Secretary of Labor obo Anthony Vega v. Syar Industries, Inc. (ALJ decision, January 11, 2018)

Read the official release (fmshrc.gov)

Plain-English summary

Anthony Vega raised safety concerns about smoke created when workers cut hydraulic hoses and about a near miss on a quarry haul road. Syar Industries later terminated him for writing complimentary messages on coworkers' pay envelopes and signing some with a quarry manager's initials. Judge L. Zane Gill found a non-frivolous discrimination claim based on evidence of management knowledge, the timing of the termination, possible hostility toward Vega's safety activity, and Vega's allegation that other workers received a warning he did not receive. The Judge did not decide whether Syar's stated reason was pretextual because credibility and the ultimate merits belonged in the later discrimination proceeding. He ordered Vega immediately reinstated to his former job with his prior pay, overtime, and benefits.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Anthony Vega was ordered immediately reinstated with his former pay, overtime, and benefits while the discrimination case continued.
• Key point: Supporting evidence of protected activity, adverse action, and a possible nexus is enough for temporary reinstatement even when the operator offers a competing misconduct explanation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY

AND HEALTH REVIEW COMMISSION

OFFICE OF

ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA

AVE., N.W., SUITE 520N

WASHINGTON, DC

20004-1710

TELEPHONE:

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

January 11, 2018

SECRETARY

OF LABOR,

MINE

SAFETY AND HEALTH   

ADMINISTRATION

(MSHA),

on

behalf of ANTHONY VEGA,

Complainant,

v.

SYAR

INDUSTRIES, INC.,

Respondent.

TEMPORARY

REINSTATEMENT PROCEEDING

Docket

No. WEST 2018-0135-DM

MSHA

Case No: WE MD 18-02

Mine:

Napa Quarry

Mine

ID: 04-00023

DECISION AND

ORDER TEMPORARILY REINSTATING ANTHONY VEGA

Appearances:               Abigail

G. Daquiz, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington,

for Complainant;

Bradley B. Johnson, Esq., Harrison,

Temblador, Hungerford & Johnson LLP, Sacramento, California, for

Respondent.

Before:                                    Judge

L. Zane Gill

This case involves an Application for

Temporary Reinstatement filed on December 11, 2017, by the Secretary of Labor

(“Secretary”) on behalf of Anthony Vega (“Vega” or “Complainant”), pursuant to

Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act” or

“Mine Act”), 30 U.S.C. § 815(c)(2), and 29 C.F.R. § 2700.45. Vega filed a

Discrimination Complaint with the Mine Safety and Health Administration (“MSHA”)

in its Western District Office on November 8, 2017. The complaint alleged that

Vega was terminated for activity protected under the Mine Act. In his

Application for Temporary Reinstatement, the Secretary contends that Vega’s

complaint was not frivolously brought and seeks an order temporarily

reinstating Vega to his former position as a mobile equipment technician for

the Respondent, Syar Industries, Inc. (“Syar”), at the Syar Napa shop pending

the final hearing and disposition of this case. Syar filed a Request for

Hearing on December 22, 2017. An expedited hearing on the application was held

on January 4, 2018, in Vacaville, California.

On January 2, 2018, two days prior to

the hearing, the Secretary filed a motion in limine to exclude evidence extending

beyond the limited scope of the hearing. Syar’s counsel stated that Syar did

not oppose the Secretary’s motion. (Tr.6:11–15) During the hearing I ruled on

ad hoc objections by counsel with the Secretary’s limine motion in mind, but

did not otherwise rule on it.

For the reasons that follow, I grant the

application and order Vega’s temporary reinstatement.

I. SUMMARY OF

THE EVIDENCE

Syar

is a mine operator in northern California, primarily involved in the rock

quarrying, asphalt mining, and concrete businesses. (Tr.12:1–10) The mine at

issue is divided by a freeway into two parts: the Napa shop and the Napa quarry.

