Western Fuels-Utah, Inc.

Plain-English summary

Joseph Gabossi complained to Western Fuels-Utah management about the company's reporting structure and its effect on mine safety. After those complaints, the company placed him on probation and discharged him. Judge John J. Morris found that the complaints were protected activity and that the company did not prove it would have discharged Gabossi for unprotected conduct alone. He sustained the discrimination complaint and ordered Western Fuels-Utah to pay $39,560.06 plus interest, covering lost wages, medical and dental expenses, and house-related losses.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(1) and 30 U.S.C. § 815(c)(2)
• Outcome: The discrimination complaint was sustained, and $39,560.06 plus interest was awarded.
• Key point: Repeated safety-related complaints can support a Mine Act discrimination claim when the employer's stated reason for discharge is not proven to be independent of that protected activity.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) & J. GABOSSI V. WESTERN FUELS-UTAH
DDATE:
19881024
TTEXT:

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~1462
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 86-24-D
ON BEHALF OF
JOSEPH GABOSSI, Deserado Mine
COMPLAINANT

         v.

WESTERN FUELSÄUTAH, INC.,
RESPONDENT

                        DECISION AFTER REMAND

Before: Judge Morris

 On August 15, 1988 the Commission ruled that Joseph

Gabossi's complaints to mine management concerning the company's
reporting structure constituted an activity protected under the
Act and, accordingly, the Secretary may have established a case
of unlawful discrimination. Further, the Commission noted that
"(i)t remains to be determined whether, on the basis of this
record, Western Fuels successfully rebutted the Secretary's case
or affirmatively defended against it." Slip op. at 6, 7.

 The Commission order of remand basically restates its

established precedent. Specifically, an operator may rebut the
prima facie case by showing that the adverse action was in no
part motivated by protected activity. If the operator cannot
rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse
action in any event for the unprotected activity alone. Secretary
on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797 Ä 2800, rev'd on other grounds sub. nom. Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 81), Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817Ä818
(April 1981). See also Eastern Assoc. Coal Corp. v. FMSHRC 813
F.2d 639, 642 (4th Cir.1987), Donovan v. Stafford Constr. Co.,
732 F.2d 954, 958Ä59 (D.C.Cir.1984); Boich v. FMSHRC, 719 F.2d
194, 195Ä96 (6th Cir.1983) (Specifically approving Commission's
PasulaÄRobinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397Ä413 (1983) (approving nearly identical
test under National Labor Relations Act).

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In its order of remand the Commission directed the Judge
to make additional findings of fact and to analyze such
findings in accordance with applicable case law. In particular,
the Commission directed the Judge to consider the incident of
November 9, 1985 involving Gabossi and Mine Manager Upadhyay as
well as the events surrounding Gabossi's discharge on January 30,
1985.

 The Judge took the issues as submitted on the basis of the

present record and briefs (Order, August 18, 1988).

 Based on the evidence and the record as a whole, I find that

a preponderance of the substantial, reliable and probative
evidence establishes the following and I make these:

                        Findings of Fact

                  Incident of November 9, 1984

 1. On November 9, 1984, a Friday, Upadhyay and Gabossi were

discussing an increase in Gabossi's duties. This increase
involved a computer technician and all of the belts from the mine
to the silos (Tr. 30).

 2. Gabossi felt the time was opportune so he brought up the

issue of the separation of the company's departments as well as
their [lack of] coordination. Gabossi showed Upadhyay Emmons'
letter (relating to Gabossi's mine foreman duties under Colorado
law) (Tr. 31, Ex. C5).

 3. As soon as he read the letter Upadhyay got "instantly"

mad and he told Gabossi that if he didn't like it he should quit;
that when Western Fuel makes a decision they're going to run it
the way they want no matter who else doesn't like it. It was a
heated discussion (Tr. 30, 31).

 4. On November 11th (Footnote 1) Gabossi was called to Upadhyay's

office. Upadhyay was very mad that he (Gabossi) had called the
State of Colorado. Upadhyay put Gabossi on probation for not
getting along with senior staff members. A heated discussion
followed (Tr. 32, 33).

 Upadhyay stated the probation would be for an indefinite

length of time (Tr. 35).

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5. The Upadhyay written reprimand to Gabossi was given to him on
November 16th (Tr. 35, Ex C3).

 6. The first paragraph of the reprimand discusses Gabossi's

lack of willingness to work harmoniously (Tr. 36, Ex. C3).

 Respondent's evidence casts the "big blowup" in a different

light. Specifically, Upadhyay had gone to Gabossi's office in the
change house to discuss a monitoring system, an on-site research
student and duties concerning all of the silos. These were to be
Gabossi's new responsibilities (Tr. 198, 199, 472, 473).

