Secretary of Labor on behalf of Cameron Garcia and Cheryl Garcia v. Veris Gold U.S.A., Inc.

Plain-English summary

Cameron Garcia alleged that Veris Gold fired him shortly after he reported equipment safety problems internally and filed an MSHA hazard complaint. Cheryl Garcia alleged that ongoing harassment tied to her safety reports and participation in an MSHA investigation compelled her to resign. Judge David P. Simonton found both complaints were not frivolously brought, leaving disputes about timeliness, misconduct, and the company's explanations for the merits proceeding. He ordered both miners returned to their former positions with pay, hours, benefits, and overtime based on payroll records rather than their higher claimed overtime. He denied economic reinstatement for Cheryl because that arrangement requires the operator's agreement, while noting that Veris could consent later.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45(d)
• Outcome: Cameron and Cheryl Garcia were temporarily reinstated to their former jobs, but Cheryl's request for economic reinstatement was denied.
• Later orders: Cameron's interim relief was later dissolved in west-2014-788-dm-alj, and a separate order addressed Cheryl in west-2014-789-d-alj.
• Key point: Physical temporary reinstatement may be ordered on a non-frivolous complaint, but economic reinstatement requires agreement by both the miner and operator.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

July 16, 2014

SECRETARY OF LABOR, (MSHA),

on behalf of Cameron Garcia,

Complainant,

v.

VERIS GOLD U.S.A., INC.,

Respondent.

SECRETARY OF LABOR, (MSHA),

on behalf of Cheryl Garcia,

Complainant,

v.

VERIS GOLD U.S.A., INC.,

Respondent.

DISCRIMINATION PROCEEDINGS

Docket No. WEST 2014-788-DM

MSHA Case No.: WE MD 14-17

Docket No. WEST 2014-789-DM

MSHA Case No.: WE MD 14-16

Jerritt Canyon Mill Mine

Mine ID: 26-01621

DECISION

Appearances:               Seema
Patel, U.S. Department of Labor, Office of the Solicitor

90
Seventh Street, Suite 3-700, San Francisco, CA 94103

Peter
Gould, Squire Patton Boggs (US) LLP

1801
California Street Suite, 4900 Denver, CO 80202

Before:                        Judge Simonton

DECISION
AND ORDER GRANTING APPLICATION FOR REINSTATEMENT FOR CAMERON GARCIA AND CHERYL
GARCIA AND DENYING REQUEST FOR ECONOMIC REINSTATEMENT OF CHERYL GARCIA

On June 20, 2014, pursuant to section 105(c)(2) of
the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. §801, et. seq.,
and 29 C.F.R. §2700.45,
the Secretary of Labor (“Secretary”) filed Applications for Temporary
Reinstatement of miners Cameron Garcia and Cheryl Garcia[1]
 to their former positions with Veris Gold U.S.A., Inc. (“Veris” or “Respondent”)
at the Jerritt Canyon Mill Mine.

Read in full, Mr. Garcia’s original complaint
stated “I was terminated because I reported unsafe actions to my employer.” Cameron
Garcia Discrimination Complaint, 2. Read in full Ms. Garcia’s original
complaint stated “I was let go immediately after giving my notice because I was
constantly being harassed and discriminated against because I reported safety/
health concerns to my employer.” Cheryl Garcia Discrimination Complaint, 2.

Based upon the findings of an MSHA Special
Investigator, the Secretary asserts that these Complaints were not frivolously
brought and requests an Order directing Respondent to reinstate Mr. Garcia to his
former position and rate of pay including overtime, which Mr. Garcia has represented
to be between 24-30 hours per week. Cameron Garcia Application, 3; Cameron
Garcia Discrimination Complaint, 1. The Secretary also asks that I order
economic reinstatement for Ms. Garcia at her previous rate of pay including
overtime, which Ms. Garcia has represented to be between 24-30 hours per week.
Cheryl Garcia Application, 3; Cheryl Garcia Discrimination Complaint, 1.

On June 30, 2014 Respondent filed a “Combined
Opposition to the Secretary’s Application for Temporary Reinstatement.” “Resp.
Mot.” Within, the Respondent presented a detailed rebuttal argument and
requested that the Court deny the applications, stating that Mr. Garcia and Ms.
Garcia’s complaints were frivolously brought and that Mr. Garcia’s complaint
was late filed and time barred. Resp. Mot.,12, 16. Additionally, the Respondent
asserted that even if the court granted temporary reinstatement, both Mr. and
Ms. Garcia’s overtime requests were grossly in excess of their actual overtime
work history and presented copies of Mr. Garcia’s and Ms. Garcia’s pay stubs to
support this claim. Id. at 16: Ex. K-L.

