Jeffrey Pappas v. Calportland Company and Riverside Cement Company

Plain-English summary

Jeffrey Pappas alleged that Riverside Cement gave negative employment references and that CalPortland refused to hire him because of earlier safety complaints and a settled discrimination case. The Commission affirmed dismissal. The judge reasonably credited Riverside's human-resources manager that her recommendation rested on Pappas's recent workplace discipline, not protected activity. Although a plant manager showed some animus, the record supported the finding that Riverside would have given the same negative reference based on Pappas's unprotected conduct alone. CalPortland's hiring decision was not shown to be motivated by protected activity, and the manager with animus was not its agent. Commissioner Robert F. Cohen concurred in the result through a different analysis of Riverside's affirmative defense.

Decision snapshot

• Cited authority: Section 105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1)
• Outcome: The ALJ's dismissal of the discrimination complaint against Riverside and CalPortland was affirmed.
• Key point: Credibility findings supported by the record receive substantial deference, and an operator defeats a mixed-motive claim by proving it would have taken the same action for unprotected conduct alone.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

JEFFREY
PAPPAS  

v.

CALPORTLAND
COMPANY and

RIVERSIDE
CEMENT COMPANY

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:

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:

Docket
No. WEST 2016-264-DM

BEFORE:
Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY: Althen,
Acting Chairman; Jordan, and Young, Commissioners

This matter arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801
et seq. (2012) (“Mine Act” or “Act”). It concerns a complaint of discrimination
filed by the Secretary of Labor on behalf of miner Jeffrey Pappas. The
complaint alleged that Riverside Cement Company (“Riverside”) and CalPortland
Company (“CalPortland”) discriminated against Pappas in violation of section
105(c) of the Mine Act. [1]

Respondent companies
contested the allegations, and the matter proceeded to a hearing before a
Commission Administrative Law Judge. Following the hearing, the Judge issued a
written decision dismissing the complaint of discrimination and concluding that
no discrimination occurred. 39 FMSHRC 718 (Mar. 2017) (ALJ). Thereafter, Pappas
filed a petition for discretionary review pro se , which we granted. The
Secretary did not file a petition on Pappas’ behalf and did not otherwise
participate in the case on appeal.

After reviewing the record
and considering the issues raised in the petition, we affirm the decision of
the Judge.

I.

Factual and Procedural Background

The Oro Grande Cement Plant
is a surface quarry and cement manufacturing facility located in California
that was operated by Riverside until October 2015. Id . at 721. Pappas
worked at the Oro Grande Plant for approximately 16 years.

On October 1, 2015,
CalPortland took over the Oro Grande Plant from Riverside, completing an asset
purchase agreement. Pappas had applied to continue working at the mine with
CalPortland, but he was not offered a position. Pappas lost his job upon the
transfer of assets. The Secretary’s complaint alleged that Pappas was not selected
to be hired by CalPortland due to the unlawful discriminatory actions of
Riverside and CalPortland.

A.    
Pappas’ prior
discrimination claim and reinstatement

In April 2014, Pappas had
been discharged from his position with Riverside purportedly for disobeying the
instruction of management to discontinue use of his personal truck on mine
property. Thereafter, Pappas filed a complaint of discrimination with the Mine
Safety and Health Administration (“MSHA”) alleging that his discharge was
actually in retaliation for his recent safety complaints. The parties
subsequently reached an agreement to settle that complaint. Pappas was
reinstated to the mine in January 2015. 

The 2014 discrimination case
concerned safety complaints Pappas made in
December 2013 regarding a train operated in proximity to miners that Pappas had
feared would hit him and other miners working with him. After a safety review,
requested by Pappas, Riverside’s safety director determined that all work was
performed consistent with company policy and MSHA regulations. Pappas addressed
the incident at the next monthly safety meeting. He accused his immediate
supervisor of falsely representing to the safety director that he had failed to
bring the issue to the supervisor’s attention, and of brushing off the concerns
Pappas expressed earlier.  Pappas testified that David Salzborn, the plant
manager, was visibly angered by these public remarks.

A
few weeks later, Pappas spoke with an MSHA inspector at the mine on a regular
inspection and communicated his safety concerns. After an investigation, the
inspector issued citations to Riverside concerning the operation of the train.

Shortly thereafter, Riverside
management instructed Pappas not to use his truck on mine property. Pappas
continued to use his truck on mine property despite this instruction. On April 4,
2014, he was discharged for alleged “gross insubordination.” Pappas filed a
discrimination complaint with MSHA alleging his termination was actually in
retaliation for his protected activities.

