Thomas Lee Kreimier v. Coeur Alaska, Incorporated (ALJ decision, November 29, 2017)

Read the official release (fmshrc.gov)

Plain-English summary

Thomas Kreimier reported that a supervisor instructed another worker to cross a locked gate to restart a crusher, and Coeur Alaska fired Kreimier about six weeks later. Kreimier alleged retaliation, while the company said he was terminated for sleeping in the mill control room during two consecutive shifts and failing to respond to radio calls for a blast clearance. Judge Jacqueline R. Bulluck found that the report was protected and that timing and management knowledge established an initial discrimination case. She nevertheless credited eyewitnesses, a photograph, missed radio calls, and the company's consistent history of firing employees found sleeping on duty. Because Kreimier did not prove that this explanation was pretextual or that comparable employees were treated more favorably, the Judge dismissed the complaint.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)-(3)
• Outcome: Kreimier's discrimination complaint was dismissed.
• Key point: Protected safety reporting and close timing did not establish retaliation when credible evidence showed termination for sleeping in a safety-critical control-room position.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,

NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

THOMAS LEE

KREIMIER,                               :                 DISCRIMINATION

PROCEEDING

Complainant                                  :                

:                 Docket

No. WEST 2017-80-DM

:                 WE-MD-2016-12

v.                                                   :                

:                

:

COEUR

ALASKA, INCORPORATED,            :                 Kensington Mine

Respondent                                   :                 Mine

ID: 50-01544

DECISION

Appearances:   Thomas

Lee Kreimier, P.O. Box 90, Hot Sulphur Springs, Colorado, pro se ;

Donna

Pryor, Esq., Husch Blackwell LLP, Denver, Colorado, for Respondent.

Before:                        Judge

Bulluck

This

case is before me upon a Complaint of Discrimination (“Complaint”) filed by

Thomas Lee Kreimier against Coeur Alaska, Incorporated (“Coeur Alaska”), pursuant

to section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30

U.S.C. § 815(c). Kreimier contends that Coeur Alaska unlawfully discharged him

on May 9, 2016, in retaliation for having reported a safety breach to management.

Coeur Alaska denies that it discriminated against Kreimier, and asserts that he

was discharged for sleeping on the job and ignoring his job responsibilities.

On

July 11, 2016, Kreimier filed the Complaint with the Department of Labor’s Mine

Safety and Health Administration (“MSHA”) pursuant to section 105(c)(2) of the

Act, 30 U.S.C. § 815(c)(2). [1]

In a letter to Kreimier dated September 28, 2016, MSHA notified him that, based

on its investigation of the allegations contained in his Complaint, it had

concluded that a violation of section 105(c) had not occurred, and advised him

of his right to proceed on his own. Kreimier, pro se , initiated this

proceeding before the Commission on November 2, 2016, under section 105(c)(3)

of the Act, 30 U.S.C. § 815(c)(3). [2]

A

hearing was held in Juneau, Alaska. Kreimier testified on his own behalf, Coeur

Alaska called six witnesses to testify, and the parties filed post-hearing

briefs. For the reasons set forth below, I conclude that Kreimier has

established a prima facie case of discrimination, that Coeur Alaska has

successfully rebutted Kreimier’s prima facie case, and that, ultimately,

Kreimier has failed to prove that he was terminated, in any part, for his

protected activity.

I.          Factual

Background

Coeur Alaska

operates the Kensington Mine, an underground gold mine employing approximately

320 miners in 2016, operating on 12-hour shifts, 7 days a week, and accessible

from Juneau, Alaska by a 45-mile commute by boat and bus. Tr. 33-34, 136, 192. The

mining process at Kensington begins underground with the extraction of ore,

which is hauled to the surface and processed into pyrite concentrate, then sold

to other plants for gold extraction.    Tr. 136-37.