The Respondent did not explicitly request a hearing
in these matters within their brief. Sec’y Supp. Br., 3. However, after the
Court requested clarification from the Respondent on whether they were requesting
a hearing, Respondent’s Counsel issued an e-mail on July 1st to the Court and
the Secretary’s representative stating that they were reserving a right to a
hearing in these dockets. July 1, Gregory M. Louer. On July 2, the parties
participated in a teleconference where the Respondent stated that they preferred
the Court to rule after considering the Secretary’s application and the
Respondent’s Motion in Opposition but would participate in a hearing if the
Court or Secretary objected. Sec’y Supp. Br., 3. The Secretary did not object to
the proposed procedure and I requested that the parties file a Joint
Stipulation agreeing to a “decision on the motions” and then submit appropriate
briefs per an agreed upon schedule. Id. During the conference call, I
emphasized to the parties that I would only consider evidence and arguments
appropriate to these temporary reinstatement proceedings.

On July 3, 2014 the parties submitted the following
Joint Stipulation:

1. The Secretary filed an Application
   for Temporary Reinstatement of Cheryl Garcia and an Application for Temporary
   Reinstatement of Cameron Garcia in above captioned proceedings, respectively,
   on June 20, 2014.

2. Veris timely filed its Combined
   Opposition to the Secretary's Applications for Temporary Reinstatement on
   Behalf of Ms. Cheryl Garcia and Mr. Cameron Garcia on Monday, June 30,2014.

3. The Parties recognize, however, that
   an evidentiary hearing on the Secretary's applications for the temporary
   reinstatement of Mr. Cameron Garcia and Ms. Cheryl Garcia (collectively, "the
   Complainants") may not be necessary to the proper disposition of the
   instant temporary reinstatement cases.

4. Instead, Petitioner and Respondent
   agree that this Court shall rule on the Secretary's applications after
   considering:

a. The applications
filed on June 20, 2014;

b. Respondent's Combined Opposition to
the Secretary's Applications for     Temporary Reinstatement on Behalf of Ms.
Cheryl Garcia and Mr. Cameron Garcia filed on June 30, 2014;

c. A responsive brief to be filed by
the Secretary no later than July 7, 2014; and

d. A reply brief to be
filed by the Respondent no later than July 9, 2014.

5. The Court will limit its review of
   the documents listed in paragraph 4, above, to the scope of a hearing on an
   application for temporary reinstatement, as defined by Commission Rule 2700.45(d),
   "to a determination as to whether the miner's complaints [subject to the
   above captioned proceedings] were frivolously brought."

6. If the Court is unable to make a
   determination on whether the complaints subject to the above captioned
   proceedings were frivolously brought on the basis of the documents listed in
   paragraph 4, above, the Court shall schedule an evidentiary hearing in
   accordance with Commission Rule 2700.45(d).

Jt. Stip., 1-2.

On July 7, 2014 the Parties also filed the
following Joint Stipulation for Purposes of Supplemental Briefing:

1.  
At all relevant times hereinafter mentioned, Veris Gold U.S.A, Inc.,
(“Veris” or

“Respondent”) was an “Operator” as defined in Section 3(d) of the Mine
Act, 30 U.S.C. §802(d). The federal mine identification number for Jerritt
Canyon Mill Mine is 26-01621.

2. Jerritt Canyon Mill Mine, the mine and milling operation at which
   Respondent operated and performed services or construction, is located at or
   near Elko, Nevada and is a “mine,” the product of which enters commerce or the
   operations or products of which affect commerce, all within the meaning of
   Sections 3(b), 3(h) and 4 of the Mine Act, 30 U.S.C. §§ 802(h) and 803.

3. Complainant, Cameron Garcia, worked for Respondent at Jerrit Canyon
   Canyon Mill Mine as a Strip Operator, and is a “miner” within the meaning of
   Section 3 (g) of the Mine Act, 30 U.S.C. § 802(g). Complainant, Cheryl Garcia,
   worked for Respondent at Jerrit Canyon Mill Mine as an Industrial Hygiene
   Coordinator, and is a “miner” within the meaning of Section 3 (g) of the Mine
   Act, 30 U.S.C. § 802(g).

4. On January 28, 2014 Respondent Terminated Mr. Garcia’s employment.

Jt. Stip. for Supp. Br., 1-2.

