation against any person who
complains of or participated in the investigation of a harassment or
discrimination complaint is prohibited. Where the company finds retaliation has
occurred, individuals who engage in the retaliatory behavior may be subject to
discipline, up to and including termination of employment, regardless of
whether the original complaint is substantiated.

Ex.
S-33, p. 9 (emphasis added)

MidAmerican’s Ethical Standards and
Performance Expectation’s policy states:

You may report violations of the company
codes of business conduct, policies and the law without fear of retaliation.
Good faith reporting of violations or possible violations will not result in
adverse consequences to the person reporting them, even if the perceived
violations are ultimately proved not to have occurred.

Ex.
S-34, p. 3 (emphasis added)

The highlighted text in the Business Code above
makes it clear that Energy West created a self-imposed obligation to determine
if Keele’s allegations of assault against Rick Poulson were made in bad faith,
not merely whether they should be believed. If it had hewn to its own policies,
Energy West would have taken steps to assure that the evidence it evaluated
supported a conclusion that Keele’s complaint was made in bad faith. However,
it appears that it stopped far short of doing so, which along with the evidence
of animus makes its retaliatory intent very clear.

The company’s policies are clear; making
an allegation such as Keele’s in a manner that is merely unconvincing is
specifically and unequivocally protected. “Good faith reporting of violations
or possible violations will not result in adverse consequences to the person
reporting them, even if perceived violations are ultimately proven not to have
occurred […].” Id. Moreover, the policy statement is internally
consistent when it places the focus on the complaining party’s perception of
whether his complaint is factually accurate, not on the ultimate believability
of the report. Energy West promised to evaluate Keele’s assault allegations on
the basis of his perception and intent, not on whether his version is
ultimately provable or even believable.

Only when the complainer deliberately
makes a false report with the intent to mislead, such as with intent to get
someone in trouble, will the report be deemed to have been made in bad faith. Even
then, whether a person who makes a bad faith report is subject to disciplinary
action is equivocal, adverse action may or may not be taken in response. However
whether a person who makes a subjectively good faith report is protected from
disciplinary action is clear and unequivocal. Missing this distinction can be
the result of either an honest misreading and misinterpretation of the policy
or the deliberate misapplication of the policy. The former is an issue the
court should not touch; the latter is consistent with, and proof of the larger
issue of animus and is an important indicator of pretext.

The
company’s policy statements repeatedly promise to protect Keele against adverse
action and retaliation if he makes a complaint that he subjectively believes to
be true, even a complaint with criminal or sexual implications. This promise is
guaranteed by a second commitment, i.e., that no adverse action will result
even if his complaint cannot be determined to be factually true or cannot be
believed, unless it is shown that he made the complaint knowing its substance
to be false and with the intent to harm someone else. Here, the Respondent
argues that Keele made the complaint with the knowledge that it was false and
for the purpose of getting Poulson in trouble. Stone’s investigative report
concludes that Keele’s “allegation of assault was not substantiated,” (Ex.
S-31, p. 5) but she did not find that Keele made his allegation in bad faith.

It
is not for the court to decide whether it is prudent for an employer to make
such promises to its employees, but when it does, and when it appears, as it
does in this case, that it acted against the employee and against its published
policies under the cloud of animus, the court must evaluate that action by
weighing the evidence and concluding whether the company acted in good faith. The
ultimate determination of pretext relies at least in part on an evaluation of
the company’s good faith. I conclude for the reasons that follow that Keele
made his allegations of assault in good faith and that the way the company
applied its policies in response was done in bad faith.

The operative wording in Respondent’s
Business Code is “intentionally filing a false charge.” The company ignored all
the consistent evidence that Keele made his complaint from a good faith belief
and perception that he had been sexually assaulted. Aside from Keele’s personal
conviction that his complaint was made in good faith, the weight of the
evidence is that the assault happened. The fact that the video does not show
the sexual part of the claim or that the County Sheriff declined to prosecute
does not prove that Keele complained in bad faith.  Exhibit S-38, the letter
from W. Brent Langston, Deputy Emery County Attorney, to Mr. McLeod reflects
the view of the prosecuting authorities that “something may have happened”
although, in their estimation, the video evidence they reviewed was not
conclusive and would not support their requirement to prove the alleged assault
beyond a reasonable doubt to attain a criminal conviction. [32] It appears
that management seized on that information as being consistent with a desire to
retaliate against Keele.