With

over 36 years of mining experience, Kreimier was hired by Coeur Alaska on May

17, 2010 as a mill operator, and two years later became a mill control operator/lead

man, a position he held until May 9, 2016. Tr. 9, 24-28; Ex. C-4 at 5. He

worked as an hourly employee according to a five-week cycle: two weeks on the

12-hour day shift, followed by one week off, then two weeks on the 12-hour

night shift. Tr. 33. Kreimier’s office, the control room of the mill building, overlooked

the entire pyrite concentration process. Tr. 29-30. His core duties included monitoring

two radios tuned to several frequencies and seven computers displaying equipment

and processes that he was able to manipulate, as needed; he also had oversight

responsibility for five to six mill workers in the absence of management on

duty.    Tr. 30-33, 140-41, 205, 231. More broadly, Kreimier served as the

communications hub for the mine, a capacity which included responsibilities

during emergencies such as coordinating medical care and notifying underground

miners to evacuate. Tr. 141, 199.

Kreimier’s

immediate supervisors alternated between Dennis Sullivan, Scott Fisher, and Adam

Finkbonner, depending upon the shift; his second-line supervisor was senior

supervisor of operations Jody Karasch; his third-line supervisor was process superintendent

Roy Lee; and, at the top of the hierarchy was vice-president and general

manager Wayne Zigarlick, who oversaw the maintenance, safety, environmental,

human resources, and process management departments. Tr. 35-37, 43, 135, 192;

Ex. C-4 at 5. 

The

circumstances underpinning Kreimier’s Complaint emanated from an event occurring

during the day shift on March 23, 2016, when Karasch and Kreimier were on duty

and the ball crusher could not be started. Tr. 38-39; Ex. C-4 at 13. Karasch verbally

instructed Coeur Alaska employee James Fortune to jump over a locked, three-foot-high

gate to retrieve a key that, when inserted in the main circuit breaker, would

start the crusher. Tr. 39-42. Fortune complied, and the crusher soon resumed

normal operation. Tr. 42. The next day, Fortune reported the ball-crusher

incident to Roy Lee, and quit the job for reasons unclear from the record, but,

by reasonable inference, reasons that involved some degree of animosity between

Fortune and Karasch. Tr. 144, 184-85. Lee suspended Karasch with pay and,

pending a three-week internal investigation that concluded in a finding that no

safety breach had occurred, Karasch was returned to duty. Tr. 70, 144-45, 185. A

few days after Fortune had reported the ball-crusher incident, Kreimier also

reported it to Lee, and learned of Karasch’s suspension and the investigation

at that time. Tr. 44-45, 47, 184; Ex. C-4 at 8. 

At

some point during Karasch’s suspension, Kreimier and process trainer Dustin

Peltier got into a verbal altercation concerning a work-related matter

unrelated to the ball-crusher incident, in the presence of maintenance

supervisor Mike Hegna and the chief lab chemist.    Tr. 56-60, 66, 234-35. On

March 26, Peltier reported the incident by email to Lee, complaining that

Kreimier had been disrespectful to him and Hegna. Tr. 235; Ex. R-2 at 6. Subsequently,

on March 27, geologist Theresa Jeske lodged another complaint against Kreimier,

also alleging coworker disrespect. Tr. 146-47; Ex. R-2 at 5. Based on these allegations

and prior incidents of disrespectful conduct in his personnel file, Kreimier

was issued a Final Written Warning, which put him on notice that any further

offenses might result in his termination. Tr. 146-48; Ex. R-2 at 4.

During

the day shift on May 8, Coeur Alaska’s blasting contractor, Redpath, in the

process of developing a new portal, made several routine, but unsuccessful, attempts

by radio to contact Kreimier so that he could give the “all clear” for an

imminent blast. Tr. 141-43; Ex. R-2 at 2. Peltier, who was also monitoring the

radio station when Redpath was attempting to contact Kreimier, walked over to

the mill control room and, as a result of observing Kreimier apparently

sleeping at the computer monitors, photographed him with his mobile phone. Tr.

150, 237-40; Ex. R-1; Ex. R-2 at 2. On the following shift, May 9, Wayne Zigarlick,

enroute to a meeting in the mill building and passing by the control room, also

observed Kreimier apparently asleep, and reported the incident to Lee. Tr. 154-55,

194-95. Later that day, Zigarlick, Lee, and human resources manager Christina

Gilbert met to discuss the matter of Kreimier sleeping at his desk and, in

accord with Lee and Gilbert’s recommendations, Zigarlick decided to terminate

Kreimier, effective immediately. Tr. 83-85, 155-56, 193, 196, 216-19; Ex. R-2

at 1.