On July 7, 2014 the Secretary filed a Supplemental
Brief per the stipulated briefing schedule. Sec’y Supp. Br. The Secretary moved
within her supplemental brief to wholly exclude the Respondent’s Motion in
Opposition and subsequent Reply Brief. Sec’y Supp. Br., 3. Pursuant to 29
C.F.R. § 2700.1(b) and Fed. R. Civ. P. 12(f), I strike this request as contrary
to the specific stipulation agreed to by the parties on July 3, 2014 and Commission
Rule 2700.45(d). Jt. Stip., 2, 4- b, d; 29 CFR § 2700.45 (d) (“The Respondent
may present testimony and documentary evidence in support of its position that
the complaint was frivolously brought.”). On July 9, 2014 the Respondent filed
a Response Brief per the stipulated briefing schedule. Resp. Br. As the
Secretary and Respondent stipulated to the above procedure, I have considered
1) the Secretary’s June 20 Application for Temporary Reinstatement, 2) the
Respondent’s June 30 Combined Motion in Opposition, 3) the Secretary’s July 7,
2014 Supplemental Brief and 4) the Respondent’s July 9, 2014 Reply Brief.[2]
However, as the Commission has issued strict evidentiary guidelines for
temporary reinstatement proceedings, while I have considered facts presented by
the Respondent in consideration of the totality of the circumstances, I have primarily
restricted my review of the Respondent’s Motion in Opposition and Reply to
properly raised arguments regarding the legal sufficiency of the Secretary’s
application. Sec’y of Labor o/b/o Albu v. Chicopee Coal Co., 21 FMSHRC
717, 719 (July 1999). For the reasons stated below, I GRANT both Cameron
Garcia and Cheryl Garcia’s Application for Temporary Reinstatement at the
Jerrit Canyon Mill Mine, but DENY the Secretary’s request for the economic
reinstatement of Cheryl Garcia.

TEMPORARY
REINSTATEMENT

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

Congress created the temporary
reinstatement as “an essential protection for complaining miners who may not be
in the financial position to suffer even a short period of unemployment or
reduced income pending the resolution of the discrimination complaint.” S. Rep.
No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624-25
(1978).

Temporary Reinstatement is a
preliminary proceeding, and narrow in scope. As such, neither the judge nor the
Commission is to resolve conflicts in testimony at this stage of the case. Sec’y
of Labor o/b/o Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The
substantial evidence standard applies. Sec'y of Labor o/b/o Peters v.
Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary
reinstatement hearing is held for the purpose of determining “whether the
evidence mustered by the miners to date established that their complaints are
non-frivolous, not whether there is sufficient evidence of discrimination to
justify permanent reinstatement.” Jim Walter Resources, 920 F.2d 738, 744 (11th Cir.
1990).

In adopting section 105(c), Congress indicated that a
complaint is not frivolously brought if it “appears to have merit.” S. Rep. No.
181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624-25
(1978). In addition to Congress' “appears to have merit” standard, the Commission
and the courts have also equated “not frivolously brought” to “reasonable cause
to believe” and “not insubstantial.” Sec'y of Labor o/b/o Price v. Jim
Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th
Cir. 1990). “Courts have recognized that establishing ‘reasonable
cause to believe’ that a violation of the statute has occurred is a ‘relatively
insubstantial’ burden.” Sec'y of Labor o/b/o Ward v.
Argus Energy WV, LLC, 2012 WL 4026641, *3 (Aug. 2012) citing Schaub v. West Michigan Plumbing
& Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001).

In order to establish a prima
facie case of discrimination under section 105(c) of the Act, a complaining
miner must establish (1) that he engaged in protected activity and (2) that the
adverse action complained of was motivated in any part by that activity. Sec'y
of Labor o/b/o 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 (3rd Cir. 1981); Sec'y on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (April 1981).

However, in the instant matters,
the Secretary need not prove a prima facie case of discrimination with
all of the elements required at the higher evidentiary standard needed for a
decision on the merits. Rather, the same analytical framework is followed
within the “reasonable cause to believe” standard. Thus, there must be
“substantial evidence” of both the applicant's protected activity and a nexus
between the protected activity and the alleged discrimination. To establish the
nexus, the Commission has identified these indications of discriminatory
intent: (1) hostility or animus toward the protected activity; (2) knowledge of
the protected activity; and (3) coincidence in time between the protected
activity and the adverse action. Sec'y of Labor o/b/o Lige Williamson v. CAM
Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has
acknowledged that it is often difficult to establish a “motivational nexus
between protected activity and the adverse action that is the subject of the complaint.”
Sec'y of Labor o/b/o Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.
1999). The Commission has further considered the disparate treatment of the
miner in analyzing the nexus requirement. Sec’y of Labor o/b/o Chacon v.
Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir. 1983).

