Secretary of Labor, MSHA on behalf of Clinton Ray Ward v. Argus Energy WV, LLC

Plain-English summary

The Secretary alleged that Argus Energy fired chief electrician Clinton Ray Ward because he raised staffing and water-related safety concerns at Deep Mine No. 8. Judge William S. Steele found that the evidence did not credibly establish Ward's claimed safety reports or show that management knew of protected activity. He also held that requiring Ward to ride underground with his crew was not an adverse action because it did not change his pay or title and was intended to improve supervision. The judge found that Argus had legitimate performance reasons for the discharge, including unfinished work, excessive time on the surface, electrical mistakes, and failures involving dust-sampling equipment. The discrimination complaint was denied and the temporary reinstatement order was dissolved.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: The discrimination complaint was denied and Ward's temporary reinstatement was dissolved.
• Key point: A discrimination claim fails when protected activity and management knowledge are not proved and the operator establishes documented, independent performance reasons for discharge.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER

875 GREENTREE ROAD,
SUITE 290

PITTSBURGH, PA 15220

TELEPHONE: (412)
920-2682

FAX: (412) 928-8689

December 27, 2013

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA), on

behalf of CLINTON RAY WARD,

Complainant,

v.

ARGUS ENERGY WV, LLC,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. WEVA 2013-597-D

MSHA Case No. PINE-CD-2012-02

Mine ID: 46-08994

Mine: Deep Mine No. 8

DECISION AND
ORDER

DENYING DISCRIMINATION
COMPLAINT

AND DISSOLVING
THE TEMPORARY REINSTATEMENT

Appearances:               John M. Strawn, Esq., Office of
the Solicitor, U.S. Department of Labor, Philadelphia, PA on behalf of Complainant
Clinton Ray Ward

Mark E. Heath, Esq., and
Dennise R. Smith, Esq., Spilman, Thomas & Battle, PLLC, Charleston, WV for
the Respondent

Before:                                    Judge Steele

This case is before me upon the complaint filed
by the Secretary of Labor (“Secretary”), pursuant to Section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 801, et.
seq., and 29 C.F.R. § 2700.45. The Secretary, on behalf of Complainant
Clinton Ray Ward (“Ward”), alleges that Argus Energy WV, LLC (“Argus” or
“Respondent”), violated Section 105(c)(1) of the Act when it discharged Ward on
June 1, 2012.

On June 9, 2012, the Secretary filed
an Application for Temporary Reinstatement of Ward to his former position with Argus
at its Deep Mine No. 8 (“the Mine”) pending final hearing and disposition of
the case.

A hearing was held on his request for temporary
reinstatement on July 27, 2012 in Charleston, West Virginia. Under the legal
standard of a Temporary Reinstatement hearing, I found that Ward’s complaint
was not frivolously brought, and I issued an Order temporarily reinstating him
on August 1, 2012. Argus appealed the Order, and the Commission upheld it on
August 21, 2012. The Secretary, Ward, and Argus agreed to economic
reinstatement in lieu of actual reinstatement.

For the reasons set forth below, I deny the
discrimination complaint and dissolve the temporary reinstatement.

CONTENTIONS OF THE PARTIES

The Secretary of Labor contends
that Respondent discriminated against Ward, in violation of Section 105(c)(1)
of the act, for raising safety concerns at the Mine. Specifically, the
Secretary claims that a prima facie case exists to show that Ward was
discharged for making safety complaints. First, the Secretary asserts that Ward
engaged in protected activity within the meaning of the Act. Secretary of
Labor’s Post-Hearing Brief at 31. That protected activity included
complaining about the number of workers assigned to electrical tasks and noting
water accumulating near the seals. Id. at 20, 31. The Secretary further
contends that Ward suffered adverse employment action, first when he was
required to ride into the mine with his crew, when he was singled out in a
safety meeting for calling MSHA, and finally when he was discharged. Id. at 34. The Secretary also asserts that Respondent had a discriminatory motive
which is shown through circumstantial evidence. Id. at 35-36. Specifically,
the Secretary asserts that there is circumstantial evidence that Respondent had
knowledge of Ward’s complaints, that there was previous discriminatory action
before the discharge, and that the timing between the protected activity and the
discharge were close. Id. at 35-39. In a related argument, the Secretary
contends that Respondent’s claim that Ward was discharged for work performance
issues is mere pretext. Id. at 40-43. The Secretary notes that the
investigation into Ward’s alleged work performance was inadequate to support a
finding that the discharge was not pretextual. Id. at 39-40. Finally,
the Secretary contends that Ward is entitled to damages. Id. at 44.

Respondent contends that Ward did
not engage in protected activity, that it did not have discriminatory animus
towards Ward, and that it had a legitimate business reason for discharging Ward.
Respondent’s Post-Hearing Brief at 51-64. Specifically, Respondent
asserts that Ward did not engage in protected activity because there is no
evidence that Ward ever reported a problem with water at the seals, even though
he was tasked with examinations. Id. at 51-52. Respondent argues that
the only substantiated instance where Ward spoke to management about water was after
the condition was already cited and Respondent was actively correcting the
problem. Id. at 52. Respondent also contends that even if Ward had
engaged in protected activity, it did not have unlawful motive in discharging
him. Id. at 54. Respondent asserts that no prima facie case of
discriminatory intent can be made because there is no evidence that management
had any knowledge of Ward’s protected activity. Id. at 54-56. Respondent
also notes that there was no evidence of animus toward the protected activity;
in fact the miner who eventually reported the cited condition in writing, Adkins,
faced no repercussions. Id. at 56-58. Respondent also asserts there was
no disparate treatment of Ward because other supervisors were required to
travel with their crews. Id. at 59. Finally, the Secretary contends that
it had actual cause to discharge Ward. Id. at 59. Specifically,
Respondent asserts that Ward did not complete his work tasks, failed to properly
supervise employees, and stayed on the surface when he should have been working
underground. Id. at 60-64. He was even given a verbal warning that he
would be fired if his performance did not improve and he failed to take
corrective action. Id. at 61. Respondent asserts that this is more than
a mere pretext but, in fact, constitutes good cause for discharge. Id. at 64-65.