II.        Findings

of Fact and Conclusions of Law

In

order to establish a prima facie case of discrimination under section

105(c) of the Act, a complainant must prove by a preponderance of the evidence

“(1) that he engaged in a protected

activity,

and (2) that the adverse action was motivated in any part by the protected

activity.” [3]

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC

2786, 2799-2800 (Oct. 1980), rev’d on other grounds sum nom Consolidation

Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir. 1981). The Commission has

noted that “direct evidence of motivation is rarely encountered; more

typically, the only available evidence is indirect.” Sec’y of Labor on

behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d

on other grounds sub nom Donovan v. Phelps Dodge Corp. , 709 F.2d 86 (D.C.

Cir. 1983). Circumstantial evidence may include: 1) coincidence in time between

the protected activity and the adverse action; 2) knowledge of the protected

activity; 3) hostility or animus toward the protected activity; and 4)

disparate treatment. The more that hostility or animus is specifically directed

toward the protected activity, the more probative it is of discriminatory

intent. Id. at 2510. The Commission has also held that an “operator’s

knowledge of the miner’s protected activity is probably the single most

important aspect of a circumstantial case” and that “knowledge . . . [may] be

proved by circumstantial evidence and reasonable inferences.” Sec’y of Labor

on behalf of Baier v. Durango Gravel , 21 FMSHRC 953, 957 (Sept. 1999).

Once

the complainant has established a prima facie case, “[t]he operator may

attempt to rebut [it] by showing either that the complainant did not engage in

protected activity or that the adverse action was in no part motivated by

protected activity.” Sec’y of Labor on behalf of Robinette v. United Castle

Coal Co. , 3 FMSHRC 803, 818 n.20 (Apr. 1981). The operator may also

affirmatively defend its actions by proving, by a preponderance of the

evidence, that it was motivated by both the miner’s protected and unprotected

activities, and would have taken the adverse action for the unprotected

activity alone. Id. at 818. The Commission has explained that an

affirmative defense should not be “examined superficially or be approved

automatically once offered.” Haro v. Magma Copper Co. , 4 FMSHRC 1935,

1938 (Nov. 1982). In reviewing affirmative defenses, the judge must “determine

whether they are credible and, if so, whether they would have motivated the

particular operator as claimed.” Bradley v. Belva Coal Co. , 4 FMSHRC

982, 993 (June 1982). Indicia of legitimate non-discriminatory reasons for an

employer’s adverse action include evidence of the miner’s unsatisfactory work

record, prior warnings to the miner, past discipline consistent with that meted

out to the complainant, and personnel rules or practices forbidding the conduct

in question. Id.

At

this stage, the complainant has the opportunity to demonstrate that the operator’s

non-discriminatory reason for its actions is a mere pretext for discrimination.

Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc. , 12 FMSHRC

1521, 1534 (Aug. 1990). 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.” Id. However,

the Commission has also stated that “[its] judges should not substitute for the

operator’s business judgement [their] views on ‘good’ business practice.” Chacon ,

3 FMSHRC at 2516. Finally, the Commission has noted that the ultimate burden of

proving discrimination always remains with the complainant. Robinette , 3

FMSHRC at 818 n.20.

A.        Prima

Facie Case

Kreimier

contends that he engaged in protected activity when he reported the ball-crusher

incident to Roy Lee. [4]

Tr. 69. Coeur Alaska counters that Kreimier’s report is not protected because he

reported the incident only after Lee initiated a conversation with him, Lee already

knew of the incident from Fortune’s report, and the investigation had already begun.

Resp’t   Br. at 11-13. Regardless of who initiated the dialogue between

Kreimier and Lee, or who first reported the incident to Lee triggering the

investigation, it is uncontested that Kreimier did report the incident and,

while his report may be redundant, it is, nonetheless, protected by the Act. Sec’y

of Labor on behalf of Riordan v. Knox Creek Coal Corp. , 38 FMSHRC

1914, 1922 (Aug. 2016) (citing Sec’y of Labor on behalf of Jones v. Kingston

Mining, Inc. , 37 FMSHRC 2519, 2523 n.3 (Nov. 2015)) (“[a]lthough other

miners and foremen may have raised similar concerns, [a miner’s] safety

complaints are no less protected as a result.”). Therefore, Kreimier has

established that he engaged in protected activity when he reported Karasch to

Lee.