After an investigation, MSHA
filed a discrimination complaint on Pappas’ behalf. Thereafter, Riverside settled
the case by agreeing to reinstate Pappas to his former position, expunge all
records related to his discharge, and to pay a civil penalty. Pappas returned
to work on January 5, 2015.

B.     
Events after Pappas’
reinstatement

Pappas testified that he
faced harassment from his co-workers after his reinstatement.

In
early February 2015, Pappas met with Jamie Ambrose, Riverside’s human resources
manager, to inform her of the perceived harassment. In response, Ambrose sent instructions
to Pappas’ supervisor to monitor the work environment and to report issues to
human resources. Pappas decided to eat lunch by himself to reduce his contact
with co-workers.

On April 30, 2015, Pappas was
assigned to fix a broken dust door along with Stacey Portis. Portis, however,
failed to arrive at the job site during the shift. As a result, Pappas was
unable to complete the task and became upset. At the end of the day, Pappas confronted
Portis in the breakroom. The two engaged in a heated exchange that lasted
several minutes. Pappas cursed Portis, using obscenities and referring to him
as “lazy,” gathered his things, slammed his locker, and left the plant.

The next day, Portis filed a
complaint with Riverside, stating that Pappas had verbally assaulted him. After
Riverside’s investigation, management suspended Pappas for five days, required
him to undergo a psychological evaluation, and disqualified him from returning
as a dust collector.

On June 22, 2015, Pappas
returned to work. The United Steelworkers Union filed grievances concerning the
discipline imposed upon him.

On June 30, 2015, CalPortland
signed the asset purchase agreement with Riverside, which included an agreement
to purchase and take possession of the physical assets at the Oro Grande Plant
at a later date. Gov. Ex. 2. 

On August 27, 2015, Riverside
management met with union officials to resolve pending grievances. Riverside and
the Union settled the Pappas grievance by Riverside paying Pappas for two days of
the original five day suspension. At the conclusion of the meeting, Ron
Espinosa, the union’s international representative, called Pappas to join the
group. In front of all those in attendance, Espinosa instructed Pappas to
change his behavior at work going forward.

C.    
The decision not to rehire
Pappas

On September 1, 2015, Ambrose
accepted CalPortland’s offer to be its human resources manager at the plant. On
September 3, Ambrose met with Steve Antonoff, CalPortland’s vice-president of
human resources. Together they went through a list of current Riverside
employees. For each employee, Ambrose recommended either hiring that employee
or not hiring that employee, or she stated that she was “unsure.” [2]
Ambrose stated that she was unsure about Pappas. Antonoff highlighted every
name that did not get a positive recommendation on a spreadsheet, making no distinction
between a “no” and an “unsure.”

In mid-September, CalPortland
informed all Riverside miners that they would need to apply for a position with
CalPortland if they wished to continue to be employed at the mine. Miners,
including Pappas, filled out applications and sat for brief interviews.

Rich Walters, CalPortland’s plant
manager (replacing Salzborn), and Betsy Lamb, a CalPortland vice-president,
were responsible for staffing the mine. Salzborn informed Walters that there
were two problem employees at the plant — one of whom was Pappas. Salzborn informed
him that Pappas had been disciplined for violating work rules and insubordinate
behavior.

Walters delegated the job of
selecting employees to Lamb. She was provided with the interviewers’ notes, the
applications, and Ambrose’s recommendations. On September 25, Lamb presented
her list of recommended hires of hourly employees to Walters, who agreed to it
completely. In total, CalPortland hired 125 employees, about 100 of which were
hourly miners. CalPortland did not offer jobs to 15 applicants from Riverside,
including Pappas. Lamb testified that Pappas’ application demonstrated no progression
in employment or salary and the answers he gave during his interview did not
reflect the type of answers CalPortland sought.

On February 11, 2016, the
Secretary filed a discrimination complaint with the Commission on behalf of
Pappas. [3]
The complaint alleged that CalPortland discriminated against Pappas when he was
identified as someone who should not be retained and who was in fact not hired by
CalPortland. The Secretary later amended the complaint to add Riverside as a
respondent.

II.

The Judge’s Decision

A.    
Riverside

The Judge first considered
whether the Secretary had established the elements of a prima facie case of
discrimination against Riverside.

1. Prima Facie Case

A complainant establishes a
prima facie case under section 105(c) by presenting evidence sufficient to
support a conclusion that the individual engaged in protected activity; that
there was an adverse action; and that the adverse action complained of was
motivated in any part by that activity. See Turner v. Nat’l Cement Co. of
California , 33 FMSHRC 1059, 1064-67 (May 2011); Sec’y on behalf of
Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d
on other grounds 663 F.2d 1211 (3d Cir. 1981); Sec’y on behalf of Robinette
v. United Castle Coal Co. , 3 FMSHRC 803, 817-18 (Apr. 1981).