 As he started to discuss it Gabossi brought up a question

concerning his house and the company's failure to purchase it.
Upadhyay said the company wasn't going to buy Gabossi's house.
Gabossi then "blew up" and the meeting became a name calling
contest with Gabossi referring to Upadhyay as a "worst mine
manager" and also to "caste systems" (Tr. 198, 199, 473, 474).
Immediately after the "blowup" Gabossi gave Upadhyay the State of
Colorado letter (Tr. 474, Ex. C5). Upadhyay said the letter
didn't mean anything. While Upadhyay said he didn't think much of
Gabossi he didn't raise his voice. Upadhyay left the room and
took the letter with him (Tr. 474).

 Over the weekend Upadhyay contacted his supervisor seeking

his authority to terminate Gabossi. But the counter suggestion
was that Gabossi be put on probation. The probation ensued.

                      Discussion and Evaluation

 I credit Gabossi's version of the incident of November 9th.

The two men were discussing a computer technician and the silos,
both involving additional duties for Gabossi. These subjects
would, by then, be an almost automatic entry to Gabossi's
arguments with management over the company's failure to
coordinate underground mining activities. Such safety-related
complaints with management were continuing, extensive and
frequent. Further, they involved Gabossi's concern for the
possible revocation of his mine foreman's papers.

 In addition, I reject Upadhyay's evidence. His version is

less than unequivocal (Transcript at 475). Further, the house
repurchase agreement in the total record was relatively
insignificant when compared with the safety related complaints
focusing on the company reporting structure.

    Respondent argues (Footnote 2) that Gabossi was not motivated by

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safety concerns but by the house repurchase hassle. I am not
persuaded. As stated above, the house repurchase agreement and
its apparent breach was relatively insignificant in the overall
facts. I agree that certain facts are clearly confirmed by
Gabossi. Specifically, Emmons did advise him that he must file a
complaint in writing before Emmons would act and, further,
Gabossi had originally applied for the position of mine manager.
However, these factors do not cause me to conclude that Gabossi's
complaints as to the reporting structure were other than safety
related.

      Incident involving Gabossi's probation and discharge

     Based on the credible record I make the following:

                        Findings of Fact

 1. Gabossi was placed on probation on November 12. A formal

letter dated November 16, 1984, recites that Gabossi's
performance had not been satisfactory. In detail, it recites as
follows:

      Your willingness to work harmoniously under the
      organization structure put into effect by Western Fuels
      has been negative. You have repeatedly objected to the
      idea of Maintenance Superintendent being responsible
      for underground maintenance.

      You have demonstrated your inability to work
      harmoniously with other division heads and employees at
      the Deserado Mine.

      Your attitude towards other division heads, work
      ability and habits have always been negative. I have
      noticed this personally and also have heard from other
      people from other companies.

      Your attitude towards Western Fuels, its management and
      policies has been less than desirable.

      You getting into arguments with me over matters in
      which you should not be even involved with.

      I also would like to make it clear to you that once the
      decision is made by me on any matter that becomes a
      policy at the Deserado Mine, you are expected to abide
      by them irrespective of what your opinion was on that
      matter.
           (Exhibit C3)

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2. After November 12, 1985 Upadhyay was cool but civil to Gabossi
(Tr. 42).

 3. On January 21, 1985 Gabossi brought to Upadhyay's

attention the fact that a mechanic was falsifying MSHA electrical
inspection books. Gabossi wanted the electrician fired (Tr. 42).

 4. After January 21, 1985 Upadhyay wouldn't talk to Gabossi

(Tr. 42, 43).

 5. There were no further heated discussions, except for the

underground safety problem (Tr. 43).

 6. There were no further heated discussions between Gabossi

and any other supervisors or department heads (Tr. 43).

 7. After he was put on probation Gabossi became more quiet

at staff meetings (Tr. 44).

 8. On January 30th Gabossi went to Upadhyay's office.

Upadhyay requested his resignation. When the company refused to
repurchase his home, Gabossi refused to resign. At that point
Upadhyay fired Gabossi. This meeting generated a heated
discussion (Tr. 45).

 At the same time Gabossi received a termination letter. It

read as follows:

      Western FuelsÄUtah, Inc. at the Deserado Mine needs to
      have employees who can act together as a team,
      especially now in view of our small workforce. Your
      efforts have not been directed towards that end. For
      this reason, your employment shall be terminated at
      Western FuelsÄUtah, Inc. effective immediately.

