Dumbarton Quarry Associates

Plain-English summary

Anthony Saab alleged that Dumbarton Quarry Associates retaliated against him for raising equipment and highwall safety concerns with MSHA by laying him off for one day and then laying him off again when the quarry's water-truck work changed. The Commission held that the operator showed legitimate business reasons for both actions, including highwall abatement, seniority rules, water-truck repairs, and a decision to subcontract watering work. It affirmed the ALJ's finding that neither layoff violated the Mine Act's discrimination provision. One Commissioner dissented from the majority's treatment of evidence about the operator's prior responses to Saab's safety complaints.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The ALJ's dismissal of Saab's discrimination claims concerning both layoffs was affirmed.
• Key point: Protected safety complaints do not establish retaliation when substantial evidence supports independent operational reasons for the adverse action.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                     April 14, 2000

ANTHONY SAAB :
:
v. : Docket No. WEST 97-286-DM
:
DUMBARTON QUARRY ASSOCIATES :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                       DECISION

BY: Jordan, Chairman; Riley and Verheggen, Commissioners

    In this discrimination proceeding, Administrative Law Judge Richard Manning concluded

that Dumbarton Quarry Associates (“Dumbarton”) did not violate section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1994) (“Mine Act” or “Act”), when it
laid off employee Anthony Saab on March 18, 1997, and April 4, 1997. 20 FMSHRC 508, 517
(May 1998) (ALJ). The Commission granted Saab’s petition for discretionary review
challenging the judge’s determination. For the reasons that follow, we affirm.

                                            I.

                          Factual and Procedural Background

   Dumbarton operates a gravel pit in Fremont, California that makes aggregate and asphalt.

20 FMSHRC at 508. Saab was hired on June 20, 1995 from Teamsters Local 291 to drive a haul
pack1 and a water truck. Id. He complained in late July or early August 1995 that a loader
operator was slamming other employees’ vehicles with the bucket of his machine. Id. at 509; Tr.
I 10. On or about October 22, 1996, Saab sent a letter to Clay Buckley, the production operations
manager at the quarry, complaining that loader operator Steve Hamblin used his loader to pick up

   1
     Haul packs are large off-road dump trucks used to transport material from the pit to the

crusher. 20 FMSHRC at 508.

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Page 2

Saab’s haul pack. 20 FMSHRC at 509; Tr. I 14; Ex. C-1. The company’s safety officer spoke to
employees at the pit after the letter was sent and told Saab that that activity would never happen
again. 20 FMSHRC at 509; Tr. I 14, 16. The unsafe equipment operator was later given a “write
up” for other unsafe behavior. Tr. I 19.

    On March 5, 1997, Saab called the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) to complain that the highwall had become too high and steep, and
about the lack of berms on some of the haul roads. 20 FMSHRC at 509; Tr. I 19-21, 23-24, 58.
On March 10-12, 1997, MSHA inspected the quarry. 20 FMSHRC at 509; Ex. C-2. At the time
of the inspection, Saab raised safety issues about mobile equipment at the quarry with MSHA
inspectors. 20 FMSHRC at 509; Tr. I 31. MSHA issued 17 citations during the inspection,
including one citation concerning the condition of the highwall, one citation due to the lack of
berms on a roadway, and several citations for violative conditions on mobile equipment. 20
FMSHRC at 509; Ex. C-2. On March 18, the day Dumbarton cleaned the highwall benches with
a crane to abate the highwall violation, Saab and Larry Meyer, the other haul pack driver at
Dumbarton, were laid off for the day. 20 FMSHRC at 509; Ex. R-1; Tr. I 38, II 66-70.

     On March 25, Saab complained to Buckley that Mike Grant, an independent contractor,

threw a rock at him from behind. 20 FMSHRC at 510. Buckley spoke with Grant about the
incident, and Grant denied throwing the rock. Id. Buckley prepared an incident report with a
safety officer stating that, “due to the lack of eyewitnesses, ‘the event could not be proven as
stated by Saab.’” Id. (quoting Ex. C-4). On March 26, Saab videotaped Grant at work to try to
elicit an admission that Grant threw a rock at him. Id. Grant did not make any statements
concerning the incident, but told Saab that he should start looking for another job. Id. On April
3, Saab observed an unidentified person in a van photographing him, which he considered to be
harassment in retaliation for his complaints to MSHA. Id. (citing Tr. I 53-54, II 32); Tr. II 55.

    On April 2, Dumbarton began making arrangements to move the spare water truck to

another mine owned by its parent company, DeSilva Gates, in response to a memorandum from
DeSilva Gates stating, inter alia, that Dumbarton must remove all excess equipment from the
mine site by August 1. 20 FMSHRC at 512. On the afternoon of April 3, the operator of the
primary water truck complained that the truck was not operating properly, and later that
afternoon the truck broke down. Id. Dumbarton immediately arranged for delivery of a rental
truck to perform necessary watering work. Tr. II 84-85. On April 4, when Saab arrived at the
quarry, an independent contractor hired by Dumbarton was watering the roads with his own
truck. 20 FMSHRC at 511. Buckley informed Saab that Randy Heuvel, a more senior Teamster
at the quarry, had bumped him off the haul pack onto the water truck, and that Saab was laid off
effective that day. Id. at 510. Also on April 4, the spare water truck was moved from
Dumbarton to Curtner Quarry, another facility owned by DeSilva Gates. Id. at 511. The same
day, Grant prepared an estimate stating that repairing the primary water truck would cost the
company nearly $16,000. Id. at 513. DeSilva Gates’ chief financial officer advised Buckley not
to repair the primary water truck. Id. On April 7 or 8, Buckley also told Saab that the primary
water truck would not be usable for a few weeks. Id. at 511; Tr. I 62. Saab believed that he