C.    Keele’s Accusation
Did Not Violate Energy West’s Business and Ethics Codes

The record contains several items that
weigh heavily against the proposition that Keele intentionally made a false
claim of assault by Rick Poulson. Keele made consistent statements about the
assault:

·           
To
his coworkers within minutes of the event (December 17, 2012);

·           
Over
the company’s hotline (December 18, 2012, Ex. S-24);

·           
To
the Emery County Sheriff’s Office over the telephone (December 17, 2012);

·           
To
the Sheriff’s Office in writing, under oath, and subject to criminal sanctions
under Utah law.[33]
(December 19, 2012, Ex. S-25) Importantly, Keele provided a written sworn
statement to the Sheriff under penalty of perjury that Rick Poulson had sexually
assaulted him;

·           
To
two interviewing Sheriff’s deputies (December 19, 2012);

·           
To
Debra Stone in an interview setting (December 19, 2012);

·           
To
MSHA (December 28, 2012, and March 11, 2013, Ex. S-42);

·           
To
Steven Ortiz (February 25, 2013, Ex. S-30); and

·           
To
Utah Workforce Services (Ex. S-37) for unemployment purposes.

The consistency among all of Keele’s
statements about the circumstances of the assault: (1) supports the credibility
of his claim of assault; (2) was available to the company to consider in reviewing
whether Keele’s statements were made in bad faith; and, (3) undercuts the
credibility of the company’s claim that its review was done in good faith and
without pretext.

Additionally, the fact that Keele made
his complaint to the prosecuting authorities under oath, subject to potential
criminal penalties, and the fact that those prosecuting authorities did not
even mention that dimension of Keele’s complaint in the “no-prosecution” letter
certainly does not support management’s perception that the prosecutor’s
declination to file criminal charges against Poulson provided proof of Keele’s having
made a false statement. Management’s eagerness to characterize Keele’s allegations
as false is weighty evidence of their intent to retaliate. The weight of the
evidence underscores the consistency of Keele’s various statements about what
happened. I do not find any evidence in this case to support a finding of bad
faith on Keele’s part, especially considering the fact that he filed a sworn
statement, subject to the penalties of perjury, with the Sheriff’s Department
regarding the assault.

The second reason for termination, i.e.,
that Keele offered no reasonable explanation to attorney Ortiz why the
surveillance video footage was inconsistent with Keele’s statement, also fails
to show Keele acted in bad faith, which is purportedly the standard created by
the company against which to judge allegations such as Keele’s. First, Ortiz’s
question does not square with the good faith statement standard set out in the
company’s policies. If the decision makers were concerned about fairly applying
the policy statements relating to reporting of alleged assaults and the
assurance of no reprisal in response to such reporting, they could have focused
on whether Keele’s allegations were made in good faith, not whether they were
in agreement with their own decidedly self-protective interest in making this
very messy allegation go away.

Second, it is questionable whether Keele
could have answered the question Ortiz posed in a manner that would have
satisfied the decision makers at all. Keele was fired for failing to convince
the decision makers – a group that included the accused, Rick Poulson – that
his assault accusation was consistent with their prior interpretation of the
surveillance video. The structure of this inquiry (loaded question or complex
question fallacy) is the equivalent of the famous joke question: “When did you
stop beating your wife?” It presupposes a conclusion that is at least arguably
at odds with most of the evidence, including the video itself. It is also posed
in such a way that any response could be seen as a condemnation. The question
attempts to limit any direct reply to be one that serves the questioner’s
agenda.[34]
Since management had already reached the desired conclusion that Keele’s story
was inconsistent with the video evidence (Tr.3 37:14-25), Keele could not have
provided any clarity to the inquiry without either agreeing with the
pre-determined interpretation that the video did not show an assault or
agreeing that his allegation of assault was false in the first place.