(Tr.16:23–17:5) The Napa shop does maintenance work, while the Napa quarry is

where the extraction is done. (Tr.17:2–5)

Vega

started working at Syar in 1995 while in college. (Tr.14:24–15:3) While at

Syar, he worked in various positions: first as a parts runner (Tr.15:8–9), then

in the machine shop for six months (Tr.15:10–11), and next as a mechanic, after

completing an apprenticeship with the journeyman mechanics. (Tr.15:12–17) Before

being terminated by Syar, Vega was most recently employed as a heavy duty

repairman. (Tr.15:18–20) Vega primarily worked at the Napa shop site and reported

directly to Foreman Ken Calvin. (Tr.17:6–7, 11–13; 19:15; 43:10–11) In addition

to his work as a heavy duty repairman, Vega was a Cal/OSHA representative, MSHA

miners’ representative, and a steward with the Operating Engineers Local 3 Union.

(Tr.15:21–22) As a union steward, Vega was tasked with referring other members’

complaints to management. (Tr.46:16–18)

Smoke

in the Hose Repair Room

The hose repair room is a

metal shed measuring approximately 12 feet by 12 feet (Tr.18:20), constructed

approximately ten years ago for the purpose of cutting wire-braided hydraulic

hoses. [1]

(Tr.49:23–24; 50:2–11) Vega testified that although an ordinary “knife blade”

would cut a regular rubber hose and up to two wires, most of Syar’s hoses are high-pressure

hydraulic hoses, which contain four to six wires and cannot be severed by a

knife blade. (Tr.18:3–8) Miners were therefore told to cut the hydraulic hoses

with an abrasive wheel, which “basically just grinds the rubber and billows out

a lot of smoke.” (Tr.18:8–11)

Vega wondered if the smoke

was toxic and subsequently reported the issue to Napa shop safety director

James Kerr sometime in January 2017. (Tr.16:18–20; 41:20–42:2; 51:8–18) Vega

testified that Kerr was unable to find any information on the toxicity of the

smoke and advised Vega to wear a respirator if the smoke was an issue. (Tr.18:15–17;

42:3–7) Vega testified that the smoke problem had been ongoing since the hose repair

room was constructed ten years prior. (Tr.49:16–24) However, until the January

2017 complaint to Kerr, Vega had not reported this smoke issue on his workplace

exam forms nor did he raise the issue during safety meetings. (Tr.50:21–51:3)

In

July 2017, Bob Hayes, a co-worker, complained to Vega about the hose repair room

smoke while they were working on changing out a hydraulic hose that had blown. (Tr.19:1–4;

42:23–43:4) Hayes told Vega that he wanted to see if they could order a hose

cutter machine that could cut hoses without producing smoke. (Tr.19:4–7) Vega

was skeptical that Syar would buy a new machine, and suggested that they should

instead look for a better blade. (Tr.19:7–9) Vega subsequently searched online

and found a blade that would fit the old chop saw machine. (Tr.19:9–10) Vega

believed that management did not like him (Tr.19:13–14; 33:12–24). He suggested

that Hayes make the request for the new part because he felt that management

would reject the request if they knew it came from Vega. (Tr.19:11–14) Hayes

made the request to their direct supervisor and foreman, Ken Calvin, and

received permission to go ahead with the order. (Tr.19:14–16; 43:8–11; 62:10–11)

Hayes then submitted the order to Randy Novack, the parts specialist. (Tr.19:17–18)

A

week later, Vega followed up with Novack and was told that the parts request was

put on hold by Napa shop superintendent James Irvine while he looked for

cheaper alternatives. (Tr.19:20–23; 21:11–18) Vega did a second follow-up with

Novack the next week but was again told that Irvine was waiting to see what

other companies were using to cut their hoses. (Tr.19:24–20:6) Vega testified he

told Novack that if Irvine continued to stall, and if the smoke continued to be

an issue, Vega would call MSHA. (Tr.20:7–16; 44:7–9) Vega testified that he did

not hear anything more about the status of the chop saw or requested part from

that point on. (Tr.21:5–8)

Near-Miss

Incident on Quarry Haul Road

In

July 2017, Vega was working in the quarry when a fellow miner told him of a

recent, near-miss incident involving two vehicles on a haul road. (Tr.21:21–22:13)