It

is clear that Kreimier’s termination constitutes an adverse action and, as is

most often the case, the circumstantial evidence involved in Kreimier’s discharge

must be examined in order to determine whether Coeur Alaska was motivated, in

any part, by his protected activity.

The

Commission has found that a discharge occurring four months after protected

activity is sufficiently coincidental in time to support a finding of

discriminatory motive. Riordan , 38 FMSHRC at 1924; Pero v.

Cyprus Plateau Mining Corp. , 22 FMSHRC 1361, 1365 (Dec. 2000) (finding that

a four-month gap between protected activity and termination was probative of a

discriminatory nexus). In this case, the temporal nexus is even stronger, since

Coeur Alaska discharged Kreimier less than seven weeks after he had reported

Karasch and the ball-mill incident.   

Zigarlick’s

decision to terminate Kreimier was the result of consultation with Lee and

Gilbert. By Lee’s own account, Kreimier reported Karasch’s alleged safety

breach directly to him, and Lee recommended Kreimier’s termination to Zigarlick.

Tr. 155-56, 196. Since Lee’s input obviously influenced Zigarlick, I find it

reasonable to impute Lee’s knowledge of Kreimier’s protected activity to

Zigarlick. See Turner v. Nat’l Cement Co. of California , 33 FMSHRC 1059,

1068 (May 2011) (finding that a supervisor’s knowledge of an employee’s

protected activity can be imputed to an upper-level decision-maker if the

supervisor influenced the decision-maker’s termination decision); Metric Constructors,

Inc. , 6 FMSHRC 226 (Feb. 1984). Accordingly, I find that Kreimier has

established a prima facie case based on the temporal nexus between his

safety complaint and termination, and Coeur Alaska’s knowledge of his protected

activity.

B.        Coeur

Alaska’s Rebuttal of Kreimier’s Prima Facie Case

Coeur Alaska contends that it terminated

Kreimier for violating its policy prohibiting sleeping on the job, an action

that it would have taken even if Kreimier had no prior disciplinary record, as demonstrated

by its termination of other employees who had clean disciplinary records, for

sleeping on duty. Resp’t Br. at 13-14, 17. In the alternative, it argues, even

if it has failed to establish that it was in no way motivated by Kreimier’s

protected activity, it would have terminated Kreimier solely for sleeping on

the job. Resp’t. Br. at 22.

Zigarlick,

Lee, and Gilbert all testified that Kreimier was fired because he had been

found sleeping on the job. Tr. 156, 196, 219-20. Lee testified that as a result

of Peltier informing him that he had observed Kreimier asleep in the control

room and showing him a photograph of Kreimier appearing to be asleep, he

immediately initiated an investigation and solicited statements from Redpath

and Dennis Sullivan. Tr. 152, 167. It was during the next shift, Lee explained,

in the midst of his investigation, that Zigarlick reported to him that, while

walking past the control room, he had also witnessed Kreimier sleeping. Tr.

154, 194. Shortly thereafter, Lee testified, he received the written statements

of Redpath and Sullivan, which corroborated Peltier’s account that Kreimier had

been unresponsive to Redpath’s radio calls. Tr. 155-56;   Ex. R-2 at 2. Consequently,

Lee stated, he recommended that Zigarlick terminate Kreimier.  Tr. 156.

Zigarlick,

Lee, and Gilbert also testified to Coeur Alaska’s long-standing policy prohibiting

“[s]leeping or lying down on duty or otherwise neglecting the job,” and Gilbert

stated that it was in effect in May of 2016 and is included in the Employee Handbook.

Tr. 156, 193, 208; Ex. R-8. Gilbert noted that Kreimier had certified, by his

signature in 2010 and 2016, that he had received and read the Handbook. Tr. 210-11;

Ex. R-4 at 1, 4. She further testified that Coeur Alaska follows a progressive

discipline policy, i.e., disciplining miners according to a sliding scale of

severity ranging from verbal coaching to termination and that, for sufficiently

egregious misconduct, management may elect to skip intermediate steps to

terminate a miner lacking prior discipline. Tr. 208-09; Ex. R-8 at 4-5.