The Judge found that Pappas
engaged in activities protected by the Mine Act, including filing a
discrimination complaint with MSHA and complaining to Riverside management that
he faced harassment from co-workers following his reinstatement to the mine. [4]
39 FMSHRC at 739. The Judge also found that the negative employment references
from Ambrose and Salzborn were adverse actions. [5]
Id . at 740.

The Judge next considered
whether the Secretary demonstrated a relationship between the protected
activities and the adverse actions. [6]
He concluded that Salzborn exhibited animus toward Pappas’ protected
activities. The Judge relied on Pappas’ testimony that Salzborn was angered by Pappas’
public accusations regarding management’s response to the train incident. Id . at 749;
Tr. 75-76. He also relied on Salzborn’s statements to Walters, which referred
to the circumstances surrounding Pappas’ prior discharge in “deliberate
disregard” of the settlement agreement.  39 FMSHRC at 749-50. Furthermore, the
Judge found that Salzborn’s declaration that Pappas was one of two “problematic”
employees was somewhat illustrative of disparate treatment. Id. at 753. The
Judge also found a coincidence in time between the protected activity and Riverside’s
adverse actions. Id. at 751. The Judge concluded that the Secretary
established the necessary elements of a prima facie case based on Salzborn’s conduct.

However, the Judge found that
the Secretary failed to substantiate allegations that Ambrose manifested
hostility toward Pappas. The Secretary had alleged that Ambrose failed to
adequately investigate Pappas’ reports of harassment and that this was
indicative of hostility toward his protected activity. [7]
The Judge disagreed. He concluded that Ambrose responded to Pappas’ concerns: She
took steps to see that Pappas’ direct supervisor would monitor the situation
and notify human resources if the problems persisted. The Judge noted that
Ambrose did not hear back from Pappas, his managers, or his co-workers after
their February meeting. The Judge also found it persuasive that Pappas described
Ambrose’s demeanor toward him as “polite” and “professional.” Importantly, the
Judge specifically credited Ambrose’s testimony that her decision not to
recommend that CalPortland hire Pappas was based on his disciplinary issues and
not protected activity. Id . at 754. Accordingly, the Judge found neither
indications of discriminatory animus from Ambrose’s conduct nor a motivational
nexus between the negative reference by Ambrose and Pappas’ prior protected
activity. Id . at 743.

In
sum, the Judge found that the Secretary established a prima facie case against
Riverside only on the basis of Salzborn’s conduct, holding that his “warning to
CalPortland [about Pappas] was in part motivated by discriminatory intent.” Id . at 756.

2. Affirmative Defense

The Judge next considered
whether Riverside established an affirmative defense. An operator may defend
affirmatively against a prima facie case by proving that it was also motivated
by the miner’s unprotected activity and would have taken the adverse action for
the unprotected activity alone. See Robinette , 3 FMSHRC at
817-18; Pasula , 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal
Corp . v. FMSHRC , 813 F.2d 639, 642-43 (4th Cir. 1987) (applying
Pasula-Robinette test).

Riverside asserted that Salzborn
and Ambrose would have provided the negative references based on Pappas’ unprotected
activity alone — his recent suspension for a violation of the hostile work
place rule was fresh in their minds when they provided their opinions.

The Judge found the defense
to be based in fact; Salzborn and Ambrose had attended the third step grievance
meeting regarding Pappas’ suspension shortly before providing their negative
references. Id . at 756. The Judge credited Salzborn’s testimony,
finding that Pappas’ issues were recent, recurrent, and unprecedented in
provoking a union representative to summon Pappas, a union-represented miner,
to a grievance meeting and then directly instructing him to improve his
behavior in the presence of management representatives. Id . at 757. The
Judge found that Riverside successfully established an affirmative defense and held
that “[w]hile Riverside may have been motivated in part by discriminatory
animus, I find that the operator would have given the same negative references
as a result of Pappas’ unprotected activity alone.” Id . at 758.

Therefore, the Judge
concluded that the Secretary failed to demonstrate that Riverside unlawfully
discriminated against Pappas in violation of the Mine Act.

B. CalPortland

The Judge found that CalPortland’s
failure to hire Pappas was an adverse action. However, he concluded that the
Secretary failed to prove that its decision was motivated by Pappas’ protected
activity. The Judge also concluded that, although Ambrose was acting as an
agent for CalPortland when she provided the negative employment reference, she
did not demonstrate any animus toward Pappas’ protected activity.

