Western Fuels Utah, Inc.

Plain-English summary

Gary Belveal, a roof bolter and union safety committee chairman at Western Fuels Utah's Deserado Mine, filed Mine Act complaints about the company's accident program, injury reporting, and mine safety conditions. He alleged that the company placed him on temporary total disability instead of modified duty after a knee injury and reprimanded him after he raised an entry-width concern. Judge T. Todd Hodgdon found that Belveal engaged in protected activity, but found no discriminatory motivation and concluded that the medical leave and reprimand were not caused by that activity. The complaint was dismissed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was dismissed.
• Key point: Protected safety activity does not establish discrimination without evidence that it motivated the employer's adverse action.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF A D M INISTRA TIV E LA W JUDGES
                        2 SK YLINE, 10 th FLOOR
                         5203 LEESBURG PIK E
                   FA LLS CHURCH, V IRGINIA 22041

                     November 28, 1995

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-147-D
ON BEHALF OF GARY BELVEAL, : DENV CD 94-03
Petitioner :
v. : Deserado Mine
: Mine ID 05-03505
WESTERN FUELS UTAH, INC., :
Respondent :

                            DECISION

Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Complainant;
J. Keith Killian, Esq., Keith Killian &
Associates, P.C., Grand Junction, Colorado, for
Respondent.

Before: Judge Hodgdon

 This case is before me on a complaint of discrimination

brought by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), on behalf of Gary Belveal
against Western Fuels Utah, Inc., under Section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 815(c).
For the reasons set forth below, I find that, while Mr. Belveal
engaged in activities protected under the Act, the Respondent was
not motivated in any part by that activity when Mr. Belveal was
placed on temporary total disability or reprimanded.

 A hearing was held on July 24 and 25, 1995, in Grand

Junction, Colorado. MSHA Inspectors Art C. Gore, Jr., and Gary
W. Jones, miners Charles Cudo, John J. Jones, Curtis Roy and
Bradley K. Allen, and the Complainant testified in support of his
case. Western Fuels employees Roland Heath, Terry Gunderson and

Gelean H. Bell, and David F. Hamilton testified for the
Respondent. In addition, deposition testimony of Paul W. Miller,
M.D., (Govt. Ex. 1), and Ronald C. Pinson, M.D., (Resp. Ex. A),
was presented. The parties also submitted briefs which I have
considered in my disposition of this case.

Page 2

                     FACTUAL SETTING

 The basic facts are not disputed. As of the hearing, Gary

Belveal had been employed by Western Fuels for nine and one-half
years. Most of that time, and specifically during the fall of
1993 that is significant to this case, he worked as a roof
bolter. Throughout his employment with Western Fuels he was an
active member of the union. During the period when the
activities resulting in this case occurred, he was the chairman
of the union safety committee.

 On September 28, 1993, Mr. Belveal injured his right knee

stepping off of his roof bolting machine. He reported the
incident to his immediate supervisor, but did not seek medical
attention and continued performing his job as a roof bolter.

 Prior to, and during, this period, Mr. Belveal had been

participating in discussions between the union and management
concerning the company=s Accident, Violation, Reduction Program
(AVRP) which had apparently resulted in some miners being
reprimanded by the company for accidents that they reported. It
was the union=s position that this program was similar to one
which Consolidation Coal Company had in effect at its Dilworth
Mine and which a Commission judge had determined to be facially
discriminatory in violation of Section 105(c) of the Act.1

 Unable to reach an accord about the implementation of the

AVRP, the Complainant, with other union members, filed a 105(c)
complaint concerning the program with the local MSHA office on
October 6, 1993. On or about October 8, Mr. Belveal informed
mine management that the complaint had been filed.

 In the meantime, Mr. Belveal=s knee had not shown any signs

of improvement and he decided to go to the doctor. On
October 11, he told Gelean Bell, a safety specialist who handled
workman=s compensation claims for the company, that he wanted to
see a doctor the next day. She told him to tell his supervisor
when he was going so that his supervisor could accompany him to
the appointment.

 1
   Swift et al v. Consolidation Coal Co., 14 FMSHRC 361

(Judge Melick, February 1992). This decision was subsequently
reversed by the Commission. Swift et al v. Consolidation Coal
Co., 16 FMSHRC 201 (February 1994).

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Page 3

 Mr. Belveal made an appointment with Dr. Miller for 9:00

a.m. on October 12. He worked the midnight shift on October 11-
12, getting off of work at 7:00 a.m. He did not tell his
supervisor that he had a doctor=s appointment, although he did
mention it to Ed Daniels of the safety office in the course of
discussing some non-related safety issues with him prior to
leaving for the appointment.