This is not merely a curious conundrum. It
is evidence of pretext. It is evident that a decision had already been made to
twist away from the company’s policy statements about encouraging free
reporting of prohibited behaviors and freedom from reprisal for making even an
erroneous report in good faith. The process offered in evidence to show the bona
fides of management’s response to and handling of Keele’s accusation was
distorted and misapplied. Not only was the process unconvincing, it was used as
a tactic to defend against Keele’s accusation.

It must be noted that Respondent’s
entire argument rests on the surveillance video footage. Respondent claims that
based on this alone, Keele was lying about his assault claim. This is simply
not true. Respondent cannot base its argument solely on the fact that the video
does not explicitly show a sexual assault. The angle of the camera does not
allow viewers to explicitly see Poulson’s actions because he was partially
blocked by the mantrip. Thus, Respondent cannot claim with certainty that Rick
Poulson did not assault Keele. I have, however, as discussed above, concluded
that based upon a preponderance of evidence Rick Poulson did assault Keele.

The company failed to consider any
alternative interpretation of the video. There is no discussion of what other
elements bear on their assessment of Keele’s good faith in making his
complaints. This “rush to judgment” seriously undercuts the credibility of the
company’s decision making process, which in turn supports a finding of pretext.
Furthermore, the fact that the company consulted with Rick Poulson in deciding
to fire Keele further erodes the process credibility. The company ignored its
policy promise not to take action against an employee who lodges a good faith
complaint by allowing Poulson to participate in the decision-making process.

The other pieces of evidence relating to
the alleged assault are independently sufficient to at least give the
Respondent reason to carefully evaluate and weigh Keele’s allegations against
the surrounding contextual facts, which they appear not to have done. Even
independent of the context of the company’s policy statements regarding freedom
from assault and protection against retaliation for anyone making a good faith
claim of assault in the workplace, Keele’s unwavering adherence to his claim of
assault and the evidence corroborating its elements strongly support a finding
that an assault did happen and even more strongly support Keele’s good faith in
making the claim.  

I conclude that the company’s actions
against Keele were not taken in good faith. They were a pretext. Management chose
to ignore the company’s policy promises and to ignore the preponderant evidence
that Keele was telling the truth. This supports the further conclusion that the
company’s proffered justification for termination and the process by which it
was done were neither credible nor plausible.

D.    Inadequate
Investigation into Keele’s Complaint

An employer’s insufficient investigation
into an employee’s complaint may be evidence of discriminatory motive or
intent. Sec’y of Labor ex rel. Lopez v. Sherwin Alumina, 36 FMSHRC 730
(Mar. 2014)(ALJ Bulluck)(the investigation was a “sham” that amounted to a
“witch hunt” designed to fire the miner, in particular where the employer had
already decided to fire the miner before meeting with him as part of the
investigation).  I conclude that the decision to discipline Keele was the
result of such an insufficient and questionable investigation.

Stone only interviewed Keele, Lea, and
Cox. (Ex. S-31) She did not interview Rick Poulson because she was not
permitted to speak to him because the company had hired him a criminal defense
attorney (Tr.2 at 182:21 – 183:5), and he had been advised not to participate.
(Tr.2 at 183:1-3; Tr.2 at 254:23-25; Tr.3 at 19:5-6) It is troubling that the
company hired Poulson a criminal defense attorney before conducting an
investigation into the events of December 17, 2012. It calls into question the
company’s bona fides in carrying out its published policies of
soliciting good faith complaints from employees and honestly and competently
investigating such complaints. It is astounding that, in addition to hiring Rick
Poulson a criminal attorney, which had the effect of shielding him from an
internal investigation, the company allowed Poulson to participate in the
decision to fire Keele. Including Rick Poulson in the decision to terminate
Keele severely impugns Respondent’s process credibility.