The Judge further found that the
Secretary failed to demonstrate that any other CalPortland agent had knowledge
of, and animus towards, Pappas’ protected activity or that Pappas was treated
any differently than similarly situated employees. Id . at 762.

The Judge found that the
Secretary did not establish a prima facie case of discrimination against
CalPortland. He found further that even if a prima facie case had been
established, CalPortland had proven an affirmative defense. The Judge credited
Lamb’s testimony that Pappas provided poor answers to interview questions and
that his work history contained “red flags” such as a failure to progress,
indicating possible performance issues.   Id . at 767.

III.

Disposition

A.    
The claims against Riverside

Pappas argues that the Judge
erred in crediting the testimony of Ambrose and Salzborn in support of the
Judge’s conclusion that Riverside was not liable for discrimination. [8]

1. Ambrose’s testimony

Pappas alleges that the Judge
erred in crediting Ambrose’s testimony because it was (1) inconsistent
with statements she made to the MSHA investigator and (2) inconsistent with Antonoff’s
testimony.

The Commission has recognized
that a Judge’s credibility determinations are entitled to great weight and may
not be overturned lightly. Farmer v. Island Creek Coal Co. , 14 FMSHRC
1537, 1541 (Sept. 1992); Penn Allegh Coal Co ., 3 FMSHRC 2767, 2770 (Dec.
1981). Accordingly, the Commission reviews a Judge’s credibility determinations
under an abuse of discretion standard. See Jim Walter Res ., Inc .,
37 FMSHRC 1868, 1871 (Sept. 2015). 

We conclude that Pappas has
not met the burden of showing that the Judge erred in concluding that Ambrose’s
testimony was credible. The discrepancies between Ambrose’s hearing testimony
and other record evidence were considered and reconciled by the Judge. 39
FMSHRC at 753-54.

Ambrose testified that she
provided CalPortland with a negative employment reference for Pappas because he
had recently been suspended for engaging in threatening and intimidating
behavior.   Id . at 755-56. In crediting Ambrose’s testimony, the Judge
considered that it departed from her initial statements to the MSHA
investigator: Ambrose originally stated that she had no involvement in
CalPortland’s hiring process and did not speak with CalPortland management
about Riverside hourly employees. Gov. Ex. 17 (November 6, 2015, interview). However,
in a subsequent MSHA interview, she acknowledged that she had in fact provided employment
references for Riverside hourly employees to CalPortland. Gov. Ex. 18  (November
17, 2015). Ambrose clarified that she initially provided different information
to the MSHA investigator because she had misunderstood what the investigator
was asking. She understood him to have asked if she provided employee files or
details regarding job performance, which she maintained she did not. Gov. Ex.
18; Tr. 715. 

The Judge reasonably exercised
his discretion when he credited Ambrose’s hearing testimony and her explanation
for the apparent conflict. The Judge
noted that while Ambrose’s prior statements were at times inconsistent, her
rationale for providing a negative reference for Pappas did not change, and her
testimony at the hearing was “reasonable, detailed, and consistent.” Id .
at 754.

Pappas
also asserts that the Judge erred in crediting Ambrose’s testimony because it
differed at times from the testimony of Steve Antonoff (CalPortland’s
Vice-President for Human Resources). He points out that Antonoff testified that
Ambrose sometimes explained why she had provided a negative reference for a
particular employee (in contrast with Ambrose’s insistence that she had not). Tr.
832-33. However, with respect to Ambrose’s recommendation of Pappas, Antonoff
testified that Ambrose provided no additional information to explain her
negative reference. Tr. 821. Therefore, Ambrose’s testimony and Antonoff’s
testimony were consistent with respect to the negative reference she provided
for Pappas. See Tr. 690. We find that the Judge did not abuse his
discretion in crediting Ambrose’s account. 

For these reasons, we
conclude that the Judge did not err in crediting Ambrose’s hearing testimony.  Because the Judge found that Ambrose was
not motivated by Pappas’ protected activity when she provided the negative
employment reference, he found that the Secretary and Pappas failed to
establish that Ambrose’s conduct was part of the prima facie case of
discrimination. We decline to disturb this ruling.

2. Salzborn’s testimony

The Judge next considered whether
Riverside established an affirmative defense for the prima facie case of
discrimination concerning Salzborn’s negative reference of Pappas. 39 FMSHRC at

756. Riverside asserted that Salzborn, the plant
     manager, would have provided the same reference even if Pappas had not engaged
     in protected activities. [9]
     Id . The Secretary countered that Riverside’s proffered
     rationale was mere pretext.