Timeliness

Cameron Garcia was discharged by the
Respondent on January 28, 2014. Jt. Stip. for Supp. Br., 2. Cheryl Garcia
resigned from her position on February 28, 2014. Cheryl Garcia Aff., 3; Resp.
Mot. Opp., 8. Cameron and Cheryl Garcia both filed their discrimination
complaints on May 6, 2014. Sec’y Supp. Br., 13-14. Thus, Mr. Garcia filed his
complaint 98 days after his discharge, while Ms. Garcia filed her complaint 67
days after her resignation. As such, both Complainants failed to file within the
60 day period allowed for by Section 105(c) 2. [3]30
USC 815 (c) 2. However, as acknowledged by both parties, the Commission has
held that this filing period is not jurisdictional and may be equitably tolled
by justifiable circumstances including genuine ignorance, mistake,
inadvertence, and excusable neglect. Consolidation Coal Co., 6 FMSHRC
21, 24 (Jan. 1984); Phillips Dodge Morenci, Inc., 18 FMSHRC 1918,
1921-22 (Nov. 1996). The Secretary contends that neither Ms. Garcia nor Mr.
Garcia were aware of their right to file a discrimination complaint until
former Veris Safety Manager Danny Lowe informed them of this right.[4]
Sec’y Br., 14.

Furthermore, based upon a footnote
contained in Sec’y of Labor o/b/o Young v. Lone Mountain Processing, 20
FMSHRC 927, 932 n. 6 (Sept. 1998) (declining to consider timeliness of
underlying discrimination complaint at the Commission level after finding that
job applicants were barred from seeking temporary reinstatement altogether), the
Secretary also contends that the Court may not consider timeliness during
temporary reinstatement proceedings. After carefully reviewing the Lone
Mountain Processing decision and a recent citing Commission case, I
disagree with the Secretary’s interpretation. Sec’y of Labor o/b/o Shemwell
v. Armstrong Coal Co., 34 FMSHRC 996, 1000-01(May 2012) (declining to consider
timeliness during Commission review after remanding case for a temporary
reinstatement hearing). I do recognize that the Commission has stated that the
timeliness of a discrimination complaint was to be properly considered during
the “proceeding on the merits”. Armstrong Coal Co. 34 FMSHRC, 1000-01. This
language might ordinarily appear to refer to the substantative discrimination
hearing. However, as the effect of the Armstrong Coal Co. decision was
to remand the case to the ALJ for a temporary reinstatement hearing, I am left
to conclude that the Commission simply remanded the timeliness question to the
ALJ and declined to decide the issue at the Commission level, rather than
absolutely prohibit considerations of timeliness at the temporary reinstatement
stage. Indeed, when outlining the appropriate review standard for late filed
complaints, the Secretary cites to a case in which the ALJ fully considered the
issue of timeliness during a temporary reinstatement proceeding. Sec’y of
Labor o/b/o Keith Overfield v. Highland Mining Co., 2014 WL 2920571, *13-14
(Jun. 2014) (ALJ).

However, in this particular proceeding,
as I am not able to assess the credibility of Mr. Garcia and Ms. Garcia’s
claims that they were not aware of their right to file a discrimination
complaint, or fully consider the Respondent’s rebuttal evidence on this point,
I decline to decide this issue at this time. Prior to a hearing on the merits,
I would consider summary judgment motions on the timeliness of these complaints
if properly submitted to me by either party with sufficient factual
stipulations.

Cameron
Garcia- WEST 2014-788-DM

Cameron Garcia
worked for Veris Gold from April 30, 2012 to January 28, 2014 and at all times
relevant to these proceedings served as a Strip Operator. Cameron Garcia Aff.,

1. The following is a complete list of Mr. Garcia’s representation of his
   protected activities and the alleged hostility and adverse actions encountered
   by Mr. Garcia. At this temporary reinstatement proceeding, I have detailed Mr.
   Garcia’s assertions not as findings of fact, but as possible support for his
   discrimination claim. All of the following representations are taken from Mr.
   Garcia’s affidavit and the Secretary’s supplemental brief.

January 6, 2014 -
Mr. Garcia reported that the pressure gauge on the Strip Vessel 2 was not
working to his supervisor Cecil Pranke and documents this report on a
“Five-Point Safety Card.” Cameron Garcia Aff., 1.

January 17, 2014 -
Mr. Garcia reported that the pressure gauge on the Strip Vessel 2 was not
working to Supervisor Pranke and documents this report using a “Five-Point
Safety Card.” Id.

January 18, 2014 -
Mr. Garcia reported that the Strip Vessel 1 vent, the Strip Vessel 2 pressure
gauge, and the auto valves on the bottom of a vessel were not working. Mr.
Garcia also reported that there was carbon in the Strip Vessel 2. Id.

January 24, 2014 -
Mr. Garcia filed a hazard complaint with MSHA after his safety reports were not
addressed by Veris Gold. Id.

January 25, 2014 -
Veris Gold suspended Mr. Garcia when he arrived at work, pending further
notice. Id.

January 28, 2014 -
Veris Gold terminated Mr. Garcia’s employment at the Jerritt Canyon Mill Mine. Id.