The February 25, 2013 interrogation by
Ortiz provided no additional information, as Keele’s testimony was essentially
the same as the report from Stone. Again, Keele gave Ortiz details about other
alleged incidents of bullying behavior on the part of Rick Poulson, however,
Ortiz did not follow up on Keele’s allegations. (Ex.S-30 at 45:2-47:17) Keele
even told Ortiz that this incident was not the first time Poulson had threatened
him. (Ex. S-30, at 47:1-22) Around the end of July or beginning of August,
2012, Poulson allegedly threatened Keele for making grievance complaints. Id.
Surprisingly, no one from management, nor anyone hired by management to
investigate the incident on December 17, 2012, looked into this. Russell
Archibald, Keele’s union representative was present during the Ortiz interview,
and he corroborated the information about Poulson’s past assault on at least
one miner. (Ex. S-30, at 47:16-25) Additionally, both Don Childs and Paul Priest
reviewed the Ortiz investigation transcript and failed to react to the
additional allegations made against Rick Poulson. (Tr.2 at 220:17-19; Tr.2 at
263:3-11; Tr.2 265:8-13)

Cindy Crane made the ultimate decision
to terminate Keele.  However, she did not review anything other than the video
footage. (Tr. 3 at 37:14-15) She did not review the hotline complaint, (Tr.3 at
38:15-23) or any reports or information from Stone or Ortiz, (Tr.3 at
33:11-20), or any of Keele’s statements, including the sworn statement provided
to the Sheriff. Id. Additionally, Crane had input and recommendations
from Paul Priest, Don Childs, and Rick Poulson as to whether Keele should be
terminated. (Resp. Brief at 17; Tr.2 at 263:1-16; Tr.3 at 15:5-8; Ex. S-40, p.
10)

I find that the insufficiency of the
investigation is evidence of discriminatory intent against Keele. This lack of
process credibility is proof of pretext.

VI.            
Conclusions
of Law

From December 17, 2012, until March 7,
2013, the day Keele was terminated, he engaged in ten instances of protected
activity. Respondent made an unconvincing “business judgment” argument for
Keele’s termination, namely that Keele falsely accused Poulson of sexually
assaulted him, and thus violated the company’s Business Code. Based on the
weight of evidence submitted at the hearing, I am convinced that mine
management had already made a determination to fire Keele, and they used Keele’s
assault allegation as a means to their preferred end. The weight of evidence
and reasonable inferences drawn from it support the conclusion that Keele
engaged in protected activity and that Respondent terminated him in response.

Respondent’s proffered reasons for
Keele’s termination are unpersuasive. Management’s claim that Keele fabricated
the assault story to retaliate against management because of contract
negotiations is unconvincing and far-fetched.  Other than mine management’s
notably uniform opinion that Keele’s tagging out the mantrips was an
intentional attempt to disrupt mining operations motivated by his loyalty to
the union, there is no evidence to support the idea that Keele had any motive
related to the tensions surrounding the contract negotiations. It is noteworthy
that all of the company’s witnesses candidly expressed markedly similar
suspicions that Keele and Lea were out to sabotage production, while at the
same time uniformly denying any intent on their own part to retaliate in
response. Management’s perception that Keele’s actions were related to
increased tension is mere speculation. However, due to the lack of connection
between Keele’s complaint about the assault and the apparent degree to which
management seems to have been motivated to act against him, it is reasonable to
infer that management’s failure to competently, fairly, or thoroughly
investigate all of the pertinent and obvious evidence Keele suggested in his
various statements about the assault was consistent with: (1) an intent to
retaliate against Keele; (2) their perception of union chicanery; and (3) their
purpose to push back against it.  

I can detect no modicum of honest effort
by the Respondent to fully develop the facts and evaluate what happened here. The
overriding impression I get from reviewing the evidence is that the Respondent
used its business processes as a pretext to avoid fairly evaluating Keele’s
allegations. This is particularly significant because Keele’s termination for
engaging in protected activity has the potential of discouraging other minors
from making safety complaints for fear of retaliation.

