Ames Construction, Inc.

Plain-English summary

Tom K. Sperry alleged that Ames Construction laid him off and then refused to rehire him because he had filed an MSHA complaint and raised safety concerns. Ames said the layoff resulted from a seasonal reduction in force and that it did not rehire Sperry because he was an unsafe employee. Judge Michael A. Lasher, Jr. found that Sperry engaged in protected safety activity, but that the evidence did not connect that activity to either adverse action. The judge credited the operator's business and safety explanations and dismissed the discrimination complaint.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(2) and 815(c)(3)
• Outcome: The Mine Act discrimination complaint was found to lack merit and was dismissed.
• Key point: Protected safety activity alone does not establish discrimination when the record supports an economic layoff and a separate, credible safety-based reason for refusing rehire.

Full text (FMSHRC public release)

CCASE:
TOM K. SPERRY v. AMES CONSTRUCTION
DDATE:
19920406
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
The Federal Building
Room 280, 1244 Speer Boulevard
Denver, CO 80204

CCASE: DISCRIMINATION PROCEEDING
TOM K. SPERRY,
COMPLAINANT Docket No. WEST 91-473-DM
v.
WE MD 91-12
AMES CONSTRUCTION, INC.,
RESPONDENT

                                 DECISION

Appearances: Tom K. Sperry, pro se, Nephi, Utah,
for Complainant;
Lawrence R. Dingivan, Esq., Jill Dunyon-Hansen, Esq.,
Salt Lake City, Utah,
for Respondent.

Before: Judge Lasher

 This matter was initiated by Mr. Sperry's complaint filed

with the Commission on July 8, 1991, pursuant to Section 105(c)
(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801, et seq. (1982), (herein "the Act"). His initial Sectio
105(c)(2) complaint was, on June 13, 1991, found by the Federal
Mine Safety and Health Administration (MSHA) to lack merit.
Complainant then filed the instant action with the Commission.
Mr. Sperry's complaint with MSHA alleged:

        I was promised in October of 1990 to be rehired
        around February of 1991. I talked to this Comp-
        any several times through the winter of 90-91
        with no problems at that time. On February 4,
        1991, I was told by Russ that I would not be
        rehired, that he had talked to Pete Smyle and
        Leon DeWitt and they had changed there [sic]
        mind about putting me back to work this season.

        I am sure that this action is because of a
        discrimination complaint I brought against them through
        your office.

        I have been in touch with my Labor Union in Reno. They
        said that if they put me back to work that they would
        find some way to get rid of me at a later date. The
        person at Reno is Chuck Billings Bus. Agent.

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Contentions

 Complainant contends that after being laid off in a

reduction in force on October 19, 1990 (Ex. C-2), he was not
thereafter rehired by Respondent because of his protected
activities in filing an MSHA complaint on September 26, 1990
(Ex. C-4) (Footnote 1) and making other on-the-job safety
complaints to his employer. Complainant also alleges that
his layoff was discriminatory. (T. 20).

 Respondent contends it laid off Complainant for lack of work

and that it did not rehire him because he was an unsafe employee.

Findings and Conclusions

 Based on the preponderance of the reliable and probative

evidence introduced on the record at the hearing in this matter,
the following findings of fact are made:

 Respondent at material times was a contractor for Newmont

Gold Company. (Ex. C-4). Its work was seasonal - depending on
when various of its contracts would be completed and new
contracts would commence. At times a reduction of force would be
necessary and employees would be laid off. (T. 139, 149,
161-162).

 Complainant (approximately 39 years old) commenced

employment with Respondent at Newmont Mine No. 3 as an equipment
operator (operating a No. 631 Caterpillar scraper) in the fall of
1989. His immediate supervisor most of the time thereafter was
foreman (now Superintendent) Lavene "Pete" Smyle. (T. 25,
107-108). Complainant operated a "water wagon" for most of his
employment beginning in approximately January 1990. (T. 27).

 During his employment, Complainant engaged in various

activities protected under the Act.

a. A discrimination complaint was filed under Section
105(c) by Mr. Sperry on September 26, 1990 (see MSHA Final
Report; Ex. C-4). This complaint was voluntarily withdrawn
on October 2, 1990 (Ex. C-4). As general information, it is noted
that MSHA's "Final Report" states with respect to this complaint:

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The incidents took place over an extended pe-
riod of time beginning approximately in Octo-
ber of 1989. The complainant was engaged in
protected activity. The complainant did com-
municate his belief of a protected activity to
mine management. The specific discriminatory act
that the complainant alleges mine managemwent has
undertaken is a failure to recognize his concern
over his evaluation of possible maintenance
problems associated with brakes on scrapers and
water trucks as well as equipment for dust control.