                                    22 FMSHRC 492

Page 3

would be called back to work once the water truck was repaired, but the water truck was never
repaired and Saab was not called back to work on a full time basis. 20 FMSHRC at 511.
Dumbarton offered Saab work for a few days in June, 1997, but Saab turned these offers down
because he was employed elsewhere. Id. at 513. At some point after April 4, Dumbarton
decided not to repair the primary water truck, and permanently subcontracted its watering work.
Id. Within six months, all of DeSilva Gates’ quarries subcontracted their watering work. Id.;
Unpublished Order Den. Recons. at 1 (June 12, 1998).

    On April 10, 1997, Saab filed a discrimination complaint with MSHA pursuant to section

105(c)(2) of the Mine Act, asserting that his one-day layoff on March 18 and his layoff on April
4 were discriminatory.2 In a September 10, 1997 letter, MSHA informed Saab and Dumbarton
that, based upon its investigation, there had been no violation of section 105(c). On September
19, Saab brought the instant proceeding under section 105(c)(3) of the Act.3

    The judge determined that Saab’s one-day layoff on March 18 was not in retaliation for

his safety complaints. He credited Buckley’s testimony that Dumbarton laid off Saab and the
other haul pack driver because Buckley did not want anyone working in the pit on the day a crane
was used to abate the highwall violation. The judge rejected Saab’s contention that he should
have been allowed to bump into a water truck operator position. He further found that, even if
proven to have occurred, neither Grant’s alleged rock throwing nor the photographing of Saab by
an unidentified individual in a van was attributable to Dumbarton. 20 FMSHRC at 515.

     Regarding Saab’s layoff on April 4, the judge found that “Saab presented evidence that

his termination was motivated at least in part by his protected activity.” Id. at 514-15. However,
he determined that Dumbarton successfully rebutted the prima facie case. Id. at 515-17. The
judge rejected Saab’s suggestion that Dumbarton planned events in order to lay him off in
retaliation for his discussions with MSHA. Id. at 516. He also found that, although Buckley and
Grant had a close working relationship, Saab did not prove that they conspired to harass him or
cause him to be laid off. Id. at 515. Rather, the judge credited Buckley’s version of events: that
Dumbarton removed the spare water truck from the mine site due to Dumbarton’s new policy of
removing excess equipment from the mine; that Dumbarton removed its primary water truck
from the mine site after its chief financial officer refused to pay the high cost of repair; that the
operator of the primary water truck bumped Saab; and that Saab was laid off because he had the

   2
     Section 105(c)(2), 30 U.S.C. § 815(c)(2), provides, in pertinent part: “Any miner . . .

who believes that he has been discharged, interfered with, or otherwise discriminated against by
any person in violation of this subsection may, within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination.”
3
Section 105(c)(3), 30 U.S.C. § 815(c)(3), provides, in pertinent part: “If the Secretary,
upon investigation, determines that the provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the Secretary’s determination, to file
an action in his own behalf before the Commission . . . .”

                                     22 FMSHRC 493

Page 4

least seniority of the three Teamster employees at the mine. Id. at 511, 513, 516. The judge also
rejected Saab’s contention that Dumbarton’s decision to use an independent contractor to water
the roads did not make economic sense. Id. at 516.

   Finally, the judge issued an order denying Saab’s motion for reconsideration, in which he

acknowledged that his finding that DeSilva Gates’ other facilities had already subcontracted their
watering work by the time Dumbarton decided to do so may have been erroneous. Order Den.
Recons. at 1. However, the judge concluded that, even if De Silva Gates’ other facilities
subcontracted their watering work after Dumbarton, he would nonetheless have dismissed Saab’s
complaint. Id.

                                            II.

                                       Disposition

   Saab argues that the judge erroneously placed on him the burden of affirmatively

defending against the prima facie case. S. Supp. Br. at 2-5.4 Saab also contends that undisputed
record evidence mandates overturning several factual findings crucial to the judge’s dismissal of
Saab’s claims. PDR at 1-2, 11. Saab submits that the judge improperly restricted testimony
regarding Dumbarton’s history of adverse treatment of employees who make safety complaints.
S. Supp. Br. at 5-6. Saab further asserts that other employees affected by Dumbarton’s
abatement of the highwall violation on March 18, 1997 were offered work in other areas of the
quarry. Id. at 6-7. Finally, Saab challenges several of the judge’s factual findings, and maintains
that Dumbarton’s claim that it laid him off on April 4 because all its water trucks were
unavailable is pretextual. PDR at 2-3, 7-11.

    Dumbarton responds that the judge correctly determined that Saab engaged in protected

activity but that his layoff was in no part motivated by that activity. D. Resp. Br. at 7.
Dumbarton disputes Saab’s assignments of error related to the judge’s findings, and maintains
that Saab has failed to set forth adequate reasons to overturn the judge’s determination that
neither Saab’s one-day layoff on March 18 nor his layoff on April 4 violated section 105(c) of the
Mine Act. Id. at 9-18.

    A complainant alleging discrimination under the Mine Act establishes a prima facie case

of prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2799 (Oct. 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The

   4
     Pursuant to Commission Procedural Rule 75(a), 29 C.F.R. § 2700.75(a), Saab

designated his PDR as his brief. Saab also filed a supplemental brief.