 Mr. Belveal went to his appointment with Dr. Miller

unaccompanied by anyone from the mine. Dr. Miller diagnosed that
the Complainant had a strained anterior cruciate ligament and
prescribed a knee brace and Relafen, an anti-inflammatory
medication. He also instructed Mr. Belveal not to do a lot of
bending, stooping or lifting, to work only on flat surfaces and
to return to see him in a week.

 During the visit, Dr. Miller had a telephone conversation

with Roland Heath, the mine superintendent, concerning what Mr.
Belveal would do on his return to work. While all agreed that he
would return to full time work, but not full duty, i.e. that he
would be working full time but not performing all of the
functions required of a roof bolter, there was confusion as to
exactly what type of job he would be performing. Notwith-
standing, Mr. Belveal returned to work as a roof bolter. His
partner, Brad Allen, tried to do as much as he could to help him.
Other than initally discussing it with Mr. Gunderson, Mr. Belveal
made no further attempts to be placed in some other type of work.

 Mr. Belveal returned to see Dr. Miller on October 19, as

scheduled. Dr. Miller concluded that his knee had not improved
and referred him to an orthopedic specialist. When the doctor
called Gelean Bell to tell her what he was doing, she told him to
tell Mr. Belveal that he was on disability. In his chart, Dr.
Miller indicated that Mr. Belveal could return to work the next
day, subject to the findings of the orthopedist.

 The Complainant saw Dr. Pinson, the orthopedist, the next

day, October 20. Dr. Pinson determined that Mr. Belveal should
not return to work until he saw him again on October 28. When
Dr. Pinson examined Mr. Belveal on October 28, he concluded that
the Complainant could return to work. During the period from
October 20 to October 28 that he did not work, the Complainant
received workers= compensation wage loss benefits for total
temporary disability.

 Because he had not been given duties driving a tractor as

had fellow roof bolters Chuck Cudo, when he injured his hand, and
John Jones, when he injured his left knee, Mr. Belveal began
inquiring into the mine=s practices concerning injuries. He

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concluded that the company was not properly reporting injuries to
MSHA and discussed the matter with Bob Hanson, the safety
director. Concurrently, he filed the instant 105(c) complaint on
November 15, 1993. He also filed a 103(g) complaint2 concerning
injury reporting with MSHA on November 24, 1993. As a result of
the 103(g) complaint, MSHA investigated the matter and issued two
citations to the company for improperly reporting injuries.
(Govt. Exs. 3A and 3B.)

 Sometime during the last week of November and the first week

of December 1993, Mr. Belveal and Mr. Allen brought to the
attention of their foreman a concern that some of the entries in
the mine were in excess of the permitted width. Not receiving

satisfaction from him, they took the matter to their shift

 2
   Section 103(g)(1) of the Act, 30 U.S.C. ' 813(g)(1),

provides, in pertinent part:

      Whenever a representative of the miners . . . has
 reasonable grounds to believe that a violation of this
 Act or a mandatory health or safety standard exists, or
 an imminent danger exists, such . . . representative
 shall have a right to obtain an immediate inspection by
 giving notice to the Secretary . . . of such violation
 or danger. Any such notice shall be reduced to
 writing, signed by the representative . . . and a copy
 shall be provided the operator or his agent no later
 than at the time of the inspection . . . . The name of
 the person giving such notice and the names of
 individual miners referred to therein shall not appear
 in such copy or notification . . . .




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foreman, Mr. Gunderson. He proposed a solution that they found
reasonable.

 The matter apparently would have ended there, except that in

a discussion with Bob Hanson about safety matters in general,
Belveal and Allen used the entries as an example of safety
problems in the mine. Evidently not aware that they were
satisfied with Gunderson=s solution, Hanson called Mr. Heath into
the meeting and apprised him of the situation.

 Mr. Heath, believing that the two miners had taken the

specific problem from Gunderson to the Safety Director, rather
than to him, gave the miners oral reprimands on December 3, 1993,
for not following the chain of command. Although the reprimands
were oral, they were noted in the miners=s personnel files as
disciplinary letters.

 On December 5, the two miners mailed a 105(c) complaint to

MSHA concerning the reprimands. On December 6, Belveal and Allen
informed Mr. Heath that they did not agree with the reprimands
and were invoking the grievance procedures to have them removed.
After several steps in the grievance procedure, the letters were
removed from Belveal=s and Allen=s files on January 20, 1994. In
February 1995, Belveal and Allen wrote to MSHA stating that they
wished to drop the 105(c) action.