After
reviewing the Secretary’s Application, the Secretary’s supplemental brief, and
Mr. Garcia’s affidavit, it is clear that the Secretary has presented evidence
that Mr. Garcia engaged in protected activity by filing in-house safety
complaints with Veris management and filing a MSHA hazard complaint after those
concerns were allegedly not addressed by Veris. The Respondent has not, at this
point, contradicted Mr. Garcia’s representation of his protected activities. As
it is undisputed that Veris terminated Mr. Garcia on January 28, 2014 it is
also clear that there is evidence of an adverse action. Jt. Stip. For Supp.
Br., 2. Additionally, Veris’s alleged failure to respond to Mr. Garcia’s safety
concerns could support an inference of Veris’s hostility towards proper
maintenance of safety mechanisms. Cameron Garcia Aff., 1, e. Furthermore, the
close proximity in time between Mr. Garcia’s safety reports/ MSHA complaint and
his termination stand as supportable evidence of a nexus between Mr. Garcia’s
protected activities and the adverse action.

I have
reviewed the Respondent’s Motion in Opposition and Reply Brief in full as it
pertains to Mr. Garcia’s discrimination claim. I acknowledge that the
Respondent has provided affidavits and documentary evidence indicating that Mr.
Garcia was issued numerous disciplinary warnings prior to and during the time
period relevant to this complaint for unsafe or substandard work performance,
including an alleged failure to properly maintain the temperature log in the
Assay Laboratory immediately prior to his termination. Resp. Mot., 4-5: Ex. B-D.
I also acknowledge that the Respondent has provided affidavits and documentary
evidence demonstrating that another miner with a clean disciplinary record
submitted similar safety complaints in December of 2013 and was not discharged
or disciplined by Veris Gold after those safety complaints. Resp. Mot. In Opp.,
5, 11: Ex. E. Although such evidence could successfully rebut Mr. Garcia’s
discrimination claim at the substantive discrimination proceeding, Commission
precedent prevents me during this temporary reinstatement proceeding from
weighing such evidence against Mr. Garcia’s presentation of a timeline that
could support a discrimination claim. Sec’y of
Labor o/b/o Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981); Sec’y
of Labor o/b/o Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999).

I also
acknowledge that the Respondent has noted that Mr. Garcia has not presented any
evidence of obvious hostility towards his protected activities to support his
claim that he was terminated, at least in part, due to his safety hazard
reports. However, the Commission has held that it is difficult to establish a
“motivational nexus between protected activity and the adverse action that is
the subject of the complaint.” Sec'y of Labor o/b/o Baier v. Durango Gravel,
21 FMSHRC 953, 957 (Sept. 1999). Additionally, as noted above, the Commission
has specifically listed knowledge of the protected activity and a coincidence
in time between the protected activity and the adverse action as factors that
may support a discrimination claim. Sec'y of Labor o/b/o Lige Williamson v.
CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). As Veris terminated Mr.
Garcia just weeks after he submitted multiple safety complaint to Veris
management, and just one day after he filed a hazard complaint with MSHA, I
find that the Secretary has established that Mr. Garcia’s discrimination claim
was not frivously brought.

In
making this determination, I acknowledge the Respondent’s argument that I must
consider the totality of circumstances and that a coincidence in time cannot by
itself support a discrimination claim, even at the temporary reinstatement
proceedings. Sec’y of Labor o/b/o Markovich v. Minnesota Ore Operations, USX
Corp, 18 FMSHRC 1250, 1256-57 (July 1996) (ALJ), aff’d by an equally
divided court, 18 FMSHRC 1349 (Aug. 1996); Sec’y of Labor o/b/o Gregory
Bradley v. Climax Molybendum Co., 34 FMSHRC 2080, 2823 n. 13 (Oct.
2102) (ALJ). However, in reviewing the cases in which a coincidence in time
between the protected activity and the adverse action has been insufficient to
sustain an application for temporary reinstatement, it is clear that the miners
in those cases explicitly admitted to impermissible activities that clearly
warranted termination. Minnesota Ore Operations, USX Corp., 18 FMSHRC 1257
(Secretary conceded that miner had vandalized no smoking signs on many occasions,
an offense that had also led the operator to discharge a different foreman); Sec’y
of Labor o/b/o Jeffrey Fletcher v. Frontier-Kemper Constructors, 34
FMSHRC 2189, 2200 (August 2012) (ALJ) (miner admitted to working under
unsupported roof in same timeframe as other workers who were also discharged
for working under unsupported roof). In this case, neither the Secretary nor
Mr. Garcia have conceded that Mr. Garcia committed the work infractions alleged
by Veris. Furthermore, at this temporary reinstatement proceeding, even if I
were to take the Secretary’s silence on this matter within her brief as an
admission of Mr. Garcia’s misconduct, I am not currently prepared to conclude
that the Mr. Garcia’s alleged errors, including his failure to update the
temperature log at the Assay Laboratory, were so obviously egregious that they
would regularly result in termination. Resp. Mot., 4-5, Ex. B-D.