      In an effort to be fair and equitable, you shall
      receive your normal compensation through February 15,
      1985. Your current health insurance shall be terminated
      March 1, 1985 and if you desire to convert to a private
      policy it will be incumbent on you to investigate this
      privilege.
                                     (Tr. 45, Ex. C2)

 9. Gabossi told Upadhyay it was pretty bad that he "got run

off" for showing him a letter from the State of Colorado and for
his concern for the safety and health in the coordination between
departments (Tr. 46).

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Respondent's evidence casts the events of Gabossi's termination
along different lines. It indicates that on January 29, 1985,
A.B. Beasley gave his letter of resignation to Upadhyay (Tr. 484,
485). Beasley stated to Upadhyay that he was resigning because he
couldn't work with Gabossi (Tr. 485).

 When Beasley left (after the conference), Upadhyay concluded

people were leaving because of Gabossi's inability to work with
them. So Upadhyay talked to the company's top officer. Permission
was then granted to terminate Gabossi (Tr. 486, 487).

 Upadhyay called Gabossi to his office and gave him the

option of resigning. When Gabossi refused to resign Upadhyay
fired him (Tr. 488).

 Gabossi said "Bullshit, you cannot get away with it, you are

the worst mine manager I've ever worked for." Upadhyay said he
didn't want to hear anything further so he opened the door and
Gabossi left (Tr. 488).

                   Discussion and Evaluation

 A conflict exists in the two versions of the evidence

concerning the events at the time Gabossi was fired.

 Basically, Gabossi contends he was fired because he was not

a "team player." That is, his long and continuing conflict with
management over its inadequate reporting structure finally
removed him from "the team."

 On the other hand, respondent's position is that the company

fired Gabossi because of Beasley's conflict with Gabossi which
caused Beasley to resign. In sum, Upadhyay did not look forward
to obtaining a new maintenance supervisor and later losing his
services due to Gabossi's conflicts with management and whoever
might be the maintenance supervisor.

 On these credibility issues I credit Gabossi's version. The

termination letter recites the company needs employees "who can
work together as a team." Further, Gabossi's efforts have not
been directed "towards that end." Gabossi was not a "team member"
because he refused to go along with the company's organizational
plan. This issue, a safety related complaint, predominates in the
evidence. The complaint was made ten to fifteen times. As Gabossi
indicated, it got to be a "headache." But Upadhyay did not seem
to be willing to work on the problem (Tr. 26, 126).

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I reject respondent's claim that Gabossi was fired because
Beasley resigned due to his conflicts with Gabossi. It is true
there were conflicts between Beasley and Gabossi, but such
conflicts did not cause Beasley's resignation (Tr. 430, 435).
Beasley's resignation occurred for the reasons stated in his
letter of resignation; namely, higher salary, larger community
and more resources with which to meet the challenges of a
maintenance superintendent (Ex. R4). If the Gabossi conflicts
with Beasley were the "primary reason" (Footnote 3) for Beasley's
resignation there should have been in the very least a vague
reference to it in Beasley's resignation letter. In sum, I find
Beasley's letter of resignation to be much more persuasive than
Beasley's and Upadhyay's contrary oral testimony at the hearing.

 The Commission has ruled that Gabossi's safety related

complaints concerning the company's reporting structure may have
been an activity protected under the Act. Slip op. at 2. For the
reasons stated herein I conclude such complaints were, in fact,
safety related.

 Respondent asserts 4 that the Judge in his initial

decision specifically found that respondent would have discharged
Gabossi in any event for his unprotected activity. Respondent
sets forth a portion of the Judge's decision. Slip op. at 25.
(August 21, 1988).

 Respondent has misconstrued the Judge's initial decision. In

that decision I ruled that Gabossi's unprotected activity "was
his continued clash with management over the reporting
structure." The trial Judge's narrow view of the Act's protective
umbrella of the anti-discrimination provisions of section
105(c)(1) was held to be erroneous in the order of remand. Slip
op. at 1, 2 (August 15, 1988).

 On the facts stated above, I conclude that Gabossi was

discharged because of his protected activity.

 Further, the operator's defense had not prevailed. The

operator was not motivated by an unprotected activity when it
fired Gabossi.

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Even if I were to credit respondent's version that Beasley
triggered Gabossi's firing (which I do not), I would nevertheless
hold that the operator's discharge of Gabossi was motivated in
part by his protected activity; namely, his prolonged complaints
over the company's reporting structure.

    The complaint of discrimination should be affirmed.

                               Damages

 The Senate Report, with respect to relief in section 105

cases, states as follows:

         It is the Committee's intention that the Secretary
         propose, and the Commission require, all relief that is
         necessary to make the complaining party whole and to
         remove the deleterious effects of the discriminatory
         conduct including, but not limited to reinstatement
         with full seniority rights, back-pay with interest, and
         recompense for any special damages sustained as a
         result of the discrimination. The specified relief is
         only illustrative.