                         *    *    *    *    *

      b. Complainant advised a fellow employee how to get in

touch with the Nevada Mine Safety office in Reno, Nevada. Re-
spondent's foreman, DeWitt, told Complainant he "was wrong" in
doing this. (T. 51-52).

      c. Complainant made various complaints to his super-

vision, such as for inadequate brakes on equipment. (T. 52).
(Footnote 3)

       It is not clear and was not established by Mr. Sperry

that other alleged safety problems he observed were both (1) re-
ported to management, and (2) actually unsafe or (3) reasonably

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perceived by him to be unsafe. [See T. 27-28 (cut curtains); 31,
46-48 (dental appointment problem); 82-83].

      d. Complainant himself apparently contacted the Nevada

Mine Safety office (T. 27, 31). Whether Respondent was aware of
these contacts by Mr. Sperry was not established, however. (T. 31).

It is clear that in filing the MSHA complaint and in advising a
co-worker as to the whereabouts of Nevada's Mine Safety office,
Complainant engaged in safety activities protected by the Mine
Act, and that these activities were known to Respondent's
management.

  With respect to the layoff, the evidentiary presentation was

limited. The record does clearly indicate that the employment
expectations of Respondent's employees were not of a permanent
nature since the work was seasonal. (T. 40, 139, 149, 161-162).
Further, Respondent proved that 23 employees were laid off for
lack of work in a reduction in force between September 20, 1990,
and November 21, 1990. This group of 23 included Complainant who
was laid off on October 19, 1990. (T. 92, 148-150, 152; Exs. R-2,
R-6).

 Complainant produced no probative or convincing evidence,

that his layoff was discriminatorily motivated. (Footnote 4)

 I am unable to conclude from the evidence of record that

Respondent was in any way motivated by Complainant's protected
activities in laying him off as part of the reduction in force in
October 1990. Thus, no basis is found to conclude that the
"discriminatory layoff" change of the Complainant has merit.

 We turn now to Complainant's charge that Respondent's

refusal to rehire him was discriminatory. As Respondent contends
in its brief, the provisions of the labor agreement (see T. 50,
84-87, 91-92, 97-103, 105) between Complainant's employer and his
union do not govern the determination whether discrimination
occurred. The rules, remedies, burdens of proof, and analytical
formulae for determining such are set forth in the Mine Act and
specific precedents established by the Federal Mine Safety and

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Health Review Commission and the federal courts. In order to
establish a prima facie case of mine safety discrimination under
Section 105(c) of the Act, a complaining miner bears the burden
of production and proof to establish (1) that he engaged in
protected activity, and (2) that the adverse action complained of
was motivated in any part by that activity. Secretary on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); and Secretary
on behalf of Robinette v. United States Coal Co., 3 FMSHRC 803,
817-818 (April 1981). The operator may rebut the prima facie case
by showing either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity. If
an operator cannot rebut the prima facie case in this manner, it
may nevertheless affirmatively defend by proving that (1) it was
also motivated by the miner's unprotected activities, and (2) it
would have taken the adverse action in any event for the
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Co., 4 FMSHRC 1935, 1936-1938 (November 1982). The
ultimate burden of persuasion does not shift from the
complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Boich v.
FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983); Donovan v.
Stafford Const. Co., 732 F.2d 954, 958-959 (D.C. Cir. 1984)
(specifically approving the Commission's Pasula-Robinette test);
and Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (Dec.
1986).

 In terms of the required prima facie case in discrimination,

Complainant clearly established the first elements thereof, i.e.,
that he had engaged in protected safety activities and the
Respondent's management was aware thereof prior to the time he
was laid off and subsequently not rehired. The first of the two
issues posed is whether the adverse action taken by Respondent
against Complainant was "in any part" motivated by Complainant's
protected activities. The affirmative defense provided under the
Commission's discrimination formula raises the second issue: Even
assuming arguendo that Respondent was in part motivated by
Complainant's protected activities, was it also motivated by his
unprotected activities (unsafe job performance) and would it, in
any event, have not rehired him for this alone.

 Under the 1977 Mine Safety Act, discriminatory motivation is

not to be presumed but must be proved. Simpson v. Kenta Energy,
Inc., and Jackson, 8 FMSHRC 1034, 1040 (1986).

 In this connection, Respondent's management witnesses

convincingly testified that they were not motivated by
Complainant's protected activities in laying him off and refusing
to rehire him.

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In contrast, the evidence introduced by Complainant failed to
establish a motivational nexus between the allegedly
discriminatory adverse actions taken against him and his mine
safety activities was not convincing. (Footnote 5)

 Direct evidence of actual discriminatory motive is rare.

Short of such evidence, illegal motivation may be established if
the facts support a reasonable inference thereof. Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510, 2511
(Nov. 1981), rev'd on other grounds sub nom. Donovan v. Phelps
Dodge Corp., 709 F.2d (D.C. Cir. 1983); Sammons v. Mine Services
Co., 6 FMSHRC 1391, 1398-1399 (June 1984). The weight of the
evidence in this record is not probative that Respondent was
illegally motivated in whole or in part, nor is there support for
drawing an inference of such discriminatory intent.