Vega told the miner he would talk to Napa shop safety director Kerr to see what

the legal requirements were for the width of a two-way haul road and if warning

signs were necessary. (Tr.22:14–18) When he returned to the Napa shop, Vega

spoke with Kerr and asked him what the legal width of a haul road was for

two-way traffic. (Tr.22:19–20; 53:1–4) Kerr was unable to immediately find an

answer. (Tr.22:22–24) Rather than wait, Vega asked Kerr to keep him updated and

to relay any findings to Jamal Grayson, the Napa quarry safety director. (Tr.22:25–23:7)

A

few days later, Vega spoke again with Kerr. (Tr.23:13–18) Kerr stated that he

could not find any information, so he spoke with Irvine about the issue. (Tr.23:17–20)

Vega testified that Kerr indicated that Irvine was upset with Vega for

involving himself with Napa quarry issues, since Vega was a miners’

representative for the Napa shop, not the quarry. (Tr.23:21–24:1; 61:4–7) To

Vega’s knowledge, nothing further was done about the haul road issue. (Tr.23:8–10)

Writing

on Pay Envelopes & Investigation by Management

In

mid-July 2017, Vega noticed that people were drawing smiley faces and writing

“Hello” or “Good job” on co-workers’ pay envelopes left at the front counter. (Tr.25:15–18;

54:12–16) Vega also began writing complimentary notes like “Great job today” or

“glad to have you on board” on his co-workers’ pay envelopes. (Tr.25:19–20) In

one case, Vega wrote, “There is nothing more pleasing than hearing the sound of

your voice over the radio in the morning.” (Tr.40:10–13) Vega testified that he

only wrote complimentary notes on the envelopes and sometimes signed them with “RT”—the

initials of quarry manager Rick Tranchina. (Tr.25:24–26:1; 40:3–5; 75:13–16) Vega

thought some of his notes were funny. (Tr.40:17–19) This practice continued for

approximately four to six weeks. (Tr.25:23; 74:3–4)

In

the first week of August, Tranchina raised the envelope issue with HR Manager

Ann Pearson. (Tr.67:15–18; 75:10–16) No other employee, including those who

received the envelopes with notes, raised the issue with Pearson. (Tr.75:17–24)

Syar subsequently installed a camera near the front counter and hired a

handwriting analyst to catch the perpetrators. (Tr.26:22–25; 71:10–15; 76:12–13;

79:5–6) Vega was not told to stop writing on the envelopes or warned in any way

by management. (Tr.27:1–5; 32:12–15; 75:25–76:6) Vega was made aware of the

camera around September 9, 2017, when a co-worker pointed it out to him. (Tr.29:1–8;

32:2–8; 36:8–17) Vega immediately stopped writing notes on the envelopes when

he learned about the camera and management’s attempt to catch the perpetrator. (Tr.29:2–3;

32:10–11)

To

his knowledge, Vega was the only employee videotaped writing on the envelopes. (Tr.37:14–19)

Tom Vella, a co-worker, was also observed on camera standing with Vega as Vega

wrote on the envelopes. (Tr.70:19–24; 71:5–7) Vella did not actually write on

the envelopes. (Tr.71:22–23)

Termination

On September 11,

2017, Vega and Vella were called into the main office. (Tr.24:9–15; 56:9–16) When

Vega arrived, Jesse Espinoza, Vega’s business representative, was waiting in

the lobby. (Tr.24:18–20) Vega, Vella, and Espinoza went to the conference room,

where Irvine, Pearson, and Lance Stevenson were waiting. (Tr.25:8–9) Pearson handed

Vega a letter of termination for impersonating a quarry manager. (Tr.25:10–11;

56:18–19) Vella was suspended for two days without pay and given a written

warning in his file. (Tr.72:2–3)

Vega

testified that Espinoza said they would grieve Vega’s termination. (Tr.26:16–17)

The grievance was initiated the same day. (Tr.57:14–16) A board of adjustment

(grievance) hearing was held in mid to late October. (Tr.58:3–11) At the

hearing, two company representatives, including James Irvine, and two union

representatives, including Bran Eubanks, met to resolve Vega’s contest of his

termination. (Tr.58:15–17; 59:10–20; 62:15–18; 64:23–65:5; 66:13–18) Ultimately,

the grievance board was unable to reach an agreement—both company

representatives sided with the company; both union representatives sided with

Vega. (Tr.66:9–10; 66:18–23)