                                    22 FMSHRC 494

Page 5

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. See Robinette, 3 FMSHRC
at 818 n.20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by proving that it also was motivated by the miner’s unprotected activity
and would have taken the adverse action for the unprotected activity alone. See id. at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,
642-43 (4th Cir. 1987) (applying Pasula-Robinette test).

   A.      Exclusion of Evidence

   Saab contends that the judge erroneously placed the burden of affirmatively defending the

case on him. S. Supp. Br. at 2-5. However, the judge’s conclusion of his analysis at the rebuttal
phase of the Commission’s discrimination framework foreclosed any affirmative defense
analysis. 20 FMSHRC at 517. At the rebuttal phase of the Commission’s discrimination
analysis, the burden remains on the complainant. See Robinette, 3 FMSHRC at 818 n.20.
Accordingly, we affirm the judge’s allocation to Saab of the rebuttal phase burden.

    We decline to consider Saab’s allegation (first raised in his supplemental brief) that the

judge improperly limited Saab’s testimony regarding Dumbarton’s alleged pattern of “failing to
respond to and adversely treating employees who exposed safety violations.” S. Supp. Br. at 5.
Under the Mine Act and the Commission’s procedural rules, review is limited to the questions
raised in the petition. 30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(g); see Broken Hill
Mining Co., 19 FMSHRC 673, 678 n.9 (Apr. 1997). Saab did not raise the issue of the judge’s
limitation of his testimony in his petition for discretionary review, nor did the Commission direct
review of this question sua sponte. Therefore, Saab’s challenge to the judge’s limitation of his
testimony is not properly before the Commission. Contrary to our dissenting colleague, we do
not consider Saab’s generalized plea that the judge’s decision was not based on an “accurate set
of facts” to even implicitly raise the evidentiary question which Saab subsequently addressed in
his brief. Nor do we share the concern of our concurring colleague that our holding here may
appear to be at odds with the broad reading we have accorded petitions filed in Fort Scott
Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1514 (Sept. 1997) and Rock of Ages Corp., 20
FMSHRC 106, 115 n.11 (Feb. 1998), aff’d in relevant part, 170 F.3d 148 (2d Cir. 1999). Unlike
those cases, the question of the exclusion of evidence does not follow analytically from the
sweeping language in Saab’s petition.

   B.      March 18 Layoff

    We are not persuaded by Saab’s challenges to the judge’s determination that Saab’s layoff

on March 18 did not violate section 105(c) of the Act. We find meritless Saab’s argument that
the judge erred in finding that Buckley’s decision to switch Heuvel to the water truck in February
was unrelated to Saab’s complaints. PDR at 8. Heuvel’s February move to the water truck
preceded Saab’s March safety complaints, and Saab conceded that no events prior to those
complaints motivated his layoffs by Dumbarton. Tr. I 11-17. Thus, Buckley’s decision to switch

                                    22 FMSHRC 495

Page 6

Heuvel to the water truck could not possibly have been motivated by Saab’s safety complaints.
Accordingly, we affirm the judge’s finding that Saab’s complaints and Heuvel’s move to the
water truck were unrelated.

   Regarding Saab’s claim that the collective bargaining agreement entitled him to bump

Heuvel, a more senior Teamster, off the water truck on March 18 (PDR at 8), we conclude that
substantial evidence5 supports the judge’s rejection of Saab’s claim. The judge found no
evidence that junior employees are contractually entitled to bump senior employees. 20
FMSHRC at 515. The union contract on its face permits senior Teamsters to bump junior
Teamsters from positions for which the senior Teamster is qualified, not vice versa. Ex. R-6 at 9.
Thus, Saab, as the least senior Teamster at Dumbarton, was not entitled to bump anyone. 20
FMSHRC at 515-16. Accordingly, we affirm the judge’s finding that Saab was ineligible to
bump on March 18, the day of his one-day layoff.

    We are also not convinced by Saab’s suggestion that Dumbarton’s provision of work to

other employees on March 18 was discriminatory. The judge found that Dumbarton laid off Saab
on March 18 because he was a haul pack operator and there was no available work for haul pack
operators that day due to the operator’s abatement of the highwall violation. Id. at 515. It is
undisputed that haul pack drivers at Dumbarton work beneath, and come within ten feet of, the
highwall. Tr. I 23, 113. Because it would have been dangerous for employees to work beneath
the area of the highwall being abated on March 18, that area was bermed off and other equipment
operators were assigned to other areas of the facility. 20 FMSHRC at 512; Tr. I 113, 143, II 69­

70. Buckley also testified that loader and dozer operators have other duties which do not
    necessitate being near the pit. Tr. II 70-71. In fact, Meyer, the other haul pack operator,
    conceded that the loader and dozer operators may also have been affected by the March 18
    highwall abatement, but that Dumbarton “probably had something else for them to do.” Tr. I

71. Buckley added that, when enough material is stockpiled — as was the case on March 18 —
    haul packs are not needed. Tr. II 69.6 Accordingly, substantial evidence supports the judge’s
    finding that Dumbarton laid off Saab on March 18 solely because there was no available work for
    haul pack drivers that day.

    5
    When reviewing an administrative law judge’s factual determinations, the Commission
    is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
    § 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable
    mind might accept as adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh
    Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
    U.S. 197, 229 (1938)).
    6
    Meyer and Saab admitted that neither was at the quarry on March 18 and that neither
    knows what happened there that day. Tr. I 143-44, II 52.