 The record reveals that the decision not to rehire

Complainant was effectively made by his foreman, Mr. Smyle. He
credibly attributed this decision to the fact that he did not
consider Mr. Sperry to be a safe employee. (T. 116-117, 164,
171-172). Respondent made out a relatively strong case that
Complainant Sperry did not perform his duties in a safe manner.
Thus, Complainant Sperry was shown to have been involved in an
incident--in the Spring of 1990 when he was under the supervision
of his first foreman--where he pulled his water wagon out in
front of a large truck. (T . 110-155). (Footnote 6) He was being
considered for discharge because of this incident when Foreman
Smyle, who was short of help, said "Send him down to me, I can
work with him." (T. 112). Complainant thereafter, in June 1990,
received a verbal warning from Mr. Smyle for overwatering a curve
which resulted in a truck sliding off the road. (T. 113-114).
Significantly, after this, Mr. Smyle received complaints (T. 114,
168) from other drivers that Sperry was overwatering. He
testified:

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Shortly after that, yes, we had some more
complaints, and I don't recall the date, but I
know it was on a Monday morning safety meeting,
I went into the bus and told him specifically
that he had to watch this, that the drivers were
complaining. And he told me specifically, "Why
don't they tell me?"

              And I said, "That's not their job. That
       is my job." (T.114). (Footnote 7)

 Respondent also presented evidence that Complainant turned

in front of another truck driver, Jay Pace, after which Mr. Smyle
told Complainant that he would have "to start paying more
attention and be more careful or we're going to have a fatality."
(T. 115-116).

 The preponderance of the reliable and probative evidence in

this record indicates that Complainant was, as Respondent
alleges, an unsafe employee in the performance of the duties he
performed for Respondent and that this was its motivation in not
rehiring him. (Footnote 8)

 In reaching the conclusion that Complainant failed to

establish that his layoff and not being rehired were
discriminatorily motivated, consideration also has been given to
the fact that the instant record overall does not reflect a
pattern on the part of Respondent's management personnel to
engage in such conduct. A history of retaliatory reaction to the
expression of safety complaints was not persuasively shown.
Complainant points out several instances of what he considered
hostile words or action taken by management personnel toward him.
Yet, such were not demonstrated to be beyond normal workplace
occurrences. There was no evidence of retaliation against other
employees who had engaged in safety activities or who expressed
safety complaints.

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ULTIMATE CONCLUSIONS

 Respondent's motivation in laying off Complainant was

economic and in not rehiring him was because he was unsafe and
the decision to take such actions was justified. These adverse
actions were not wholly or in part discriminatorily motivated.
Thus, Complainant has failed to establish a prima facie case of
discrimination under Section 105(c) of the Mine Act.

 Even assuming arguendo, that if it were established by a

preponderance of the reliable probative evidence, that
Complainant's layoff and Respondent's refusal to rehire him were
motivated in part by his protected activities, Respondent
established by a clear preponderance of such evidence that it was
also motivated by business reasons and Complainant's unprotected
activities and that it would have taken the adverse actions in
any event for such.

                                 ORDER

 Complainant having failed to establish Mine Act

discrimination on the part of Respondent, the Complaint herein is
found to lack merit and this proceeding is DISMISSED.

                             Michael A. Lasher, Jr.
                             Administrative Law Judge

Footnotes start here:

 1. Complainant voluntarily withdrew this complaint on

October 2, 1990. (Attachment to Ex. C-4).

 2. See also T. 61-63, indicating Complainant's reasons for

withdrawing the complaint, such as his belief that "things were
going to improve" and his belief that Russell Harvey (Respondent
Project Director) would satisfactorily address his problems.

 3. Complainant's testimony concerning a conversation with a

foreman named Mike Beck concerning inadequate brakes on a CAT
compactor has been scrutinized and is found not to constitute a
safety complaint. (T. 55-58). Mr. Sperry's testimony frequently
was unclear, irrelevant, disjointed, rambling, and speculative in
nature. On cross-examination, at times he was hesitant. (T.65,
66, 67, 68-70).

 4. It appears from the record that Complainant's

primary--indeed, initial--intent in filing the instant complaint
was to allege discrimination in Respondent's refusal to rehire
him after the layoff.

 5. Based on observation of the demeanor of the witnesses and

Complainant, the various reasons appearing elsewhere in ths
decision, and the relatively convincing testimony of Respondent's
witnesses (Mr. Smyle, in particular, was closely cross-examined),
the accounts of Complainant have been determined not to carry the
same degree of reliability as those of Respondent's witnesses.

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 6. According to Complainant, he also was "accused" of

"getting in the way of trucks"--in September 1990. (T. 51).

 7. See T. 128-129.

 8. As the Commission pointed out in Bradley v. Belva Coal

Company, 4 FMSHRC 981, 991 (June 1982): "Our function is not to
pass on the wisdom or fairness of such asserted business
justifications, but rather only to determine whether they are
credible and, if so, whether they would have motivated the
particular operator as claimed."