Therefore,
I ORDER that Cameron Garcia be reinstated to his former position as
Strip Operator at the same rate of pay and overtime as reflected in his
official pay records. The Respondent has submitted copies of Cameron Garcia’s
pay records indicating that he worked an average of 6.75 hours of overtime per
week over the previous 12 months. Resp. Mot. 16, Ex. L. Mr. Garcia claimed
within his discrimination claim that he worked an average of 24-30 hours of
overtime per week. Cameron Garcia Discrimination Complaint, 1. As the
Respondent has requested a ruling on this discrepancy; I ORDER the
Respondent to reinstate Mr. Garcia to the amount of overtime established by the
Respondent’s payroll records. If Mr. Garcia chooses to dispute the Respondent’s
payroll record, he may elect to file a separate complaint with the U. S. Department
of Labor’s Wage and Hour Division.

Cheryl Garcia - WEST
2014-789-DM

Cheryl Garcia
worked for Veris Gold a total of three years and at all times relevant to these
proceedings served as an Industrial Hygiene Coordinator. Cheryl Garcia Aff., 1.
The following is a complete list of Ms. Garcia’s representation of her
protected activities and the alleged hostility and adverse actions encountered
by Ms. Garcia. At this temporary reinstatement proceeding, I have detailed Ms.
Garcia’s assertions not as findings of fact, but as possible support for her
discrimination claim. All of the following representations are taken from Ms.
Garcia’s affidavit and the Secretary’s supplemental brief.

August 16, 2013 -
Ms. Garcia submitted safety complaints to upper management regarding faulty
alarms in the Refinery and Strip. Cheryl Garcia Aff., 1.

September 10, 2013

• Ms. Garcia observed temporary employees working without restroom facilities,
  water or radios and reported the condition to a supervisor. Ms. Garcia later
  learned that port-a-johns had not been ordered and ordered them herself from a
  vendor, and verified that the port-a-johns were in place on September 16, 2013.
  On the same day, after a miner raised concerns regarding a “potential safety
  hazard,” Ms. Garcia advised a worker that he did not have to work in unsafe
  conditions. Id.

October 2013 - Ms.
Garcia responded to a complaint regarding a mouse problem in the lunchroom,
photographed “evidence of mice eating the food in the refrigerator” and sent an
email to Mill Manager Kiedock Kim and Assistant Mill Manager Chris Jones about
the issue. Chris Jones responded with an e-mail sitting “What do you want me to
do about it?” Id. at 1-2.

October - November
2013 - Ms. Garcia posts a do not enter sign on the lunchroom in response to
high levels of mercury in the lunchroom. According to Ms. Garcia, Chris Jones
yelled at Safety Manager Danny Lowe about the sign and stated that Mr. Lowe and
Ms. Garcia were trying to “stab him in the back.” Id. at 2.

December
11, 2013, Ms. Garcia questioned management regarding why management was
requiring her son, Cameron Garcia, to see a doctor regarding caustic burns on
his feet, when it did not require other similarly situated miners to do the
same. Ms. Garcia also told management that such an incident must be reported to
MSHA as a potential lost time injury, to which HR Manager Dwayne Ward indicated
the company would just claim to have changed Cameron’s work schedule. Id.

December
14, 2013 - Chris Jones asked Ms. Garcia in a company hallway “Why are your boys
the only ones high on mercury? Do you go home and stick a thermometer up their
a** and break it.” Ms. Garcia responded to Chris Jones by telling him that
other miners also exhibited high levels of mercury. Id.

December
16, 2013 - Chris Jones sees Ms. Garcia limping in the hallway and asks her,
“What is the matter with you? Do you have caustic burns on your feet?” Id.

December
17, 2013 - Ms. Garcia met with MSHA Special Investigator Kyle Jackson in
connection with another MSHA investigation. Ms. Garcia testified in that case
and Ms. Garcia alleges that Dwayne Ward learned of her involvement with that
case. Id. Dwayne Ward confirms within his affidavit that he believes Ms.
Garcia made allegations regarding his conduct to a MSHA investigator. Resp.
Mot: Ex. B, 3.

December 18, 2013 -
Ms. Garcia submits a report to Manager Johnston claiming that she is being
harassed and that Chris Jones has stated “Danny Lowe and Ms. Garcia are
stabbing me in the back and f**cking me over safety issues in the Fine Crush.” Ms.
Garcia also reports that Chris Jones has stated he was going after Ms. Garcia’s
other two kids. Cheryl Garcia Aff., 3.