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Page 7

   C.      April 4 Layoff

    Saab submits that the primary water truck could have been partially repaired to operative

condition without great expense, and that Dumbarton decided “to not repair the truck which
broke down and to get rid of the spare truck, so it would have an excuse to fire [Saab].” PDR at
5; S. Reply Br. at 2-3 (citing Ex. C-2). Dumbarton states that its primary water truck had a
cracked frame, and that it would have been unreasonable for it to engage in only a partial repair,
particularly given the recent MSHA inspection. D. Resp. Br. at 13, 17.

    The Commission’s “function is not to pass on the wisdom or fairness of [an operator’s]

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.” Bradley v. Belva Coal
Co., 4 FMSHRC 982, 993 (June 1982). Here, while the judge made no specific finding regarding
Saab’s claim that Dumbarton improperly declined to partially repair the primary water truck, his
finding that the operator’s actions related to the primary water truck were in no part motivated by
Saab’s complaints implicitly rejected Saab’s contention. 20 FMSHRC at 517.

    The judge found that Buckley was aware of the numerous mobile equipment citations

MSHA had recently issued to Dumbarton. Id. at 516. He also found that MSHA advised
Dumbarton that cracked frames would be cited and that anything that was installed by the
manufacturer of equipment had to be operational. Id. at 513 (citing Tr. II 87). Buckley testified
that several factory items on the primary water truck were inoperative and required repair. Tr. II

87. While Saab testified that there were no defective items other than the pump, the judge stated
    that “a lot of the [items requiring repair] could be things that an operator of a piece of equipment
    wouldn’t even be aware of.” Tr. I 70. The judge also credited Buckley’s testimony regarding the
    events which preceded Saab’s termination, including that repairing the primary truck to comply
    with MSHA standards would cost nearly $16,000, and that Dumbarton did not repair the primary
    water truck because Ernie Lampkin, its chief financial officer, did not authorize the money
    necessary to make the repairs. 20 FMSHRC at 516; Tr. II 81. Finally, we note that Lampkin told
    Buckley that Dumbarton had to make many purchases to secure renewal of the conditional use
    permit allowing Dumbarton to continue operating, and that repairing the primary water truck was
    not a high priority. Tr. II 81, 88-89.

    In essence, Saab asks the Commission to overturn the judge’s decision to credit Buckley’s
    

    testimony related to Dumbarton’s reasons for declining to repair the primary water truck. A
    judge’s credibility determinations are entitled to great weight and may not be overturned lightly.
    Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co.,
    3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized that, because the judge
    “has an opportunity to hear the testimony and view the witnesses[,] he [or she] is ordinarily in the
    best position to make a credibility determination.” In re: Contests of Respirable Dust Sample
    Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729
    F.2d 713, 719 (11th Cir. 1984)).

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Page 8

   We find no compelling reason to overturn the judge’s credibility determination.

Accordingly, we conclude that substantial evidence supports the judge’s finding that
Dumbarton’s decision not to repair the primary water truck was based on valid business
considerations, not Saab’s protected activity.

   Saab also challenges the judge’s finding that the spare water truck was removed because

of a memorandum from DeSilva Gates stating that all excess equipment must be removed. PDR
at 7. Dumbarton maintains that the spare water truck was “essentially non-operational,” and was
removed as excess equipment. D. Resp. Br. at 5 n.1.

    The judge credited Buckley’s testimony that the spare water truck needed significant

repairs and was removed as excess equipment pursuant to a memorandum from its parent
company. 20 FMSHRC at 516. Buckley further testified at the hearing that Heuvel told him that
the spare water truck had “serious rear end problems” and would not pass inspection. Tr. II 79­

80. Buckley further explained that both the spare water truck and a third truck needed repair, and
    that they were “red tagged” before the inspection to prevent MSHA from inspecting them. Tr. II
    80, 114.

    As with the judge’s disposition related to the primary water truck, we find no basis for
    overturning his decision to credit Buckley’s testimony regarding Dumbarton’s reasons for
    removing the secondary water truck from the mine site. Accordingly, we conclude that
    substantial evidence supports the judge’s finding that the secondary water truck was removed
    pursuant to the memorandum from Dumbarton’s parent company.

    We are also unconvinced by Saab’s argument that, in light of the judge’s erroneous
    

    finding that DeSilva Gates’ other mines subcontracted their watering work before Dumbarton,
    the judge erred in finding that Dumbarton’s decision to subcontract its watering work was not
    motivated by Saab’s safety complaint. The judge based his dismissal of Saab’s complaint on
    record evidence, his crediting of Buckley’s testimony regarding the events of April 3 and 4, and
    his discrediting of Saab’s alternative explanations for his termination. 20 FMSHRC at 516.
    Furthermore, in his denial of Saab’s motion for reconsideration — where Saab raised the same
    argument he now raises before the Commission — the judge stated that his decision “is not
    affected by the order in which various quarries affiliated with DeSilva Gates began using
    independent contractors to water down roads.” Order Den. Recons. at 1.