         S.REP. NO. 95Ä181, 95th Cong., 1st Sess. 37 (1977),
         reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE
         SAFETY AND HEALTH ACT OF 1977, 95th Cong., 2d Sess., at
         625 (1978).

 Gabossi does not seek reinstatement. The claim for damages

here focuses on salary, medical and dental expenses, the failure
of the respondent to repurchase Gabossi's home and incidental
costs related to refinancing and selling the house.

                                Salary

 When Gabossi was fired his annual salary was $52,000. His

termination notice indicates his normal compensation was paid
through February 15, 1985. (Ex. C2). The uncontroverted evidence
further shows the employees on the payroll received a 5.8 % pay
raise on January 21, 1985 (Tr. 50, 167Ä169, Ex. C11). Gabossi did
not receive the increase because he was on probation. On the
uncontroverted evidence I conclude Gabossi's lost wages are:

         Six months without employment (February 15 to August
              15) @ $4,584.66 per month, or $27,507.96.

 The monthly salary includes the 5.8 % increase given other

employees on January 21, 1985.

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Other Appropriate Relief

      It must be determined whether the additional special
      damages which Complainant seeks may be awarded as
      "other appropriate relief" under section 105(c)(2). In
      the words of the Senate Report quoted, supra; such
      damages are awarded when they are sustained "as a
      result of" the discrimination. It has been held that in
      order to be recoverable, damages must be proved to be
      the proximate result of the complained wrong. Classic
      Bowl, Inc. v. AMF Pinspotter, Inc. 403 F.2d 463 (7th
      Cir.1968). The legal concept of proximity is applicable
      to ascertain and measure damages. The necessary and
      appropriate limits of judicial inquiry are served by
      disregarding remote effects. Commonwealth Edison
      Company v. AllisÄChalmers Manufacturing Company, 225
      F.Supp. 332 (N.D.Ill.1963). UMWA on behalf of Moore, et
      al v. Peabody Coal Company, 6 FMSHRC 1920 (1984).

                  Medical and Dental Expenses

 The medical and dental expenses claimed here are in the

amount of $1,313. The evidence shows Gabossi apparently did not
present any claims to the insurance carrier within 30 days after
his discharge (during the period when his policy remained in
effect). However, if Gabossi had not been terminated his
insurance coverage would have been in effect. Accordingly, I
believe it is appropriate that these additional special damages
of $1,313 be awarded as "other appropriate relief" under section
105(c)(2) of the Act.

                 Repurchase of Gabossi's House

 The evidence shows that respondent agreed to repurchase

Gabossi's house in Rangely (Colorado) if he left the company
within three years. The repurchase price was to be for the amount
Gabossi had paid for it (Tr. 55, 56, 169Ä171).

 The original house loan had been guaranteed by respondent.

The loan was immediately due when he was terminated. In order to
prevent foreclosure Gabossi secured a new loan. I calculate
Gabossi's damages as follows:

      Purchase Price 2Ä17Ä83                   $119,000
      Actual Resale Price                       114,000
         Loss due to respondent's
           failure to repurchase house          $ 5,000

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Inasmuch as respondent agreed to repurchase the house at
Gabossi's "purchase price" (Tr. 56), this award does not
encompass improvements of $1,273.09 made by Gabossi. Respondent
should not be held liable for a loss it did not agree to pay. In
other words, I believe the loss incurred by Gabossi from the
house improvements are remote damages.

    Additional house expenses include:

         Fees for abstract company          $     223.25
         Real estate agent fee                  2,500.00
         Interest paid to secure loan
           to prevent foreclosure               3,015.85

         Total incidental house expenses    $5,739.10

    In sum, the total damages are $39,560.06.

    For the foregoing reasons I enter the following:

                                ORDER

 1. The complaint of discrimination filed herein is

sustained.

 2. Respondent is ordered to pay to complainant within 40

days of the date of this decision the sum of $39,560.06 with
interest. Said interest should be calculated by using the formula
set forth in the case of Secretary ex rel Bailey v.
ArkansasÄCarbona, 5 FMSHRC 2042 (1983).

                                   John J. Morris
                                   Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Footnote starts here:-

~Footnote_one

 1 The testimony reflects this conversation also took place

on November 12 (Tr. 34).

~Footnote_two

    2 Brief filed before Commission at 3, 4.

~Footnote_three

    3 Respondent's brief before Commission at 4.

~Footnote_four

    4 Brief filed before Commission at 8.