Lee

recalled that he and former human resources manager Terry Lloyd had spoken to Kreimier

in 2014 about Kreimier’s disrespectful treatment of his coworkers, and noted

that Kreimier’s personnel file had contained two instances of verbal coaching. Tr.

146-47, 156;   Ex. R-2 at 7-8; Ex. R-6. In his opinion, Kreimier’s behavior had

improved after he had been disciplined, but only until he received emails from

Peltier and Theresa Jeske on March 26 and 27 of 2016, respectively, complaining

about unrelated instances in which Kreimier had treated them disrespectfully. Tr.

146-47; Ex. R-2 at 5-6. These accounts of inappropriate conduct, Lee stated,

formed the basis of the Final Written Warning issued to Kreimier on March 28. Tr.

147-48;  Ex. R-2 at 4.

Lee

testified that Coeur Alaska terminated Cody Cowart for sleeping on the job, Shawn

Trulove for sleeping on the job and defacing company property, and Dennis

Lorance for failing to report Cowart, whom he knew to be sleeping on duty. Tr.

158-60. Gilbert testified that Coeur Alaska fired Nathan Lipski and Corey Piper,

also for sleeping on duty. Tr. 211-13. According to Gilbert, when asked about Trulove,

Lipski, and Piper, all had clean disciplinary records.    Tr. 213-14; R-7. In

Kreimier’s case, Gilbert testified credibly, while she considered Kreimier’s

prior disciplines, she would have recommended his termination had his record

been clean because sleeping on the job is a terminable offense. Tr. 219-20.

Based

on the strength of the credible evidence of Kreimier sleeping on the job, as

well as Coeur Alaska’s prohibition against sleeping on duty and evidence of its

uniform enforcement of that policy, I find that Coeur Alaska has successfully

rebutted Kreimier’s prima facie case.

C.        Pretext

Kreimier argues, in essence, that Coeur

Alaska’s stated justification for terminating him is pretextual based on a

conspiracy between Peltier, Karasch, and Lee. In advancing this theory,

Kreimier argues that the operator lacks actual proof that he was sleeping, and that

he was subjected to disparate treatment. Comp. Br. at 1-2.

Kreimier contends that Lee, Karasch, and

Peltier were friends, and that they colluded to terminate him because he had

reported Karasch’s safety breach. Tr. 84; Comp. Br. at 2. Lee and Peltier, the

two who testified, confirmed their friendship outside of the job. Tr. 174, 245.

Kreimier’s contention includes the suggestion that Peltier falsely accused him

of sleeping on duty, and that the false accusation that he had been

disrespectful during their heated discussion is responsible for the trumped-up

Final Written Warning. Peltier’s motivation in reporting Kreimier for sleeping

or being disrespectful, or his animus toward Kreimier, is inconsequential to

this analysis because Peltier is not a supervisor, had no authority to affect

Kreimier’s employment, and had no involvement in the decision to terminate him.

Also, it is noteworthy that Kreimier’s contention that Peltier was out to get

him fails to account for the overwhelming evidence of Kreimier sleeping, or the

fact that Jeske’s similar complaint formed the basis, in equal part, of the

Final Written Warning. There is also no indication that Karasch was involved in

reporting Kreimier for sleeping on either shift, or in the circumstances giving

rise to the Final Written Warning, or in the decision to fire Kreimier. Finally,

the record is simply bereft of any evidence that Karasch’s friendship with Lee

motivated Lee to recommend Kreimier’s discharge, or otherwise conspire to get

rid of Kreimier in retaliation for reporting the ball-crusher incident.