    Dumbarton does not dispute that, at the time it contracted its watering work, the other two
    

    DeSilva Gates facilities had not yet done so. D. Resp. Br. at 14. Rather, it explains that DeSilva
    Gates subcontracted the watering work at its La Vista quarry after the engine broke on its water
    truck, and subcontracted the watering work at its Curtner quarry on the day that facility opened.
    Tr. II 118. Thus, evidence in the record undermines Saab’s suggestion that DeSilva Gates
    subcontracted the watering work at its other facilities to “cover its tracks to try to make the
    excuses for the layoff look legitimate,” (PDR at 5), and supports the judge’s decision to place

                                    22 FMSHRC 498
    

Page 9

little weight on the order in which DeSilva Gates’ facilities subcontracted watering work.
Accordingly, we find that the judge’s error in chronology is harmless.

    We are also not persuaded by Saab’s claim that subcontracting the watering work was

more costly than awarding this work to Teamster employees. Id. at 8-9. The judge discredited
Saab’s testimony regarding the cost of subcontracting, finding Saab’s testimony “not very
convincing because it was rather simplistic and did not consider all of the costs borne by an
employer.” 20 FMSHRC at 516. Buckley testified that the $60 per hour rate at which
Dumbarton initially contracted watering work included costs of maintenance and repair of
equipment, insurance, fuel, tires, and union benefits to the driver. Tr. II 91. Buckley also stated
that Dumbarton pays approximately $42 per hour straight time for Teamster water truck labor,
including benefits and social security, but that when the other costs borne by the company —
including repair, maintenance, depreciation, fuel, tires, and vehicle insurance — are considered,
the cost rises to approximately $53 to $60. Tr. II 108-11. Buckley testified that, while he agrees
that the cost of renting water trucks was “exorbitant,” all the water trucks were busy at the time
the decision to subcontract was made, and that only later was he able to negotiate a more
favorable rate. Tr. II 90-91, 110. Moreover, Saab does not dispute that Dumbarton’s continued
use of its employees to water the roads would have required that the operator pay the cost of
repairing the primary water truck. Thus, substantial evidence supports the judge’s rejection of
Saab’s claim that Dumbarton’s decision to subcontract its watering work did not make economic
sense.

    Saab next claims that the judge disregarded Grant’s bias towards Dumbarton and his

motivation to retaliate against Saab. S. Supp. Br. at 7. Saab testified that Grant called him
demeaning names and threw a rock at him. Tr. I 47-48. Saab also testified that Grant told him
approximately one week prior to his layoff that he “better hope the hall has some work down
there” and that he believed that this statement indicated that Grant knew Saab would be laid off
imminently. Tr. I 60. Saab believes that Grant’s actions are attributable to Dumbarton because
Grant frequently went into Buckley’s office, and because Grant had “made it known to everyone
that he was tight with Clay, and if he didn’t get along with you, you wouldn’t get along with
Clay.” Tr. I 60-61, II 54.

    As the judge stated, the endeavor Saab contends Dumbarton undertook to discriminatorily

terminate him would have required at least the cooperation of Buckley and Grant. 20 FMSHRC
at 516. The judge found that, while Buckley and Grant had a close working relationship, there
was no showing of collusion between them to discriminatorily terminate Saab. Id. at 515.
Buckley testified that Grant does not speak for him and that “Grant doesn’t tell [him] how to do
[his] job or how to run [his] operation. He’s just a mechanic who works on the site.” Tr. II 101.
Buckley further testified that discussions between himself and Grant mainly concerned
scheduling and paying for repair and maintenance of equipment. Tr. II 101-02. Regarding
Grant’s statement to Saab that he should be prepared to find other work, this statement was made
during a discussion videotaped during work hours by Saab on the day after Saab complained to
Buckley that Grant threw a rock at him. Tr. I 60. While Grant’s reasons for making this

                                    22 FMSHRC 499

Page 10

statement are unclear, Saab offered no other evidence that Grant possessed any knowledge that
Saab would be bumped. Accordingly, substantial evidence supports the judge’s finding that no
collusive relationship existed between Grant and Buckley.7

    On appeal, Saab attempts to weave his various assignments of error into a claim that

Dumbarton’s stated reasons for laying him off on April 4 were a pretext for his discriminatory
layoff, PDR at 3, challenging the judge’s finding that he was laid off due to lack of work and lack
of seniority. 20 FMSHRC at 517. It is not our role to reweigh the evidence or to enter findings
based on an independent evaluation of the record. Island Creek Coal Co., 15 FMSHRC 339, 347
(Mar. 1993). Furthermore, as we have recently recognized, “[t]he possibility of drawing two
inconsistent conclusions from the evidence does not prevent . . . [a] finding from being supported
by substantial evidence.” Secretary of Labor on behalf of Baier v. Durango Gravel, 21
FMSHRC 953, 958 n.6 (Sept. 1999) (citation omitted).

    Accordingly, since we have affirmed the challenged findings on substantial evidence and

credibility grounds, we thus conclude that substantial evidence supports the judge’s
determination that Saab’s April 4 layoff did not violate section 105(c) of the Act.

   7
      From our affirmance of the judge’s finding that Dumbarton’s decisions related to the

primary and secondary water trucks were not motivated by Saab’s protected activity, together
with his supported finding that no collusive relationship existed between Grant and Buckley, it
follows that we find no merit in Saab’s allegation (S. Reply Br. at 2) that Grant’s repair estimate
was inflated as part of a scheme to terminate Saab.

                                     22 FMSHRC 500

Page 11

                                          III.

                                      Conclusion

    For the reasons set forth above, we affirm the judge’s determination that neither

Dumbarton’s one-day layoff of Saab on March 18, 1997, nor its layoff of him on April 4, 1997,
violated section 105(c) of the Mine Act.