February
18, 2014 - Ms. Garcia is questioned regarding an allegation that she improperly
provided Danny Lowe with company documentation in connection with Lowe’s
separate MSHA complaint. Ms. Garcia denied the allegation and requested that
the report be removed from her record. Chief Operating Officer Graham Dicksen
urged her not to quit and assured Ms. Garcia that he would take care of the
write-up. Ms. Garcia claims that she “continued to experience harassment by
Chris Jones in the work place” following this meeting. Id.

February
28, 2014 - Ms. Garcia submitted a two-week notice of resignation to the Respondent.
Id. The Respondent agreed to, and did in fact, pay Ms. Garcia for the
next two weeks but ordered her to leave the mine property that same day. Resp.
Mot., 8.

After
reviewing the Secretary’s application, the Secretary’s supplemental brief, and Ms.
Garcia’s affidavit, it is clear that Ms. Garcia has presented evidence that she
engaged in protected activity by filing hazard reports, posting danger signs,
and participating in an MSHA special investigation. The Respondent’s Motion in
Opposition concedes that Ms. Garcia did in fact engage in these protected
activities, but emphasizes that they encouraged such efforts. Resp. Mot., 14.

As Ms.
Garcia resigned and did not suffer any formal demotion, transfer, or work
reduction prior to her resignation, I must find there is a reason to believe
that Ms. Garcia’s resignation was the result of “constructive discharge” in
order to grant her application for temporary reinstatement. Sec’y Br. 10 n. 5,
Resp. Mot., 13. Specifically, I must find that there is supportable evidence
that the Respondent created a workplace environment “so intolerable that a
reasonable miner would have been compelled to resign.” Sec’y of Laor o/b/o
Nantz v. Nally & Hamilton Enterprises, Inc., 16 FMSHRC 2208, 2210 (Nov.
1994).

When
viewed in isolation, none of the alleged hostility encountered by Ms. Garcia
appears to rise to the level of a serious threat or vulgarity that would truly
shock the conscious. However, when viewed together, accepting Ms. Garcia’s
representations as true at this stage, I cannot rule out the possibility that a
reasonable miner would have felt compelled to quit after experiencing continued
harassment from a fellow employee even after reporting that harassment to upper
management. Cheryl Garcia Aff., 2-3. Additionally, as Chris Jones alleged
harassment stemmed from his hostility to Ms. Garcia’s chemical contamination
reports and her son’s injury reports, it appears that there is some evidence of
a nexus between Mr. Jones hostility and Ms. Garcia’s protected activities. Id.
Although Ms. Garcia has not asserted that Mr. Jones was her direct supervisor,
she has alleged that Mr. Jones continued to harass her after her December 2013
complaint to upper management and the February meeting regarding a separate
MSHA complaint. Id.; Resp. Mot. , 14-15 n. 3. As such, at this
preliminary stage, there is a non-frivolous reason to believe that Ms. Garcia was
compelled to quit because she believed upper management had not and would not
take action to prevent Mr. Jones from continuing to harass her.

I have
reviewed the Respondent’s Motion in Opposition and Reply Brief in full as it
pertains to Ms. Garcia’s discrimination claim. I acknowledge that the
Respondent asserts that management conducted a prompt and through investigation
of Ms. Garcia’s harassment complaint against Mr. Jones and found it meritless. Resp.
Mot. 7: Ex. B, D. However, as Commission precedent precludes me from making
credibility determinations at this stage, I cannot discount Ms. Garcia’s
version of events. Secy of Labor o/b/o Albu v. Chicopee Coal Co., 21
FMSHRC 717, 719 (July 1999). I also acknowledge, as pointed out by the Respondent
and conceded by Ms. Garcia, that the Respondent actively tried to retain Ms.
Garcia when she first threatened to resign following the February 18 meeting
regarding her alleged involvement in Danny Lowe’s MSHA complaint. Cheryl Garcia
Aff., 3; Resp. Mot. 8, 15. Still, as Ms. Garcia has alleged that Mr. Jones
continued to harass her following assurances from management that she would not
be written up, there is some evidence that Ms. Garcia continued to face
hostility up until her resignation. Cheryl Garcia Aff., 3. For these reasons, I
find that the Secretary has established that Ms. Garcia’s complaint was not
frivolously brought.

Therefore,
I ORDER that Cheryl Garcia be reinstated to her previous position at the
Jerritt Canyon Mill Mine at the same pay rate and overtime amount as reflected
upon her official pay records. The Respondent has submitted copies of Cheryl
Garcia’s pay records indicating that he worked an average of 5.77 hours of
overtime per week over the previous 12 months. Resp. Mot. 16: Ex. K. Ms. Garcia
claimed within her discrimination claim that she worked an average of 24-30
hours of overtime per week. Cheryl Garcia Discrimination Claim, 1. As the
Respondent has requested a ruling on this discrepancy; I ORDER the
Respondent to reinstate Ms. Garcia to the amount of overtime established by the
Respondent’s payroll records. If Ms. Garcia chooses to dispute the Respondent’s
payroll record, she may elect to file a separate complaint with the U.S. Department
of Labor’s Wage and Hour Division.