Animus

& Disparate Treatment

Vega

testified he felt there was “bad blood” with Irvine ever since Irvine’s

promotion to superintendent in 2014. (Tr.32:24–25; 33:12–24) As a Union

Steward, Vega had a history of bringing complaints to Irvine, which were not

resolved. (Tr.34:1–4) Vega testified that he would have to “go the union route”

to deal with these issues, resulting in his having to “battle it out” with

human resources. (Tr.34:5–9) Vega also testified that he never experienced

hostility or animus toward himself in his role as a miner’s rep. (Tr.46:1–3)

Vega

contends that after he was terminated, he learned that Tranchina had warned other

miners to stop writing on the envelopes. (Tr.31:14–18; 31:23–32:1; 37:21–38:2) Vega

testified that he would have stopped writing on the envelopes had Tranchina

given him the same warning he gave to the other miners. (Tr.31:18–20) Vega testified

that this discrepancy in treatment made him feel that he was being singled out.

(Tr.32:16–21)

Vega

also testified about an incident in 2015, when management tried to suspend him for

failing to show up for work, although he had already received permission to

take leave from Bob Schwab, the human resources manager at the time. (Tr.34:15–35:18)

Vega believes this was another example of management singling him out. (Tr.34:12–15)

II. DISCUSSION

OF RELEVANT LAW

Section

105(c) of the Mine Act prohibits discrimination against miners for exercising

any right protected by 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. 95-181,

at 35 (1977),  reprinted in  Senate Subcomm. on Labor, Comm. on

Human Res., Legislative History of the Federal Mine Safety and Health Act of

1977 , at 623 (1978).

Congress

created 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.” Id.  at 624–25.

When

a person covered by the Federal Mine Safety and Health Act of 1977,  30 U.S.C. § 815(c)(2) , notifies

the Secretary that he/she believes discrimination has occurred, the Secretary

is obligated to investigate, “and if the Secretary finds that such complaint

was not frivolously brought, the Commission, on an expedited basis [. . .],

shall order the immediate reinstatement of the miner pending final order on the

complaint.” 30 U.S.C. § 815(c)(2).

The

Commission has established a procedure for making the reinstatement decision.

Commission Rule 45(d) states:

The scope of a hearing on an application

for temporary reinstatement is limited to a determination as to whether

the miner’s complaint was frivolously brought. The burden of proof shall be

upon the Secretary to establish that the complaint was not frivolously brought.

In support of his application for temporary reinstatement, the Secretary may

limit his presentation to the testimony of the complainant. The respondent

shall have an opportunity to cross-examine any witnesses called by the

Secretary and may present testimony and documentary evidence in support of its

position that the complaint was frivolously brought.

29 C.F.R. § 2700.45(d)

The

scope of a temporary reinstatement hearing is narrow, being

limited to a determination whether a miner’s complaint was frivolously brought.

Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc. , 9

FMSHRC 1305, 1306 (Aug. 1987),  aff’d sub nom.   Jim Walter Res., Inc. v. FMSHRC , 920 F.2d 738 (11th Cir. 1990) .

The

legislative history for section 105(c) reveals that Congress discussed the term

“frivolous” with the understanding that a complaint is not frivolous if it

“appears to have merit.” S. Rep. No. 95-181, at 36–37 (1977), reprinted in

Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the

Federal Mine Safety and Health Act of 1977 , at 624 (1978). The “not

frivolously brought” standard has also been equated to the “reasonable cause to

believe” standard applied in other contexts. Jim Walter Res., Inc. , 920 F.2d. at 747 ;  Sec’y of Labor on behalf of

Bussanich v. Centralia Mining Co. , 22 FMSHRC 153, 157 (Feb. 2000).

When

determining whether a miner’s discrimination claim is not frivolous, the Court

is essentially required to consider the facts in the light most favorable to

the claimant. When presented with conflicting evidence, the judge and the

Commission are not required to resolve conflicts in testimony at

the temporary reinstatement stage of a discrimination

proceeding. Sec’y of Labor on behalf of Albu v. Chicopee Coal Co. , 21

FMSHRC 717, 719 (July 1999), citing Jim Walter Res., Inc. , 920

F.2d at 744. Indeed, the Commission has determined that it is inappropriate for

the Judge to make credibility determinations or resolve conflicts in testimony

during a temporary reinstatement hearing. Sec’y of Labor on

behalf of Williamson v. CAM Mining, LLC , 31 FMSHRC 1085, 1088 (Oct.