This is not a situation where the court
disagrees with the company’s decision. Management’s decision results from a self-protective
and perhaps vindictive interest in discrediting Keele. Objectively, the only
thing that supports the company’s assessment of Keele’s lack of good faith is its
interpretation of the video evidence. The failure to conduct a credible
investigation and to credibly weigh all the evidence, and the immediate
decision (ignoring preponderant and consistent evidence to the contrary) that
Keele was lying justify the court’s conclusion that management used the internal
investigation process as a pretext to fire Keele.

In light of the evidence of
discriminatory animus and the deviation from established company policy, I conclude that
Keele has shown by a preponderance of the evidence that the proffered reason
for the termination was a pretext.  

VII.         
Penalty
Amount

The principles governing the authority
of Commission administrative law judges to assess civil penalties de novo for
violations of the Mine Act are well established. Section 110(i) of the Mine Act
delegates to the Commission and its judges the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). Under Section 110(i)
of the Mine Act, the Commission is to consider the following when assessing a
civil penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of such penalty to the size of the business of the operator
charged; (3) whether the operator was negligent; (4) the effect on the
operator's ability to continue in business; (5) the gravity of the violation;
and (6) the demonstrated good faith in abatement of the violative condition. 30
U.S.C § 820(i). Thus, the Commission
alone is responsible for assessing final penalties. See Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir.
1984) (“[N]either the ALJ nor the Commission is bound by the Secretary's
proposed penalties … we find no basis upon which to conclude that [MSHA's Part
100 penalty regulations] also govern the Commission.”); see American Coal
Co., 35 FMSHRC 1774, 1819 (July 2013)(ALJ).

The Commission has repeatedly held that
substantial deviations from the Secretary's proposed assessments must be
adequately explained using the section 110(i) criteria. E.g., Sellersburg
Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations
omitted). A judge need not make exhaustive findings but must provide an
adequate explanation of how the findings contributed to his or her penalty
assessments. Cantera Green, 22 FMSHRC at 622.

Although all of the statutory penalty
criteria must be considered, they need not be assigned equal weight. Thunder
Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Generally speaking, the
magnitude of the gravity of a violation and the degree of operator negligence
are important factors, especially for more serious violations for which
substantial penalties may be imposed. Musser Engineering, 32 FMSHRC
at 1289 (judge justified in relying on utmost gravity and gross negligence in
imposing substantial penalty); Spartan Mining Co., 30 FMSHRC 699,
725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based
upon findings of extreme gravity and unwarrantable failure); Lopke
Quarries, Inc., 23 FMSHRC 705, 713 (July 2001) (judge did not abuse
discretion by weighing the factors of negligence and gravity more heavily than
the other four statutory criteria.). In addition, Commission ALJs are obligated
to explain any substantial divergence between a penalty imposed and that
proposed by the Secretary. See Sellersburg Stone Co., 5 FMSHRC at
293.

The size of this operator and the
controlling entity as of 2012 was 3,294,734 in annual tonnage. The number of
violations per inspection day was 0.28. There was no history of 105(c)
violations. Respondent stipulated that the proposed penalty will not affect
Energy West’s ability to remain in business.

As to gravity and negligence,
Respondent’s response and investigation into Keele’s December 17, 2012, complaint
was inadequate and motivated by animus. Keele’s work duties were curtailed in
response to his tagging out the mantrips. Management’s actions could have a
chilling effect on miners who wish to raise legitimate safety and health
concerns. This is unacceptable when the Mine Act is written to protect miners
who wish to alert mine management and MSHA of health and safety violations. Therefore,
I conclude that the Respondent violated Sec. 105(c), and its negligence was
high. Accordingly, the Secretary’s penalty recommendation of $20,000.00 is
reasonable and appropriate.

WHEREFORE, it
is ORDERED that:

1.      Keele is REINSTATED
at the Deer Creek Mine to the same or equivalent position he held at the time
of his suspension;

2.      The Respondent
must expunge Keele’s employment record of any negative reference to these
discrimination proceedings, and any negative statements or inferences regarding
the Respondent’s claim that Keele fabricated false statements;

3.      Energy West must
pay $20,000.00 in civil penalties;

4.      Keele’s
temporary economic reinstatement is hereby DISSOLVED; and

5.      Within 30 days
of this Decision, the parties must send their post decision briefs regarding
the narrow issue of Keele’s claim that the Respondent failed to pay all that he
was entitled to under the economic reinstatement agreement.