At
this point, I DENY the Secretary’s request to order economic
reinstatement. As a jurisdictional matter, this Court does not have the
authority to order economic reinstatement without the prior express agreement
of both the miner and the operator. Sec’y of Labor o/b/o Kenneth Wilder v. Bledsoe
Coal, 33 FMSHRC 2031, 2032 (August 2011) (ALJ); Sec’y of Labor v. North
Fork Coal, 33 FMSHRC 589, 592-93 (Mar. 2011).[5]
Based upon the record, it does not appear that the Respondent has made any such
agreement.

Furthermore,
I do not agree with the Secretary’s argument that economic reinstament is
necessary due to Ms. Garcia’s allegations of a hostile work environment at the
Jerritt Canyon Mine. All discrimination claims, in essence, involve a claim of
a hostile work environment. Nevertheless, it is clear that, absent a voluntary
agreement to the contrary, “The temporary
reinstatement provisions contemplate that the miner will provide the operator
labor in return for wages and benefits.” Sec’y of Labor v. North
Fork Coal, 33 FMSHRC 592. Additionally, my temporary reinstatement findings are
not a finding that Ms. Garcia actually was constructively discharged or
actually did or would face an intolerable environment at the Jerritt Canyon
mine. They are merely a finding pursuant to Commission precedent that Ms.
Garcia has presented evidence establishing that her claims are non-frivolous. However,
I am amenable to approving the economic reinstatement of Ms. Garcia if the
Respondent agrees to such a measure.

ORDER

Based on the above findings, the
Secretary’s Applications for Temporary Reinstatement are GRANTED. Accordingly,
Respondent is ORDERED to provide immediate reinstatement to Cameron
Garcia, as a strip operator, and Cheryl Garcia, as an industrial hygienist, at
the same rate of pay, for the same number of hours worked, and with the same
benefits, as reflected upon their official pay records, as at the time of
discharge. For the reasons detailed above, the Secretary’s request for economic
reinstatement of Cheryl Garcia is DENIED.

/s/David
P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (First Class U.S. Mail)

Seema Patel, U.S. Department
of Labor, Office of the Solicitor

90 Seventh Street, Suite
3-700, San Francisco, CA 94103

Peter Gould, Squire Patton
Boggs (US) LLP

1801 California Street
Suite, 4900 Denver, CO 80202

[1]
Cameron Garcia is Cheryl Garcia’s son. I have referred to Cameron Garcia as Mr.
Garcia and Cheryl Garcia as Ms. Garcia throughout.

[2]
In agreeing to the referenced procedure, I am aware the Commission has held that
summary decision is not appropriate when the operator has requested a hearing. Sec’y
of Labor o/b/o Shemwell v. Armstrong Coal Co., 34 FMSHRC 996, 999-1000 (May
2012). However, as the Respondent requested and stipulated to a “summary
decision” in this case, I find no reason to object to the stipulated procedure.
If I have erred in granting such a request, I have erred in the interest of
reaching an efficient resolution of the parties’ dispute, rather than disregard
for Commission precedent.

[3]
The discrimination complaints filed by Mr. Garcia and Ms. Garcia appear to have
been signed on April 23, 2014. Cameron Garcia Discrimination Complaint, 2;
Cheryl Garcia Discrimination Complaint, 2; However, the time stamp on both of
these documents indicate that they were received by MSHA on May 6, 2014. Id. As
the Secretary has indicated that both applications were filed on May 6, 2014,
absent any evidence to the contrary, I am considering both applications as
filed outside the 60 day filing period. Sec’y Supp. Br., 14.

[4]
None of the briefs, application or affidavits submitted by the Secretary
specify when Mr. or Ms. Garcia learned of their right to file a discrimination
claim or clarify whether they were informed of this right before or after their
termination.

[5]
A previous Commission decision, Sec’y of Labor o/b/o Mark Gray v. North Fork
Coal, 33 FMSHRC 27 (Jan. 2011), involving the same parties was overturned
by the 6th Circuit. North Fork Coal Corp v. FMSHRC, 691 F. 3d
735 (6th Cir. 2012). However, the 6th Circuit decision
held solely that temporary reinstatement orders must be dissolved if the SOL
concludes there is no discrimination and did not disturb the Commission’s separate
holding that economic reinstatement is a voluntary option requiring consent of
both parties. Id. ; Sec’y of Labor v. North
Fork Coal, 33 FMSHRC 592-93.