Consolidation Coal Company

Plain-English summary

Glenn Mayhugh complained about dusty conditions while rock dusting was taking place at Consolidation Coal's Robinson Run No. 95 Mine. He alleged that a foreman's insulting remarks and related conduct were discriminatory because they followed his safety complaint. Consolidation Coal argued that the alleged conduct was not discriminatory action under section 105(c) of the Mine Act and moved for summary decision. Judge Gary Melick denied the motion, finding that humiliation or ridicule by management for protected activity could constitute adverse action and that the words, manner, and context of the remarks presented factual issues for a hearing. The order did not decide the merits or impose a penalty.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c)(1), 29 C.F.R. § 2700.67(b)
• Outcome: Consolidation Coal's motion for summary decision was denied, and the discrimination hearing was scheduled to proceed.
• Key point: Management humiliation or ridicule connected to protected activity may constitute adverse action, and whether particular remarks are actionable can be a factual question.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

March 22, 2001

GLENN MAYHUGH, : DISCRIMINATION PROCEEDING
Complainant :
: Docket No. WEVA 2001-8-D
v. : MORG CD 2000-06
:
CONSOLIDATION COAL COMPANY, : Robinson Run No. 95 Mine
Respondent : Mine ID 46-01318

           ORDER DENYING MOTION FOR SUMMARY DECISION
                               and
                     NOTICE OF HEARING SITE

     On March 12, 2001, Respondent Consolidation Coal Company (Consol) filed a motion

for a summary decision in this Discrimination Proceeding on the grounds that the Complaint
pursuant to Section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., (1994) the “Act,” does not, in essence, allege that it engaged in discriminatory or
retaliatory acts against the Complainant Glenn Mayhugh.1

    Under Commission Rule 67(b), 29 C.F.R. § 2700.67(b) “[a] motion for summary decision

shall be granted only if the entire record, including the pleadings, depositions, answers to

   1
          Section 105(c)(1) of the Act provides as follows:

           No person shall discharge or in any manner discriminate against or cause to be
   discharged or cause discrimination against or otherwise interfere with the exercise of the
   statutory rights of any miner, representative of miners or applicant for employment in any
   coal or other mine subject to this Act because such miner, representative of miners or
   applicant for employment has filed or made a complaint under or related to this Act,
   including a complaint notifying the operator or the operator's agent, or the representative
   of the miners at the coal or other mine of an alleged danger or safety or health violation
   in a coal or other mine, or because such miner, representative of miners or applicant for
   employment is the subject of medical evaluations and potential transfer under a standard
   published pursuant to section 101 or because such miner, representative of miners or
   applicant for employment has 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
   because of the exercise by such miner, representative of miners or applicant for employment
   on behalf of himself or others of any statutory right afforded by the Act.

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interrogatories, admissions and affidavits, shows: 1) that there is no genuine issue as to any
material facts; and 2) that the moving party is entitled to summary decision as a matter of law.”

    Consol accepts that the facts alleged by Mr. Mayhugh, in his complaint to the Department

of Labor's Mine Safety and Health Administration on April 10, 2000, and in his statement of April
17, 2000, as true for purposes of its motion. Consol's summary of the Complaint and statement is
not disputed and is as follows:

           In short, Mayhugh complained to his foreman, Mr. Roberts, (“Roberts”)
   about working in dusty conditions due to rock dusting taking place while they
   were changing out a pump. Mayhugh and Roberts both worked through the shift
   changing the pump under the same conditions. Mayhugh complained after the shift
   to the mine foreman, Mr. Tonkovich, who told Mayhugh he didn't have to work
   inby the rockdusters. The next day, while Roberts and Mayhugh were getting
   ready to start the shift with the rest of the crew, one miner asked Roberts if it was
   straightened out about working inby the rockdusters. Roberts said it was taken
   care of and for the men to not kick up dust and get it on Mayhugh. Mayhugh told
   Roberts that he felt that comment was harassment and that he didn't have to take
   it. The foreman said, “Yes, you'll take it and you'll like it you pussy lip son of a
   bitch.” Mayhugh said he wouldn't take it and the foreman said, “Yes, you will.”
   Mayhugh felt ill and took his clothes off. Roberts came into the change room and
   tried to settle Mayhugh down and tried to talk to him, but Mayhugh told Roberts to
   leave him alone and called Roberts “one of the most self-centered pompous people
   (he) had ever been around.” Roberts asked Mayhugh to get dressed and said they
   would work this out. Mayhugh said he was sick and wanted to go home. Roberts
   told Mayhugh he could go home if he wanted and would be excused.

    Consol argues that the noted events did not constitute discriminatory action within the

meaning of Section 105(c) because the term “discriminated against” is limited to retaliatory acts
such as suspension without pay, onerous work assignments, and letters of reprimand placed in
personnel files. Consol argues that Roberts never threatened Mayhugh, never discharged him,
never assigned him to an undesirable job or took any other action recognized as discriminatory in
nature.

    However, subjecting an employee to humiliation and ridicule by management for engaging

in activities protected by the Act and encouraging co-workers to also ridicule the employee for
such protected activities may indeed constitute adverse action and discrimination within the
meaning of Section 105(c)(1). In addition, if a causal connection can be medically established
between such intentional ridicule and humiliation and subsequent physical illness resulting in lost
work time, appropriate damages may be recoverable under Section 105(c).

   As the Complainant correctly observes, whether the words spoken, and the manner and


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context in which they were spoken, by Foreman Roberts to the Complainant were inoffensive
“kidding” or constituted actionable discrimination is a factual issue to be resolved at evidentiary
hearings.

   Under the circumstances Consol's Motion for Summary Decision must be, and is, denied.

The hearings will accordingly proceed as scheduled at 9:00 a.m., on Thursday, March 29, 2001,
at the Federal Correctional Institution, Training Center, Route 857, Greenbag Road,
Morgantown, West Virginia.

                                           Gary Melick
                                           Administrative Law Judge
                                           703-756-6261

Distribution: (Facsimile and Certified Mail)

Mr. Glenn Mayhugh, 609 Terrace Drive, Mannington, WV 26582 (Certified Mail)

Dennis O'Dell, United Mine Workers of America (UMWA), District 31, 310 Gaston Avenue,
Fairmont, WV 26554

Joyce Hanula, Esq., United Mine Workers of America, 8315 Lee Highway, Fairfax, VA 2215

Robert Vukas, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh, PA
15241

\mca

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