/s/ L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Tyler P. McLeod, Esq.,
United States Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 515, Denver, CO 80204

Willa B. Perlmutter,
Crowell & Moring, 1001 Pennsylvania Avenue, NW, Washington, DC 20004

[1] Tr.1 refers to
the transcript for the first day of the hearing, Tr.2 for the second day, and
Tr.3 for the third day.

[2] These findings
of fact here and below are based on the record as a whole and my careful
observation of the witnesses during their testimony. In resolving any conflicts
in the testimony, I have taken into account the interests of the witnesses, or
lack thereof, and consistencies, or inconsistencies in each witness’s testimony
and between the testimonies of other witnesses. In evaluating the testimony of
each witness, I have also taken into account his or her demeanor. Any perceived
failure to provide detail about any witness’s testimony is not a failure on my
part to consider it. The fact that some evidence is not discussed does not mean
that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436
(8th Cir. 2000) (administrative law judge is not required to discuss all
evidence and failure to cite specific evidence does not mean it was not
considered). I have also fully considered the contents of the official file,
including the pre- and post-hearing submissions of the parties, and the
exhibits admitted into evidence.

[3] The Safety Committee
is an elected position. The committee consists of 12-13 people who conduct
monthly or bimonthly inspections of the mine to address safety issues. (Tr.11
at 36:25 – 37:3)

[4] At the time of
the hearing, Brian Lea had been working at the Deer Creek Mine for
approximately 17 years and had been a diesel mechanic for nine months. (Tr.2 at
33:11-22)

[5] Rudy Madrigal
was the diesel mechanic supervisor at the time of the incident. (Tr.1 at
46:8-12)

[6] Ex. S-21
contains Keele’s handwritten notes on the mantrips they inspected, which were
submitted to management. (Tr.1 at 52:4-9)

[7] At the time of
the hearing, Darrel Bagley was Keele’s immediate supervisor during the
afternoon shifts. (Tr.1 at 38:17-19)

[8] Rick Poulson is
the general manager at Energy West and Bridger Coal. (Tr.2 at 163:10-12) Rick Poulson
worked for Energy West for 23 years, then went to work at three other coal
companies for eight years, and then went back to Energy West in 2007 to the
present and was promoted to general manager over Energy West’s two operations
two months before trial. (Tr.2 at 163:14-20) Before that, he was the general
manager at Deer Creek only. (Tr.2 at 163:21-23) Prior to being the general
manager at Deer Creek for three years, he was maintenance superintendent for
about four years. (Tr.2 at 164:7-11)

[9] At the time of
the hearing, Don Childs was the Director of Human Resources with Energy West
Mining Company. (Tr.2 at 206:18-25)

[10] There was, in
fact, an investigation performed two days later, on December 19, 2012. This is
discussed further below.

[11] Everyone who
worked in the shop and all of the relevant management people knew there were
cameras capturing everything that happened there. (Tr.1 at 60:13-20)

[12] Normally, a
claim of sexual assault would not be central to a discrimination claim under
105(c), however, Respondent claims as an affirmative defense that Keele lied
about the sexual assault, and because of his false statement, he was in
violation of Respondent’s Business Code, which justified his termination.

[13] Respondent made
the argument that because Keele did not react more obviously to the contact,
the contact did not occur. I find this argument unconvincing. It takes a split
second to make a decision and to react to an action of another. It is
reasonable to infer that Keele did not react more obviously because he was
already apprehensive that he might lose his job and he was able to hold back
any further reaction.