                                       Mary Lu Jordan, Chairman




                                       James C. Riley, Commissioner




                                       Theodore F. Verheggen, Commissioner




                                   22 FMSHRC 501

Page 12

Commissioner Beatty, concurring:

    I concur in the result reached by the majority and in all aspects of the majority’s decision

with the exception of Section II.A, concerning Saab’s claim that the judge improperly excluded
evidence concerning his prior protected conduct and Dumbarton’s response thereto. Based on
my review of the current Commission case law on this issue, it appears that the majority’s
holding is seemingly at odds with the broad reading this body has accorded petitions filed
pursuant to Rule 70 of the Commission’s procedural rules, 29 C.F.R. § 2700.70. See, e.g., Fort
Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1514 (Sept. 1997) and Rock of Ages Corp., 20
FMSHRC 106, 115 n.11 (Feb. 1998), aff’d in relevant part, 170 F.3d 148 (2d Cir. 1999).1 In this
respect, I share the concerns raised by Commissioner Marks, in his dissent.

    As a practical matter, I do not think it is appropriate for the Commission to engage in the

practice of broadly interpreting petitions for discretionary review in determining whether issues
have been properly raised before the Commission under Rule 70(d).2 This position is seemingly
at odds with the plain language set forth in Rule 70(d) which states in relevant part that “[e]ach
issue shall be separately numbered and plainly and concisely stated, and shall be supported by
detailed citations to the record, when assignments of error are based on the record, and by
statutes, regulations, or other principal authorities relied upon.” 29 C.F.R. § 2700.70(d)
(emphasis added).

   Clearly, Rule 70(d) mandates that parties filing petitions for discretionary review before

the Commission must do so with particularity. Unfortunately, it appears that in recent years we
have not monitored this situation closely enough to assure that parties adhere to this fundamental
requirement. The Commission’s decision in Fort Scott is a perfect example of how this
phenomenon has become all too commonplace. In order to insure objectivity in our decision
making process, we must eliminate the need to second-guess the parties in determining the issues
being appealed.

    I would reject Saab’s argument based upon the judge’s exclusion of evidence on

alternative grounds because I believe that Saab’s counsel waived the right to have the evidence
concerning his client’s prior safety complaints considered by the trier of fact as evidence of
discrimination. At the hearing, Saab’s attorney attempted to elicit testimony from him regarding
how Dumbarton treated him after he made complaints in late July or early August 1995 and on
October 22, 1996 about a fellow equipment operator’s unsafe actions. Tr. I 10-17. After an

   1
   Both the Fort Scott and Rock of Ages cases were decided prior to my tenure with the

Commission.
2
The only exception to this should be when a party appears pro se before the
Commission. In these types of cases, the Commission should continue its practice of granting
some leeway to the pro se litigant in interpreting the language of the petition for discretionary
review.

                                     22 FMSHRC 502

Page 13

objection by Dumbarton, Saab’s attorney stated that the proposed testimony regarding these
events was offered as background to establish Saab’s “prior history of reporting to his supervisor
what he considered unsafe conditions at the quarry” and for purposes of “credibility,” and that no
claim was being made that Saab “was laid off in retaliation for these [pre-March 5, 1997]
complaints.” Tr. I. 11, 17.

     Moreover, Saab’s attorney elected not to pursue further direct examination of him

regarding the 1995 incident. Tr. I 10-12. The judge did permit testimony as to Saab’s October
1996 safety complaint “strictly as background.” Tr. I 10, 13-16. Saab’s counsel then attempted
to clarify his intention in adducing the testimony related to his client’s prior complaints: “It’s
credible if there were actions in the past taken against [Saab] in retaliation for making safety
complaints, it’s more credible that later on there was action taken in retaliation for him making
safety complaints.” Tr. I 17. The judge then sustained Dumbarton’s objection when Saab’s
attorney asked him if he suffered adverse action after his October 1996 complaint. Tr. 17-18. By
characterizing this evidence solely as “background” with respect to Saab’s credibility, and not
relevant to Dumbarton’s motivation for laying off Saab, his counsel essentially waived the right
to have the evidence considered for anything other than the judge’s credibility determinations.3

                                         Robert H. Beatty, Jr., Commissioner




   3
       To the extent that the judge credited the version of events provided by Dumbarton’s

witnesses over that of Saab, he obviously determined that Saab’s testimony in this regard was not
entitled to dispositive weight on credibility questions. As the majority notes in its decision, a
judge’s credibility determinations are entitled to great weight and may not be overturned lightly.
Slip op. at 7, and cases cited. I find no compelling basis for overturning the judge’s credibility
determinations in this case.

                                    22 FMSHRC 503

Page 14

Commissioner Marks, dissenting:

     I disagree with the majority (slip op. at 5), and believe that Saab’s petition for

discretionary review adequately raised the issue of whether the judge erred in preventing Saab
from testifying on other instances in which Dumbarton had shown hostility to complaints about
safety violations. Furthermore, I agree with Saab that the judge incorrectly excluded this
evidence. Accordingly, I would vacate and remand the judge’s decision to permit Saab to present
his testimony on this matter.

    During the hearing, Saab’s counsel asked him whether any adverse action was taken

against him after he sent a letter to the operator complaining about certain safety issues. Tr. I 16.
The operator’s attorney objected to the question, on the ground that it had not been alleged that
those events were directly connected to the layoff at issue in this case. Tr. I 16-17. Saab’s
attorney argued that “[I]t goes to credibility. . . . [I]f there were actions in the past taken against
[Saab] in retaliation for making safety complaints, it’s more credible that later on there was
action taken in retaliation for [Saab] making safety complaints.” Tr. I 17. The judge nonetheless
sustained the objection, on the ground that Saab was not alleging that his April 4, 1997, layoff
was in retaliation for the earlier safety complaints. Tr. I 17-18.