         FINDINGS OF FACT AND CONCLUSIONS OF LAW

 In order to establish a prima facie case of discrimination

under Section 105(c) of the Act,3 a complaining miner bears the
burden of establishing (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 2768 (1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (2d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (1981); Secretary on behalf of
3
Section 105(c) of the Act provides that a miner cannot be
discharged, discriminated against or interfered with in the
exercise of his statutory rights because: (1) he Ahas filed or
made a complaint under or related to this Act, including a
complaint . . . of an alleged danger or safety or health
violation;@ (2) he Ais the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101;@ (3) he Ahas instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding;@ or, (4) he has
exercised Aon behalf of himself or others . . . any statutory
right afforded by this Act.@

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Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (1984); Secretary
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983).

 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 the protected activity.
Pasula, 2 FMSHRC at 2799-800. 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 for the unprotected activity alone. Id. at 2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Const. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission=s Pasula-Robinette test).

 In the Amended Complaint of Discrimination filed by the

Secretary on behalf of Mr. Belveal it was alleged that he
suffered the following acts of discrimination: (1) As a result of
filing a 105(c) complaint on October 6, 1993, he was placed on
temporary total disability on October 19, 1993, for a knee injury
received on September 28, 1993, rather than being placed on light
duty like other miners; and (2) As a result bringing a safety
problem to the attention of the mine manager, he received
disciplinary action on December 3, 1993.

 The allegations of discrimination are phrased somewhat

differently in his post-hearing brief. There he argues:

 When Mr. Belveal injured his knee and subsequently saw
 Dr. Miller, he was to be placed on alternate duty, as
 Cudo and Jones had been. Instead, Belveal was returned
 to his original job of roof bolting and saw no
 improvement in his knee. As a result of being refused
 modified duty, Mr. Belveal was forced to be placed on          temporary

a reprimand was certainly not justified.

(Br. at 17.)

 There is no doubt that filing 105(c) complaints, 103(g)

investigation requests and raising safety concerns with
management, either as a representative of miners or individually,
is activity protected under the Act. Therefore, I find that Mr.
Belveal engaged in protected activity. However, I conclude that,
with respect to his knee injury, Mr. Belveal did not suffer any
adverse action and that, even if he did, it was not related to
his protected activity. I further conclude, with respect to the

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reprimand, that it was not in any part motivated by his engaging
in protected activity.

 The Complainant waited two weeks to decide that he needed

medical attention for his knee. When he did decide to go, he
failed to follow company policy and notify his supervisor, even
though he knew he was supposed to do that, he had been reminded
the day before that he was supposed to do that and he knew that
someone from management was supposed to accompany him to the
doctor. Consequently, I find that any confusion over his work
status after his first visit to the doctor was caused by him.

 The two other instances of roof bolters being assigned to

drive a tractor are distinguishable from his. In the first
place, a supervisor had accompanied both miners to the doctor so
that both management and the miner were aware of the limitations
established by the doctor. In the second place, both miners
specifically asked for other assignments when they returned to
work.4

 On the other hand, since no one from the company went to the

doctor=s with Mr. Belveal, the evidence is confused, although not
necessarily contradictory, as to what Mr. Belveal could do on his
return. Dr. Miller testified that A[i]t was my understanding
that he would not be doing his regular job.@ (Govt. Ex. 1, p.
12.) Mr. Heath testified that:
. . . I suggested to the doctor that, you know, as a
roof bolter that he works on a platform, and I
explained to him how the bolter was laid out and
basically what he could do, and as we discussed that
more and more the doctor felt, or my understanding of
the conversation, was that the platform would be the
best place for him, and I reached the same thought.

(Tr. 416.) Mr. Heath further stated AI told him [Dr. Miller]
that other jobs that he normally would do along with the roof
bolter, that we would see that someone else did that.@ (Tr.
419.) Finally, the Complainant testified that AI was under the
impression I was to return to something other than my regular
job, which was not roof bolting.@ (Tr. 240.)

 4
   Mr. Cudo=s amputated finger obviously left no doubt that

he could not return to roof bolting, even if he had not requested
other work.

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 When Mr. Belveal returned to work that night, he questioned

Terry Gunderson about returning to roof bolting. He testified
that:

 I talked to him a little bit about it, indicated that I
 didn=t think that the doctor was -- you know, going
 back and running the bolter was really what the doctor
 had in mind as far as taking care of my knee, and he
 indicated to me that he had talked with Mr. Heath about
 that, and he had been told that everything was okay and
 that I was basically to take care of it.