[14] Lea did not
observe the physical contact. (Tr.2 at 44:1)

[15] Lea knew Keele
was going to call the Sheriff’s office. (Tr.2 at 46:15-17)

[16] At the time of
the trial, Paul Priest was Vice President of Safety and Labor Relations at
MidAmerican Energy Holdings Company. (Tr.2 at 246:13-14)

[17] At the time of
the hearing, Cindy Crane was Vice President of PacifiCorp for nine years. (Tr.3
at 6:14-15)

[18] Lea also filed
a complaint which stated that his job was threatened for engaging in a
protected activity. (Tr.2 at 46:13-14) Lea also called the Berkshire Hathaway
toll-free number and the MSHA hotline on December 17, 2012. (Tr.2 at 46:1-4)

[19] At the time of
the hearing, Carl Beckstead was the foreman over the in-service shop. (Tr.1 at
105:9-25) Beckstead’s nickname is “Bummer.” (Tr.2 at 86:16-19) He had been the
surface foreman over all of the surface and the diesel for about six years.
(Tr.2 at 87:15-15) He did not have hiring or firing authority at the mine.
(Tr.2 at 89:15-17)

[20] At the time of
the hearing, Debra Stone worked for Evolutionary HR and was hired to conduct an
investigation into Keele’s hotline complaint. (Tr.2 at 255:9-10; Tr.2 at
274:20-23)

[21] Kenny Rhodes
testified at the hearing and confirmed that Poulson threatened him and stated:
“Get out of here before I shove that windshield wiper up your ass."(Tr.2
at 78:1-25) Rhodes testified that Beckstead and two other miners were present
during this exchange. Id.

[22] These past and
arguably similar incidents are listed as examples of the inadequacy of Stone’s
investigation, which will be discussed further below.

[23] At the hearing,
Keele confirmed under oath that he did not make any false statements during
this interrogation. (Tr.1 at 45:6-16)

[24] These incidents
are not used as evidence that Rick Poulson engaged in bullying behavior with
other miners. They are, however, evidence of the inadequacy of Ortiz’s
investigation.

[25] At the time of
the hearing, Jason Marietti was Keele’s immediate supervisor on the day shift.
(Tr.1 at 38:15-16)

[26] At the time of
the hearing, Kevin Poulson had been the general mine foreman for approximately
three years. (Tr.3 at 51:4-9)

[27] The Commission
acknowledged the Burlington Northern concept of adverse action is applicable
in § 105(c) cases in Pendley, 34 FMSHRC at 1932.

[28] After December
17, 2012, Lea was also assigned to the lifts and went underground only one more
time. (Tr.2 at 50:6-7; Tr.2 at 48:11-16)  

[29] Lea filed a
discrimination case with MSHA when he felt his job was threatened. (Tr.2 at
56:16-17) Lea was not fired after December 17, 2012, and was not disciplined
(other than being demoted). (Tr.2 at 63:7-11)

[30] It is notable
that at no point during Keele’s testimony did he refer to the tension between
the union and the company.

[31] Energy West is
an operating division of Interwest Mining, a wholly owned subsidiary of
PacifiCorp. PacifiCorp is a wholly owned subsidiary of MidAmerican Energy
Holdings Company. Energy West employees are subject to the MidAmerican Energy
Holdings Company’s Code of Business Conduct. (Stipulations 8, 9, and 10)

[32] Prosecution was
declined on January 22, 2013, just 37 days after Keele made his complaint. Keele
was fired on March 7, 2013, forty-five days after Poulson was released from any
criminal exposure. Cindy Crane testified that management “never got anything
definitive saying, ‘We're not doing this’ or ‘We are doing this,’ but in verbal
conversation Paul Priest was able to obtain [. . .] information” that the
County Attorney was not going to prosecute. (Tr.3 at 20:1 –21:4.)

[33] Under §
76-8-504 of the Utah Code: “A person is guilty of a class B misdemeanor if (1)
He makes a written false statement which he does not believe to be true on or
pursuant to a form bearing a notification authorized by law to the effect that
false statements made therein are punishable […]” In Utah, a class B
misdemeanor is punishable by up to six month in jail and up at a $1,000.00
fine. See Utah Code §76-3-204 and §76-3-301.

[34] Douglas N. Walton, Informal logic: a handbook for
critical argumentation 36–37 (1989).