    The judge ultimately concluded that Dumbarton successfully rebutted Saab’s prima facie

case, because he found that although the evidence showed that Saab had engaged in protected
activity, his termination was not motivated by that activity in any part. 20 FMSHRC at 515. In
concluding that the operator had successfully rebutted the prima facie case, the judge relied
heavily on Buckley’s testimony regarding the events of April 3 and 4, explicitly crediting it and
finding it more persuasive than Saab’s. Id. at 516. Because he made this credibility
determination without hearing evidence of prior adverse actions taken against Saab — evidence
which conceivably could affect that credibility determination — the judge erred.

    Of course we do not know the specific evidence of past adverse action that Saab would

have offered had the judge permitted the line of questioning Saab’s counsel attempted to pursue.
I therefore will not speculate as to whether these actions allegedly taken by the operator after
Saab wrote his letter containing safety complaints would have demonstrated its animus towards
Saab’s protected activity to such an extent that the judge no longer would have believed
Buckley’s testimony that he decided to use a contractor to water the roads simply because of
problems with his water trucks. Nonetheless, I am reluctant to affirm the judge’s finding of no
discrimination, based in large part on this testimony, when the judge did not take the opportunity
to consider the evidence of Dumbarton’s animus to Saab’s previous safety complaints which he
excluded and factor it into his decision as to whether to believe Buckley.

    While this evidentiary issue was not as clearly stated in Saab’s petition for review as it

could have been, there is more than enough in that petition to find that the issue is implicit in,
and related to, the issues that the petition plainly raises, so therefore the issue is properly before
us. See Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1514 (Sept. 1997) (construing

                                      22 FMSHRC 504

Page 15

Secretary of Labor’s petition to reach three other issues implicit in single issue that was expressly
raised); Rock of Ages Corp., 20 FMSHRC 106, 115 n.11 (Feb. 1998) (reaching three issues not
expressly raised by operator but sufficiently related to other issue that was only generally raised),
aff’d in pertinent part, 170 F.3d 148 (2d Cir. 1999). I do not believe that we should hold
individual miners to a higher standard than we hold the Secretary of Labor or large mine
operators in fashioning their PDRs.

     According to his petition, Saab seeks to have the judge’s decision “overturned,” asserting

that it was not based on “an accurate set of facts.” PDR at 2, 11. He argues that “it is only fair
that [he] be granted the opportunity to have the decision reviewed by the Commission and
decided based on conclusions that can reasonably be made from the correct set of facts.” Id. at

11. Implicit in his request that the decision be based on a correct and accurate set of facts is
    Saab’s contention that the judge’s evidentiary ruling prevented development of a record of those
    facts. Consequently, I believe Saab sufficiently raised the evidentiary issue in his PDR for
    purposes of our review.

     As for the merits of the issue, the question is one of whether the judge abused his
    

    discretion when he refused to permit Saab to offer evidence about the operator’s prior adverse
    actions against him after an earlier safety-related complaint. See General Elec. Co. v. Joiner, 522
    U.S. 136, 141-43 (1997) (confirming that the abuse of discretion standard is the appropriate
    standard of review of a district court’s evidentiary rulings); In re: Contests of Respirable Dust
    Sample Alteration Citations, 17 FMSHRC 1819, 1843-44, 1853-54, 1864, 1881-82 (Nov. 1995),
    aff’d 151 F.3d 1096 (D.C. Cir. 1998) (applying abuse of discretion standard in reviewing trial
    judge decisions involving the qualification and crediting of expert witnesses and the exclusion of
    trial testimony). With regard to the exclusion of testimony, it has been stated that a trial court
    abuses its discretion in so doing when its decision is based on, among other things, “‘an
    erroneous view of the law.’” Lewis v. Telephone Employees Credit Union, 87 F.3d 1537, 1557
    (9th Cir. 1996) (quoting Beech Aircraft Corp. v. United States, 51 F.3d 834, 841 (9th Cir. 1995)).

    A review of relevant case law quickly reveals that the judge erroneously applied the law of
    

    evidence in prohibiting Saab from testifying on Dumbarton’s previous reactions to his safety
    complaints. Many of the federal appellate courts in recent years have overturned trial judge
    rulings that evidence of a defendant’s prior discriminatory behavior is inadmissible where those
    actions, while not the central cause of action, were offered to prove the defendant’s discriminatory
    motive in subsequently discriminating against a plaintiff. See, e.g., Robinson v. Runyon, 149 F.3d
    507, 512-14 (6th Cir. 1998) (finding abuse of discretion in excluding evidence intended to show
    circumstantial case of discrimination because reviewing court was “firmly convinced that a
    mistake” was made). Courts have done so despite acknowledging that “a trial court’s exclusion of
    evidence is entitled to substantial deference on review.” Hawkins v. Hennepin Technical Ctr.,
    900 F.2d 153, 155 (8th Cir.), cert denied, 498 U.S. 854 (1990) (citation omitted).