The Judge credited Riverside’s
explanation; he found that Salzborn would have given a negative reference for
Pappas based on his unprotected activity alone. The Judge concluded that
Riverside’s proffered reasons were “plausible and had a basis in fact.” 39
FMSHRC at 757 (citing Turner , 33 FMSHRC at 1073) (“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 [the adverse action], or (3)
that they were insufficient to motivate [the adverse action].’”)
(emphasis included).  

Salzborn testified that he
provided the negative employment reference based on Pappas’ history of discipline
for behavioral problems. Tr. 633. The most recent disciplinary issue was still
fresh in his mind due to the recent settlement of Pappas’ related grievance and
the unusual step Espinosa (the Union’s International Representative) took in
directly addressing Pappas about his behavior in front of attendees at the
grievance meeting. Tr. 633, 646-47. In addition, Salzborn recalled Pappas’ 2010
suspension and removal from the shipping department, which he testified was the
result of Pappas’ behavior toward staff and customer truck drivers. Tr. 633. Furthermore,
Salzborn recalled that a department manager had complained that Pappas was
“causing problems” when he traveled off his assigned job site to other areas of
the mine in his truck. Tr. 634-35. As a result, Salzborn had ordered him to
cease use of his truck on mine property. Salzborn testified that despite this
warning, Pappas continued using his truck. Tr. 637-39. See supra at
2.

Pappas argues that the Judge
erred in crediting Salzborn’s testimony, arguing essentially that Salzborn’s
testimony was unreliable because he was motivated, in part, by animus against
Pappas’ prior engagement in protected activities.

The Judge found that although
Salzborn harbored some animosity toward Pappas’ prior engagement in protected
activity, Salzborn would have provided Pappas with a negative employment reference
to CalPortland even if Pappas had not engaged in protected activities. [10]
The Judge was persuaded to believe Salzborn because his asserted rationale —
Pappas’ history of discipline — was corroborated by the record.

We conclude that the Judge
acted within his discretion in crediting Salzborn’s testimony. We do not find
reason in the type of inconsistencies in the record or Salzborn’s testimony to
disturb the Judge’s findings. As a result, we affirm the Judge.

B.     
The claims against CalPortland

The Judge found that the
Secretary failed to establish a prima facie case for discrimination against
CalPortland. Although the Judge found Ambrose was a “de facto agent of
CalPortland” at the time she provided the negative references, 39 FMSHRC at 761,
he further found that she was not motivated by discriminatory animus. We have
previously explained that this finding was within the Judge’s discretion. See
supra at 9-11. We affirm the finding as it relates to CalPortland’s
liability.

We also affirm the Judge’s
holding that CalPortland was not liable for Salzborn’s conduct. The Secretary
did not claim that Salzborn was an agent of CalPortland. Moreover, the Judge explicitly
ruled that he was not an agent of CalPortland whose knowledge and animus could
be imputed to that operator. 39 FMSHRC at 760-62. Pappas has not sought review
of this finding. Thus, it was neither contended nor demonstrated that Salzborn
was an agent of CalPortland.

For these reasons, we affirm
the Judge’s finding that the Secretary failed to successfully establish a prima
facie case of discrimination against CalPortland. In the absence of a prima
facie case of discrimination, Pappas does not have a valid claim against
CalPortland.

III.

Conclusion

We conclude that although
Pappas did identify some inconsistencies in witness testimony, the Judge’s
decision demonstrates that he considered those inconsistencies and reconciled
witness testimony against the record evidence. Accordingly, the Judge acted
within his discretion as the finder of fact to make credibility determinations.
The Judge’s decision is hereby affirmed.

/s/
William I. Althen

William I.
Althen, Acting Chairman

/s/ Mary
Lu Jordan

Mary Lu
Jordan, Commissioner

/s/
Michael G. Young

Michael G. Young, Commissioner

Commissioner
Cohen, concurring in result,

I agree with the conclusions
of my colleagues, but write separately to address what I consider to be error
in the Judge’s analysis of Riverside Cement Company’s affirmative defense. [11]
I believe that the Judge’s finding that Oro Grande plant manager David
Salzborn, individually, would have supplied a negative reference based on
Jeffrey Pappas’s unprotected activity alone is not supported by substantial
evidence. Nevertheless, the issue before the Commission is whether Riverside
(not Salzborn or Ambrose individually) established an affirmative defense. As
explained below, I conclude that substantial evidence supports the Judge’s
ultimate conclusion that Riverside established an affirmative defense. Thus,
the Judge’s error in finding that Salzborn would have given a negative
reference based on unprotected activity alone is not outcome determinative.