(Tr. 248.) He further testified that he did not recall Mr.
Gunderson offering any other type of work in the mine.

 On the other hand, Terry Gunderson testified as follows

concerning Mr. Belveal=s return to work:

 Q. . . . Did you have a conversation with Gary Belveal
 on October 12 at the beginning of the swing shift about
 his trip to the doctor?

 A.   Yes, I did.

 Q. Did he advise you about what he understood had
 occurred as far as the doctor visit?

 A. No. Somehow I knew, and I believe Roland had said
 something to the effect of climbing and walking up a
 grade.
 Q. Okay. That would be problems that he would have?

 A.   Yes.

 Q. Okay. Did you discuss with Gary Belveal the fact that
 you understood he had some limitations?

 A. I went out and I told Gary that I had other work
 available.

 Q.   Okay.   Did you discuss what these other jobs were?

 A.   No.

 Q. Okay. You told Gary that he could do work other than
 roof bolting for you?

 A.   That I had other work available, yes.

 Q. Okay. And did Gary Belveal ask to be assigned to some
 job other than a roof bolter?

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 A.   No.

(Tr. 460-61.)

 There is no doubt that on his release, Dr. Miller only

limited Mr. Belveal to working on level surfaces. This is
certainly consistent with Mr. Heath=s recounting of his
discussion with Dr. Miller that a roof bolter worked on a level
platform and is not refuted by the doctor=s deposition.

 More significantly, by his own account, Mr. Belveal made no

complaint or request not to return to roof bolting after his
initial discussion with Mr. Gunderson. Furthermore, Mr.
Belveal=s failure to recall whether Mr. Gunderson offered him
other work is particularly consequential in view of the fact that
Mr. Belveal went to great lengths to document his case as
evidenced by the three file folders of notes he brought with him
to the hearing and one would not expect him to be unable to
recall so crucial a matter.

 Finally, while there is evidence that Mr. Belveal=s knee

injury was not aggravated by his return to roof bolting, the
record is silent as to whether the extra week prevented the knee
from healing and, therefore, caused him to be placed on temporary
total disability. There is no doubt that Dr. Pinson=s taking the
Complainant off of work for eight days was purely a medical
decision in no way influenced by the company.

 Accordingly, I conclude that Mr. Belveal=s return to roof

bolting was not an adverse action by the company, but was mainly
the result of his actions. I further find that, based on the
evidence in this record, Mr. Belveal would have been put on
temporary disability the next week even if he had been given
other work, so that even if returning him to roof bolting was an
adverse action, it did not result in his being placed on
disability. Lastly, even if returning the Complainant to his job
was an adverse action which did cause him to be placed on
temporary disability, there is nothing, other than a closeness in
time, to connect his filing of the 105(c) complaint on behalf of
all miners with the adverse action of which he complains.

 Nor is there any evidence that the reprimand received by Mr.

Belveal for not following the chain of command was related to any
of his complaints or safety questions. Viewing the matter two
years after it occurred, it is apparent that Mr. Heath
misunderstood the situation when he issued the reprimand.
However, there is no evidence that he deliberately misunderstood
or that the reprimand was merely a subterfuge to get back at Mr.
Belveal for his complaints and investigation requests.

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 In addition, I do not find it significant that at the first

step grievance proceeding Mr. Heath suggested that the 105(c)
complaints over the reprimands be withdrawn if he removed the
reprimands from Messrs. Belveal=s and Allen=s files. That seems
to be a reasonable quid pro quo. Furthermore, it appears that
the only reason that the complaints were not withdrawn until over
a year later was so that the miners could use them as leverage in
negotiating with the company over exactly what the chain of
command would be.

                          ORDER

 I conclude that Mr. Belveal engaged in protected activity

but that he either was not discriminated against by the company
for engaging in that activity, or if he was treated adversely, it
was not because he engaged in the protected activity but because
of his own real or perceived misconduct. Accordingly, it is
ORDERED that the complaint of the Secretary filed on behalf of
Gary Belveal against Western Fuels Utah, Inc., under Section
105(c) of the Act, is DISMISSED.

                            T. Todd Hodgdon
                            Administrative Law Judge

Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver,
CO 80202-5716 (Certified Mail)

J. Keith Killian, Esq., Keith Killian & Associates, P.C., Western
Fuels Utah, Inc., 225 North Fifth, Suite 1010, P.O. Box 4848,
Grand Junction, CO 81502 (Certified Mail)

/lt

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