2009). Rather, “[a] non-frivolous issue may be shown where there is both

supporting and detracting evidence in the record . ” Sec’y of Labor on

behalf of Nickoson v. Mammoth Coal Co. , 34 FMSHRC 1252, 1255 (June

2012),  citing Chicopee Coal Co. , 21 FMSHRC at 718–19. Where

there is conflicting evidence in the record, there must be facts in the record

that support the Secretary’s theory of liability in order to meet the “not

frivolously brought” standard. Sec’y of Labor on behalf of Ward v. Argus

Energy WV, LLC , 34 FMSHRC 1875, 1878–79 (Aug. 2012).

To

prove a prima facie case of discrimination under section 105(c) of the Act, the

Secretary bears the burden of establishing: (1) that the miner engaged in

protected activity; and (2) that the adverse action complained of was motivated

in any part by that activity. Sec’y of Labor on behalf of Pasula v.

Consolidation Coal Co. , 2 FMSHRC 2786 (Oct. 1980),  rev’d on

other grounds sub nom. Consolidation Coal Co. v. Marshall , 663

F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United

Castle Coal Co. , 3 FMSHRC 803 (Apr. 1981); Sec’y of Labor on behalf

of Jenkins v. Hecla–Day Mines Corp. , 6 FMSHRC 1842 (Aug. 1984); Sec’y

of Labor on behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508

(Nov. 1981),  rev’d on other grounds sub nom.   Donovan v. Phelps Dodge Corp. , 709 F.2d 86 (D.C. Cir. 1983) .

An

applicant for temporary reinstatement, however, does not require the

Secretary or aggrieved miner to prove a prima facie case of

discrimination with the attendant requirement of proving all necessary elements

at a higher evidentiary standard. The applicant must merely provide evidence of

sufficient quality and quantity to allow the judge to find, by application of

the “reasonable cause to believe” standard, that: (1) the applicant engaged in

protected activity; and, (2) there is sufficient showing of a nexus between the

protected activity and the alleged discrimination to support a conclusion that

the complaint of discrimination is not frivolous.

Regarding

the nexus requirement, judges and the Commission have adopted elements of the

full prima facie case to create an analytical framework that comports with

the strictures of the limited evidentiary scope of

the temporary reinstatement process yet is useful in bridging

the sometimes difficult gap between alleged actions and the intentions behind

them. See, e.g. , CAM Mining, LLC , 31 FMSHRC at 1088 (“While an

applicant for temporary reinstatement need not prove a prima facie case of

discrimination, it is useful to review the elements of a discrimination claim

in order to assess whether the evidence at this stage of the proceedings meets

the non-frivolous test.”). In recognition of the fact that direct evidence of

intent or motivation is rarely found, the Commission has identified several

circumstantial indicia of discriminatory intent: (1) knowledge of the protected

activity; (2) coincidence in time between the protected activity and the

adverse action; (3) hostility or animus toward the protected activity; and, (4)

disparate treatment. Chacon , 3 FMSHRC at 2510–12.

III. CONTENTIONS

The

Secretary of Labor on behalf of Complainant argues that he has met his burden

of establishing that the discrimination complaint is non-frivolous, and, as a

result, Vega should be temporarily reinstated. The Secretary asserts that Vega’s

complaints to his supervisors in January, July, and August of 2017 constituted

protected activity and that his termination on September 11, 2017, was an

adverse action, for which Syar is liable under the Act.

Respondent

argues that no nexus exists between Vega’s alleged protected activity and the

subsequent termination because Vega was terminated for tampering with employee

pay checks and forging a manager’s initials.

IV. APPLICATION

OF LAW TO THE EVIDENCE

The

scope of this temporary reinstatement proceeding is narrow. For the reasons set

forth below, I find that Vega’s discrimination complaint was not frivolously

brought.

a.