A.    
The Prima Facie Case

I begin my analysis by
reviewing the Judge’s findings regarding Pappas’s prima facie case of
discrimination against Riverside. [12]
Here, the Judge relied on the discriminatory animus exhibited by Salzborn in
providing a negative job reference to CalPortland’s incoming plant manager Rich
Walters. As the Judge noted, Salzborn described Pappas as a “problematic
employee” and identified several disciplinary incidents involving Pappas
including his alleged “gross insubordination” for use of a company truck on
mine property. This incident had led to Pappas’s termination in 2014, his first
section 105(c) complaint to MSHA, and the settlement in which Pappas was
reinstated and his personnel record was expunged of all records relating to
discipline for use of the truck. 39 FMSHRC at 724, 740.

In finding animus on the part
of Salzborn, the Judge relied on Salzborn’s expression of anger directed at
Pappas at a safety meeting following an incident with the train at the mine’s
pack house. Id. at 723-24, 749. [13]
In addition, the Judge found that Salzborn’s mention to Walters of Pappas’s
discipline for use of the company truck represented animus, in that Salzborn
disregarded Riverside’s agreement to expunge all reference to the events that
led to Pappas’ prior termination. As the Judge stated, “Salzborn’s deliberate
disregard of a Commission order and settlement resolving Pappas’s section
105(c) claim is an expression of animus toward Pappas’s section 105(c) rights
that should not be tolerated.” Id. at 750. 

The Judge also relied on
Salzborn’s disparate treatment of Pappas as demonstrative of animus. Salzborn
had identified only one hourly employee to Walters as a problem – Pappas. Yet,
Jamie Ambrose testified that there were at least three other hourly employees
with “multiple or recent disciplinary issues” and numerous others with related
problems who she had identified to CalPortland. Id . at 753. These
disciplinary issues were significant enough for Ambrose to provide those
employees with negative references, as she did with Pappas. Furthermore, while
Salzborn testified that Pappas’s disciplinary problems were at the forefront of
his mind as he had recently attended Pappas’s grievance meeting, Salzborn had
also contemporaneously attended grievance meetings involving other miners with
disciplinary issues. Id . at 753 n.32. He did not give negative
recommendations about those other miners.

Although the Judge found that
Salzborn exhibited animus based on his anger at the safety meeting, the Judge
did not mention an even greater basis for Salzborn’s animus towards Pappas. A few
weeks after the train incident, Pappas approached an MSHA inspector at the
mine, and reported the incident. After speaking with Pappas, the inspector began
an investigation of the train incident, which resulted in the issuance of
citations to Riverside, the temporary closure of the shipping facility, and the
mandatory installation of an additional lock on the rail tracks. Id . at

724. Shortly after receiving these citations, Salzborn restricted Pappas’
     ability to use the company truck. When Salzborn discovered that Pappas used the
     truck again, he terminated Pappas for “gross insubordination.” Id .; Tr.
725. In settling the resulting section 105(c) discrimination complaint,
     Riverside was required to pay a $5,000 penalty in addition to reinstating
     Pappas with back pay and expunging his personnel file of related records.

The clear implication of the
settlement was that Salzborn’s firing of Pappas for “gross insubordination” was
a pretext for unlawful discrimination. The acceptance of the settlement by
Riverside amounted to a rebuke of Salzborn’s management of the plant. The
evidence certainly supports the Judge’s conclusion that Salzborn’s statement to
Walters about Pappas was in part motivated by animus against his protected
activity.

B.     
The Affirmative Defense –
Salzborn

In evaluating whether
Riverside established an affirmative defense, the Judge expressly found that
Salzborn would have provided Pappas with a negative reference based on Pappas’
unprotected activities alone.  39 FMSHRC at 758. Salzborn testified about three
disciplinary incidents that formed the basis of his negative reference – the
most recent incident involving Pappas’s dispute with Stacy Portis, a prior 2010
suspension, and the aforementioned truck incident. Tr. 638-39.

It is the Commission’s task
to review the Judge’s finding to determine if it supported by substantial
evidence. When reviewing a Judge’s factual determinations, the Commission is
bound by the terms of the Mine Act to apply the substantial evidence test. 30
U.S.C.          § 823(d)(2)(A)(ii)(I). In reviewing the whole record, we must
consider anything in the record that “fairly detracts” from the weight of the
evidence. Midwest Material Co ., 19 FMSHRC 30, 34 n.5 (Jan. 1997)
(quoting Universal Camera Corp . v. NLRB , 340 U.S. 474, 488
(1951)).

I
find that the Judge erred in failing to consider that Salzborn’s asserted
rationale for the negative reference included, in part, events that Riverside
was ordered to expunge from Pappas’ disciplinary history. 39 FMSHRC at 756-57. One
cannot rely on an event that the Commission had previously ordered to be
expunged from a miner’s disciplinary history in a subsequent case to establish
that the miner had a history of disciplinary issues.