Kreimier points out that Peltier’s

photograph does not show that his eyes are closed, and that no one entered the

mill control room to check whether he was sleeping or whether the radio was

tuned to channel 7, the frequency on which Redpath communicates with mill

control. Comp. Br. at 2. The photograph depicts Kreimier seated at his work

station, facing away from the computers with his head lowered and resting in

the palm of his hand; indeed, it does not show his eyes or the radio. Ex. R-1

at 2. However, Peltier testified credibly that he saw Kreimier’s eyes closed

when he took the photograph from his view through the window, and that when he

entered the control room thereafter, Kreimier “came about.” Tr. 238-39. In

addition, according to Peltier and health and safety manager Jeff Murray,

Kreimier is required to monitor channel 7. Tr. 205, 231. It is notable that Peltier’s

eyewitness account is consistent with Redpath’s and Sullivan’s independent

reports of Kreimier’s unresponsiveness, and also Zigarlick’s observation of Kreimier

sleeping on the next shift. Even Kreimier acknowledged that he may have “appeared”

to be asleep in the photograph. Tr. 120. Accordingly, based on eyewitness

accounts, the photograph, and the internal investigation, I find that Kreimier

was sleeping and, therefore, that it was reasonable for Coeur Alaska to believe

that he had violated its policy, which, incidentally, also prohibits

“neglecting the job.”

Finally, Kreimier asserts that he was

treated more harshly than similarly situated employees under similar

circumstances, by referencing employees who were not disciplined for sleeping

on the job. Comp. Br. at 2. For example, he testified that he had seen Karasch

and Lucas Johnson asleep, that Karasch had told him that he had awakened Trevor

Sutcliffe multiple times, that James Fortune had been caught sleeping, that he

had heard the crew tease Sunia Klapi for falling asleep, and that these

employees were not disciplined. Tr. 114-18, 164. However, Kreimier’s self-serving

testimony is deeply flawed because it lacks corroborative evidence, either documentary

or testimonial, considering that he called no witnesses to testify and

introduced no probative exhibits. In fact, Kreimier only referenced these comparison

employees as an afterthought at the end of his testimony, pursuant to questioning

from the bench about the bare allegations in his Complaint. He even conceded that

he did not report the alleged sleeping incidents to management, nor was he able

to establish that they had been reported by anyone else. Tr. 114-18. The

evidence, on the other hand, makes clear that where Coeur Alaska has found

employees asleep at the switch, it has terminated them.  

Having reviewed all the evidence, the

record in its entirety shows that Kreimier was sleeping while on duty during two

consecutive shifts, conduct that the operator has repeatedly found sufficiently

egregious to merit immediate termination, notwithstanding its progressive

discipline policy. It is clear that Coeur Alaska was motivated by Kreimier’s

sleeping on the job, alone, and that Kreimier has failed to show that its reasons

were pretextual, or that his reporting of Karasch’s alleged safety breach in

any way motivated his termination.

ORDER

ACCORDINGLY , it is ORDERED

that the Complaint of Discrimination of Thomas Lee Kreimier against Coeur

Alaska, Incorporated, is, hereby, DISMISSED .

/s/

Jacqueline R. Bulluck

Jacqueline

R. Bulluck

Administrative

Law Judge

Distribution:

Thomas Lee Kreimier, P.O. Box 90, Hot

Sulphur Springs, CO 80451

Donna Vetrano Pryor, Esq., Husch

Blackwell, LLP, 1801 Wewatta, Suite 1000, Denver, CO 80202

/tcp

[1] 30 U.S.C. §

815(c)(2) states, in relevant part:

Any miner or

applicant for employment or representative of miners who believes that he has

been discharged, interfered with, or otherwise discriminated against by any

person in violation of this subsection may, within 60 days after such violation

occurs, file a complaint with the Secretary [of Labor] alleging such

discrimination. Upon receipt of such complaint, the Secretary shall forward a

copy of the complaint to the respondent and shall cause such investigation to

be made as he deems appropriate.

[2] 30 U.S.C. §

815(c)(3) states, in relevant part:

If the

Secretary, upon investigation, determines that the provisions of this

subsection have not been violated, the complainant shall have the right, within

30 days of notice of the Secretary’s determination, to file an action in his

own behalf before the Commission. . . .”

[3] 30 U.S.C. §

815(c)(1) states, in relevant part:

No person shall discharge or in any

manner discriminate . . . against . . . any miner . . . because such miner . .

. has filed or made a complaint under or related to this chapter, 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

of the exercise by such miner . . . on behalf of himself or others of any

statutory right afforded by this chapter.

[4] At hearing,

Kreimier hinted that he considered the heated discussion in Peltier’s office to

be protected also, but ultimately retreated from this contention. Tr. 67, 69.