Vega Engaged in Protected Activity

In

enacting the Mine Act, Congress indicated that the concept of protected

activity in section 105(c) “be construed expansively to assure that miners will

not be inhibited in any way in exercising any rights afforded by the

legislation.” S. Rep. No. 95-181, at 36 (1977), reprinted in Senate

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal

Mine Safety and Health Act of 1977 , at 624 (1978). Protected activity

under the Act can include making a complaint to an operator or its agent about unsafe

equipment, see, e.g. , Sec’y of Labor on behalf of Knotts v.

Tanglewood Energy, Inc. , 19 FMSHRC 833, 837 (May 1995), or an alleged danger

or safety or health violation. See, e.g. , Sec’y of Labor on behalf of

Davis v. Smasal Aggregates & Asphalt, LLC , 28 FMSHRC 172, 175 (Mar.

2006) (ALJ).

Vega testified that

he made three safety complaints. The first was made to shop safety director

Kerr in January 2017, regarding the heavy smoke in the hose repair room. [2]

The second, also regarding the smoke in the hose repair room, was brought to

the attention of Vega’s direct supervisor Calvin and parts specialist Novack in

July 2017. The third safety complaint was made to Kerr in July or August 2017,

regarding a near-miss incident on the quarry haul road and the type of signs

legally required on a road with the haul road’s width. I note that Respondent

has not disputed that Vega made these complaints.

I conclude that

the Secretary has presented sufficient evidence at this temporary reinstatement

stage to establish that Vega’s safety complaints are protected activities under

the Act.  

b.

Vega Suffered an Adverse Employment Action

According

to the Act and well-settled Commission precedent, suffering a discharge or

demotion is an adverse employment action. 30 U.S.C. § 815(c)(1);  see

also Moses v. Whitley Dev. Corp. , 4 FMSHRC 1475, 1478 (Aug.

1982),  aff’d , 770 F.2d 168 (6th Cir. 1985). Vega was terminated on

September 11, 2017. His termination constitutes an adverse employment action. The

Secretary has presented sufficient evidence to satisfy this element of the test

at this temporary reinstatement stage.

c. A Nexus can

be Reasonably Alleged Between the Protected Activity and the Adverse Employment

Action

The

Commission has noted that “direct evidence of motivation is rarely encountered;

more typically, the only available evidence is indirect.” Chacon , 3 FMSHRC at 2510. Circumstantial

evidence may include: (1) knowledge of the protected activity; (2) coincidence

in time between the protected activity and the adverse action; (3) hostility or

animus toward the protected activity; and (4) disparate treatment. Id . at 2510–12. I will discuss each

factor in turn below.

1. Knowledge of the

Protected Activity

According to the

Commission, “the Secretary need not prove that the operator has knowledge of

the complainant’s activity in a temporary reinstatement proceeding, only that

there is a non-frivolous issue as to knowledge.” CAM Mining, LLC , 31

FMSHRC at 1090, citing Chicopee Coal Co. , 21 FMSHRC at 718.

The Commission

has held that “an operator’s knowledge of the miner’s protected activity is

probably the single most important aspect of a circumstantial case.” Sec’y

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

1999), citing Chacon , 3 FMSHRC at 2510. Whether the operator had

knowledge of the protected activity may be “proved by circumstantial evidence

and reasonable inferences.” Id. Additionally, the Commission has held

that a supervisor’s knowledge of the protected activity may be imputed to the

operator where knowledgeable supervisors are consulted regarding the miner’s

employment. See Turner v. Nat’l Cement Co. of Cal. , 33 FMSHRC 1059, 1067–68

(May 2011) (imputing knowledge and animus of miner’s direct supervisors to

official making disciplinary decision); Metric Constructors, Inc. , 6

FMSHRC 226, 230 n.4 (Feb. 1984) (stating that “[a]n operator may not escape

responsibility by pleading ignorance due to the division of company personnel

functions.”); see also Bos. Mutual Life Ins. Co. v. NLRB , 692 F.2d 169,

171 (1st Cir. 1982) (declining to “launder” regional sales manager’s knowledge

and animus through a neutral superior where superior had no knowledge of employee’s

protected activity but “acted in direct response” to regional sales manager’s

recommendation to dismiss employee); Grand Rapids Die Casting Corp. v. NLRB ,

831 F.2d 112, 117–18 (6th Cir. 1987) (imputing plant manager’s knowledge of,

and animus against, employee’s protected activity based on his involvement in

decision to terminate employee by recommending employee’s termination to

company’s industrial relations manager, who had no knowledge of employee’s

protected activity and relied on plant manager’s recommendation) (internal

quotations and citations omitted).