The Judge further erred when
he failed to consider his previous finding that Salzborn had disparately
treated Pappas, see id. , when he analyzed Riverside’s affirmative
defense. Specifically, in the context of the affirmative defense the Judge held
that there was “very little evidence of disparate treatment” and “the
Secretary’s case lacked detailed comparisons between employees who were and
were not recommended.” Id . at 757. However, as noted, the Judge had
already found disparate treatment of Pappas on the part of Salzborn. Ambrose
provided negative references for multiple employees with disciplinary issues,
but Salzborn singled out Pappas. It was Riverside’s burden to establish an
affirmative defense, not the Secretary’s. See Pasula ,    2 FMSHRC
at 2799; Robinette , 3 FMSHRC at 817-18. Accordingly, the fact that the
Secretary did not provide a detailed comparison of employees who were and were
not recommended is irrelevant.

For these reasons I find that
evidence in the record as well as the Judge’s own findings detract from his
conclusion that Salzborn would have given a negative recommendation about
Pappas based on unprotected activity alone.

C.    
The Affirmative Defense –
Riverside

However,
whether Salzborn would have given a negative recommendation based on Pappas’
unprotected activity alone is not determinative. The question is whether Riverside
would have provided a negative recommendation to CalPortland about Pappas
based on his unprotected activity alone. Accordingly, the negative reference
supplied by Ambrose is also relevant to the establishment of an affirmative
defense. To analyze this issue, we can look at the relative weight of the
statements of Salzborn and Ambrose.

CalPortland
had established a system for the evaluation and hiring of Riverside’s hourly
employees. Betsy Lamb, CalPortland’s vice president of organizational planning
and development, made recommendations to Walters based on the job applications
and interviews, with additional input provided by Steve Antonoff’s summary of
Ambrose’s recommendations. Walters accepted all of Lamb’s recommendations. Lamb
testified that she did not recommend Pappas because his application did not
demonstrate that he was progressing as an employee, and because she believed
that he answered the interview questions poorly. 39 FMSHRC at 731-32.

Although Ambrose’s
recommendation about Pappas had some significance to Lamb’s decision, there is
insufficient evidence in the record to demonstrate any effect by Salzborn’s
statement. Salzborn’s negative reference was made to Walters, who was not
called as a witness. The only evidence from Walters is the MSHA investigator’s interview
summary, Gov. Ex. 22, and the investigator’s hearsay testimony. According to
the investigator, Walters said that he did not personally make any decisions
about hourly employees; he left that up to Lamb. Walters acknowledged talking
with Salzborn, and that Salzborn had told him that Pappas was not a good
employee. Although Salzborn’s statement made Pappas a “No”, Pappas was already
on the “No” list compiled by Human Resources. Id. Thus, since Walters
followed all of Lamb’s recommendations for the hiring of hourly employees, and
since Lamb did not recommend that Pappas be hired, Salzborn’s negative
reference was ultimately inconsequential.

Accordingly, I believe that the
relative weight of the recommendations by Salzborn and Ambrose support the
Judge’s conclusion that Riverside established an affirmative defense.
Riverside’s negative reference of Pappas would have been made based on
unprotected activity alone.

Hence, I concur with the
majority that the Judge’s decision should be affirmed in result.  

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

[1]
Section 105(c)(1), 30 U.S.C. § 815(c)(1), provides:

No person shall discharge or in any manner
discriminate against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the statutory rights of any miner .
. . because such miner . . . has filed or made a complaint under or related to
this Act, including a complaint notifying the operator or the operator’s agent
. . . of an alleged danger or safety or health violation in a coal or other
mine, or because such miner . . . has instituted or caused to be instituted any
proceeding under or related to this Act . . . .

[2]
CalPortland used this process in lieu of
reviewing Riverside’s employment files.

[3] The Secretary
also filed an application for temporary reinstatement pursuant to section 105(c)(2).
A Commission Judge determined that the complaint was not frivolously brought
and granted Pappas temporary reinstatement. Sec’y of Labor on behalf of
Pappas v. CalPortland Co. , 38 FMSHRC 53 (Jan. 2016) (ALJ). The Commission
affirmed. Sec’y of Labor on behalf of Pappas v. CalPortland Co. , 38
FMSHRC 137 (Feb. 2016).