    A leading case on the question of the admissibility of prior discriminatory acts is Estes v.
    Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988), in which a black employee brought a race

                                     22 FMSHRC 505
    

Page 16

discrimination claim after he was discharged from a car dealership. At trial, the jury ruled
against him, and on appeal he argued, among other claims, that the trial court had improperly
excluded evidence of other discriminatory acts of the dealership. Id. at 1102. The Eighth Circuit
held that the judge had erred in excluding evidence of prior acts of discrimination against black
customers. Id. at 1104. The court stated that “[i]t defies common sense to say . . . that evidence
of an employer’s discriminatory treatment of black customers might not have some bearing on
the question of the same employer’s motive in discharging a black employee.” Id. The court
also ruled that the judge improperly excluded evidence that a Ford manager had made racist
remarks. Id. While acknowledging that the plaintiff was not claiming relief for having been
insulted, the court reasoned that he was trying to prove by a preponderance of the evidence that
he was discharged because of his race, and testimony that his supervisors occasionally used racial
insults was probative of his claim. Id.

    The Eighth Circuit criticized the trial court for limiting the plaintiff to proving the

dealership’s discriminatory intent solely from the facts of his own termination. According to the
Court, evidence of the prior discriminatory acts could have provided evidence of discriminatory
animus. Id. at 1105. The court emphasized that:

                   The effects of blanket evidentiary exclusions can be
           especially damaging in employment discrimination cases, in which
           plaintiffs must face the difficult task of persuading the fact-finder
           to disbelieve an employer’s account of its own motives. . . .
           Circumstantial proof of discrimination typically includes
           unflattering testimony about the employer’s history and work
           practices — evidence which in other kinds of cases may well
           unfairly prejudice the jury against the defendant. In discrimination
           cases, however, such background evidence may be critical for the
           jury’s assessment of whether a given employer was more likely
           than not to have acted from an unlawful motive.

Id. at 1103.1 These evidentiary rulings, along with other trial court errors, were the basis of the
Court’s decision to remand the case for a new trial. See also Robinson, 149 F.3d at 513-14
(relying on Estes to find admissible evidence which made existence of employer’s discriminatory
motive more probable, because even though by itself it could not prove motive, it was “a possible
link”); Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3rd Cir. 1995) (“discriminatory comments
by nondecisionmakers, or statements temporally remote from the decision at issue, may properly
be used to build a circumstantial case of discrimination”) (citations omitted).

   1
      Admissibility of such evidence is even more appropriate in Commission discrimination

cases, because they are the subject of bench, not jury, trials. In reaching their decisions, trial
judges, unlike juries, are expected to be able to exclude from their minds improper inferences
from the evidence. See Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.
1981).

                                    22 FMSHRC 506

Page 17

     Equally instructive is the decision in Hunter v. Allis-Chalmers Corp., Engine Div., 797

F.2d 1417 (7th Cir. 1986), where an employer appealed a trial court verdict finding that it had
discriminated against an employee by harassing him because of his race and then firing him in
retaliation for complaining of the harassment. Rejecting the employer’s appeal of the judge’s
ruling permitting evidence of harassment against other black workers besides the plaintiff, the
Seventh Circuit recognized that,

           [g]iven the difficulty of proving employment discrimination — the
           employer will deny it, and almost every worker has some
           deficiency on which the employer can plausibly blame the worker’s
           troubles — a flat rule that evidence of other discriminatory acts by
           or attributable to the employer can never be admitted without
           violating [Federal] Rule [of Evidence] 403 would be unjustified.

Id. at 1423. The Court held that the evidence of harassment at issue was relevant in rebutting the
employer’s defense that it fired the plaintiff for cause. Id. The Court noted that the evidence
increased the probability that the reasons given by the defendant (that the plaintiff’s job
performance was deficient) was “merely the pretext for the harsh discipline meted out to him by
a management irritated by this complaints about racial harassment.” Id. at 1424.

     In light of these rulings and others, I believe it was clear error for the judge to prohibit

Saab from testifying on Dumbarton’s previous reactions to his safety complaints, particularly in
light of the judge’s acceptance of Dumbarton’s claim that it laid off Saab for cause. See
Hawkins, 900 F.3d at 155-56 (“Because an employer’s past discriminatory policy and practice
may well illustrate that the employer’s asserted reasons for disparate treatment are a pretext for
intentional discrimination, this evidence should normally be freely admitted at trial.”) (citing
McDonnell Douglas v. Green, 411 U.S. 792, 804-05 (1973)); Mullen v. Princess Anne Volunteer
Fire Co., 853 F.2d 1130, 1133 (4th Cir. 1988) (evidence of discrimination unrelated to alleged
discriminatory action admissible because of value of evidence in showing employer’s true state
of mind). It has been recognized that where, as here, the complainant is relying heavily upon
circumstantial evidence to carry his or her burden of proof of discrimination, the absence of even
one piece of such highly relevant evidence may make the difference in the factfinder’s mind as to
the employer’s true motivation in taking adverse action against the complainant. See Robinson,
149 F.3d at 515. Consequently, I would remand this case to the judge so that Saab can fully and
fairly testify regarding his experiences with Dumbarton and its reaction to his previous safety
complaints.

                                          Marc Lincoln Marks, Commissioner


                                     22 FMSHRC 507

Page 18

Distribution

Paul H. Melbostad, Esq.
Goldstein, Gellman, Melbostad, Gibson & Harris, LLP
100 Van Ness Avenue, 21st Floor
San Francisco, CA 94102

Robert D. Peterson, Esq.
3300 Sunset Boulevard, Suite 110
Rocklin, CA 95677

Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

                                 22 FMSHRC 508