Vega testified that he spoke

directly with Napa shop safety director Kerr about the smoke in the hose repair

room in January 2017. In July 2017, Vega discussed the smoke issue with parts specialist

Novack when he inquired why the part was put on hold. Vega allegedly stated

that MSHA might have to get involved if the smoke continued to be an issue.

Vega also testified that he

spoke directly about the haul road incident with Kerr in either July or August

2017. According to Vega, Kerr later told him that Napa shop superintendent Irvine

was upset that Vega was involving himself with quarry safety issues. At the hearing,

Irvine admitted knowing that safety complaints had been made regarding both the

Napa quarry haul road and the smoke in the hose repair room, but he denied

knowing who specifically made the complaints. (Tr.64:14–22)

Nonetheless, a credibility

determination is proscribed at this juncture. The allegation by Vega that he

spoke directly with Napa shop safety director Kerr in January 2017 and parts specialist

Novack in July 2017, regarding the smoke issue in the Hose Repair Room, and

with Kerr again in July or August 2017, regarding the near-miss incident at the

haul road, is sufficient at this stage to establish a non-frivolous issue as to

Respondent’s knowledge of Vega’s safety complaints.

2. Coincidence in Time        

The Commission

has stated that “[a]dverse action under circumstances of suspicious

timing taken against the employee who is [a] figure in protected activity casts

doubt on the legality of the employer’s motive [. . .].” Chacon , 3

FMSHRC at 2511. The Commission has also stated, “[W]e ‘appl[y] no hard and fast

criteria in determining coincidence in time between protected activity and

subsequent adverse action when assessing an illegal motive. Surrounding factors

and circumstances may influence the effect to be given to such coincidence in

time.”’ Sec’y of Labor on behalf of Hyles v. All Am. Asphalt , 21

FMSHRC 34, 47 (Jan. 1999) (quoting Hicks v. Cobra Mining, Inc. , 13

FMSHRC 523, 531 (Apr. 1991)).

Often, improper

motivation is found “where the complainant proved that the operator knew of the

protected activities and that only a short period of time elapsed between the

protected activity and the discharge.” Baier , 21 FMSHRC at 958 (citing Knotts ,

19 FMSHRC at 837).

Improper motive

has been found in cases with varying periods between the protected activity and

the adverse action, ranging from a few hours to a few months. See, e.g. ,

Sec’y of Labor on behalf of McGill v. U.S. Steel Mining Co. , 23 FMSHRC 981,

986–87 (holding that the ALJ was correct in inferring a discriminatory motive

from adverse action taken less than two hours after complainant’s safety

complaints); Sec’y of Labor on behalf of Houston v. Highland Mining Co. ,

35 FMSHRC 1081, 1093 (Apr. 2013) (ALJ) (holding that a five-day gap between the

adverse action and protected activity constituted circumstantial evidence of a

nexus);

Baier ,

21 FMSHRC at 959 n.7 (holding that two weeks between complainant’s discussion

with MSHA inspector and discharge was sufficiently coincidental in time to

support a finding of discriminatory motive); see also CAM Mining,

LLC , 31 FMSHRC at 1090 (holding that three weeks between the protected

activity and adverse action was sufficient to find discriminatory motive); Pero

v. Cyprus Plateau Mining Corp. , 22 FMSHRC 1361, 1365 (Dec. 2000) (holding

that an adverse employment action four months after a protected activity

constituted close temporal proximity where the operator had knowledge of the

protected activity); Hyles , 21 FMSHRC at 42, 46–47 (finding temporal

proximity despite 15-month gap between miners’ contact with MSHA and the

failure to recall miners from layoff where only a month had passed from MSHA's

issuance of penalty as a result of the miners’ notification of the violations

and given evidence of intervening acts of hostility, animus, and disparate

treatment).