The D.C. Circuit
reversed the Commission, vacated the Judge’s order, and determined that Pappas,
as an applicant for employment, was not eligible for temporary reinstatement. CalPortland
Co. v. FMSHRC , 839
F.3d 1153 (D.C. Cir. 2016) (concluding that Pappas was not a miner at
CalPortland, but instead was an an applicant for employment and accordingly was
not eligible for the temporary reinstatement remedy).

[4] Both Ambrose
and Salzborn knew of Pappas’ prior protected activities: Salzborn was the plant
manager who terminated Pappas in 2014, and Pappas complained to Ambrose about
harassment following his reinstatement. Id . at 741.

[5] An adverse
action is “an act of commission or omission by the operator subjecting the
affected miner to discipline or a detriment in his employment relationship.” Sec’y
of Labor on behalf of Jenkins v. Hecla-Day Mines Corp ., 6 FMSHRC 1842,
1847-48 (Aug. 1984).

[6] In evaluating
whether a causal relationship between Pappas’ protected activity and
Riverside’s action existed, the Judge considered the four Chacon
factors: (1) knowledge of the protected activity; (2) hostility or animus
toward the protected activity; (3) coincidence in time between the protected
activity and the adverse action; and (4) disparate treatment of the
complainant. 39 FMSHRC at 741 (citing Sec’y of Labor on behalf of Chacon ,
3 FMSHRC 2508, 2510 (Nov. 1981)).

[7] The Judge noted
that what Pappas perceived to be harassment was not clearly related to his
protected activity, and instead may have been reasonably interpreted by others
to be “banter” due to the topics at issue and prior relationships of the
parties. Id . at 744.

[8]
On review, CalPortland argues that Pappas’ pro
se petition for discretionary review failed to comply with the statutory
requirements set forth at 30 U.S.C. § 823(d)(2)(A).

Our
practice has been to liberally construe the filings of pro se litigants.
See Rostosky Coal Co ., 21 FMSHRC 1071 (Oct. 1999); see also Original
Sixteen to One Mine, Inc ., 23 FMSHRC 1217 (Nov. 2001). We find that Pappas
sufficiently identifies and supports assignments of error in his petition;
Pappas challenges the Judge’s credibility determinations and cites evidence in
the record in support of his allegations. Accordingly, we review these issues.

[9] Salzborn
retired from Riverside at the end of 2014, and then returned as interim plant
manager in 2015 to assist in the transfer of assets to CalPortland. 

[10] The Commission
has recognized that, because the Judge “has an opportunity to hear the
testimony and view the witnesses[,] he [or she] is ordinarily in the best
position to make a credibility determination.” In re: Contests of Respirable
Dust Sample Alteration Citations ,    17 FMSHRC 1819, 1878 (Nov. 1995) (quoting
Ona Corp . v. NLRB , 729 F.2d 713, 719 (11th Cir. 1984)), aff'd
sub nom . Sec’y of Labor v. Keystone Coal Mining Corp ., 151 F.3d 1096
(D.C. Cir. 1998).

[11]
I agree with my colleagues’ conclusion that the
Judge did not err in his findings that the Secretary and Pappas failed to
establish a prima facie case with regard to alleged discrimination by other
Riverside employees including Jamie Ambrose, Riverside’s human resources manager,
and by CalPortland Company.

[12]
Like the Judge and my colleagues, I apply the
Commission’s analytic framework for discrimination cases arising under section
105(c) of the Mine Act, 30 U.S.C. § 815(c), set forth in Sec’y on behalf of
Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d
on other grounds 663 F.2d 1211 (3d Cir. 1981) and Sec’y on behalf of
Robinette v. United Castle Coal Co. , 3 FMSHRC 803, 817-18 (Apr. 1981). Under
the Pasula-Robinette test, it is first determined whether the
complainant miner has made out a prima facie case of discrimination by showing
that he engaged in protected activity, and that there was adverse action
motivated in any part by the protected activity. If the complainant makes out a
prima facie case, the operator may raise an affirmative defense by establishing
that it was also motivated by the miner’s unprotected activity, and would have
taken the adverse action based on the unprotected activity alone.  

[13]
In December 2013, Pappas was working with two
other miners replacing filters on the chutes which loaded rail cars at the
mine’s pack house. There were three tracks at that location, and the crew was
working on manlifts elevated above two of the tracks. A train of cars emerged,
backing up on the one track which fed the three tracks, heading for the
location where the crew was. There was no lock on that track, and no miner
stationed as a lookout at the back of the train, and thus no way to notify the
locomotive operator to stop because there were other miners working on the
tracks. Pappas’s crew were not able to move out of the train’s way, but
fortunately the train ended up coming down the third track and stopping, so no
one was injured. Pappas felt that his life and the lives of his co-workers had
been endangered by the moving train. 39 FMSHRC at 723.