In this case, Complainant’s

protected activities occurred approximately eight months, two months, and one

month before the adverse action. I determine that this proximity in time, especially

in light of Vega’s contention that Irvine was aware of Vega’s role in at least

one of his safety complaints, establishes a non-frivolous claim that a nexus

exists.

3. Hostility Toward

the Protected Activity

The Commission

has held, “[h]ostility towards protected activity—sometimes referred to as

‘animus’— is another circumstantial factor pointing to discriminatory

motivation. The more such animus is specifically directed towards the alleged

discriminatee’s protected activity, the more probative weight it carries.” Chacon ,

3 FMSHRC at 2511 (citations omitted).

Vega testified

that he felt there was “bad blood” with Irvine, that Irvine put a stop to the

blade part request, and that Irvine was upset with Vega for involving himself

with safety issues at the Napa quarry. I find that the Secretary has presented

sufficient evidence to establish a non-frivolous claim that management may have

harbored hostility or animus about Vega’s alleged protected activities.

4. Disparate

Treatment

Disparate or

inconsistent treatment is another, indirect indicium of discrimination.

“Typical forms of disparate treatment are encountered where employees guilty of

the same, or more serious, offenses than the alleged discriminatee escape the

disciplinary fate which befalls the latter.” Chacon , 3 FMSHRC at 2512. It has been

recognized that “precise equivalence in culpability between employees” is not

required in analyzing a claim of disparate treatment under traditional

employment discrimination law. Pero , 22 FMSHRC at 1368 (citing McDonald

v. Santa Fe Trail Transp. Co. , 427 U.S. 273, 283 n.11 (1976)). Rather, the

complainant must simply show that the employees were engaged in misconduct of

“comparable seriousness.” Id.

While disparate

treatment is most often analyzed by comparing disciplinary fates of similarly

situated individuals, Vega’s testimony that he was not afforded the same

warning to stop writing on the envelopes that Tranchina gave to other miners establishes

a non-frivolous issue as to Vega’s inconsistent, and possibly disparate

treatment.

d. Conclusion

The Secretary

has established a non-frivolous claim that: (1) Vega engaged in protected

activities; (2) Vega suffered an adverse employment action; and, (3) there was

a nexus between the protected activities and the adverse employment action. Vega

is entitled to Temporary Reinstatement under the provisions of Section 105(c)

of the Act.

V. ORDER

It is ORDERED that ANTHONY

VEGA be immediately TEMPORARILY REINSTATED to his former job with Syar

Industries, Inc. at the Syar Napa shop at his former rate of pay, overtime, and

all benefits he was receiving at the time of his termination.

This

Order SHALL remain in effect until such time as there is a final

determination in this matter by hearing and decision, approval of settlement,

or other order of this court or the Commission.

I

retain jurisdiction over this temporary reinstatement proceeding. 29

C.F.R. § 2700.45(e)(4). The Secretary SHALL provide a report on the

status of the underlying discrimination complaint within 30 days . Counsel

for the Secretary SHALL also immediately notify my office of any

settlement or of any determination that Respondent did not violate Section

105(c) of the Act.

/s/

L. Zane Gill

L.

Zane Gill

Administrative

Law Judge

Distribution:

(Via Electronic Mail & U.S. Mail):

Abigail

G. Daquiz, Esq., U.S. Department of Labor, Office of the Solicitor, 300 Fifth

Avenue, Suite 1120, Seattle, WA 98104–2397

([email protected])

Anthony

Vega, 1125 Wildplum Ct, Vacaville, CA 95687–7714

Bradley

B. Johnson, Esq., Harrison, Temblador, Hungerford & Johnson LLP, 2801 T

Street, Sacramento, CA 95816

([email protected])

[1] The hoses being

cut in the hose repair room are very large, measuring approximately 30 feet in

length, 2.5 inches in diameter, and weighing 300 pounds. (Tr.20:12–25;

50:14–20)

[2]

Although Vega testified numerous times at hearing that he complained to Kerr

about the smoke in January 2017, he failed to mention this event in his

Discrimination Complaint. See Ex. S–A.