JOINT STIPULATIONS

The parties stipulate to the following:

1)                 
Deep Mine No. 8 (the “Mine”) is subject to the jurisdiction of the
Health Act of 1977 (the “Act”).

2)                 
The Mine is located in Lincoln County, West Virginia.

3)                 
The Mine is owned and operated by Respondent, Argus Energy WV, LLC.

4)                 
Respondent has an effect on interstate commerce within the meaning of
the Act.

5)                 
Respondent is subject to the Act.

6)                 
The presiding Administrative Law Judge has jurisdiction over the
above-captioned proceedings pursuant to § 105 of the Act.

7)                 
Respondent is subject to the jurisdiction of the Federal Mine Safety and
Health [Review] Commission and stipulates that the Administrative Law Judge has
the authority to hear this case and issue a decision.

8)                 
The parties stipulate to the authenticity of their exhibits but not to
the relevance or truth of the matters asserted therein.

9)                 
Payment of the total proposed penalty of $25,000.00 in this matter will
not affect Respondent’s ability to continue in business.

10)             
Complainant, Clinton Ray Ward, was employed by Respondent as the third
shift electrician from on or about October 2011 until June 1, 2012.

11)             
While working at the Mine, Complainant was a miner as defined in § 3(g)
of the Act, 30 U.S.C. §802(g).

12)             
Complainant has been economically reinstated from August 1, 2012 through
the present.

FINDINGS OF FACT

The findings of fact are based on
the record as a whole and the undersigned’s careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony,
the undersigned has taken into consideration the interests of the witnesses, or
lack thereof, and consistencies, or inconsistencies, in each witness’s
testimony and between the testimonies of the witnesses. In evaluating the
testimony of each witness, the undersigned has also relied on his demeanor. Any
failure to provide detail as to each witness’s testimony is not to be deemed a
failure on the undersigned’s part to have fully considered it. The fact that
some evidence is not discussed does not indicate that it was not considered. See
Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (administrative
law judge is not required to discuss all evidence and failure to cite specific
evidence does not mean it was not considered).

Ward’s Position in the Mine:

Clinton Ray Ward began working at
Argus Energy Deep Mine No. 8 in October 2011. Tr. 30. Argus Mine No. 8 had
approximately 50-60 employees in March 2012, with approximately 10 of those in
maintenance on each shift. Tr. 262. His last day working at the mine was May
31, 2012. Tr. 30. At that time, Ward worked as the third shift chief
electrician. Tr. 30.

Prior to working at Argus, Ward had
four years of underground experience and three and a half years as an
electrician. Tr. 30. He had a year’s experience working as a supervisor
electrician. Tr. 31. Ward had a West Virginia underground certification and a West Virginia low, medium, and high voltage electrical card. Tr. 31.

As a third shift electrician,
Ward’s shift was from 11 pm to 7 am, but he tried to get to work at 10 pm. Tr.
31-32. Each shift, Ward would receive his assignments as a work list from the
day shift electrician, Jake Bowen.[1]
Tr. 33, 309; SX-1. Additionally, the second shift would sometimes tell Ward
about work that needed to be done. Tr. 34, 309.

Ward’s regular duties included
multiple electrical examinations, including checking the permissibility and
recording in the books the belt heads and the KVA’s (or power centers). Tr. 35.
The KVA’s had to be examined once a month. Tr. 37. On a weekly basis, Ward had
to examine nine belt heads, which meant that he performed approximately three
examinations per night. Tr. 37. These examinations took approximately 45
minutes to one hour to perform. Tr. 37. After Ward began working at Argus,
Bowen told him that it was a “hands-on underground job.” Tr. 311, 475.

Additionally, Ward testified that
he was sometimes pulled off his regular duties to do non-maintenance work,
including hauling supplies or roof bolting. Tr. 38-39. Ward stated that he and
his crew also had to haul materials in during belt moves, which took place
every other night on two sections. Tr. 39-40. Ward testified that due to his
non-electrical duties he often could not get all of his duties completed. Tr.

40. Ward was told that when his assignments conflicted, he should do superintendent
    Grover Meade’s assignments first.[2]
    Tr. 41.

I credit Elza Maynard, the move
boss at the time of Ward’s employment, who testified that he never requested
help with belt moves or repairs, but sometimes Ward or his crew helped when
they did not have anything to do.[3]
Tr. 428. This occurred approximately once per week. Tr. 440. Ward never asked
Maynard to borrow a member of his crew to help retrieve parts, but Maynard
testified that had Ward asked, there would have been crewmembers available to
help. Tr. 433-434.

Ward supervised three trainees and
a contractor electrician who were divided over two sections. Tr. 42-43. However
there was one month when Ward was alone with a trainee. Tr. 42. A trainee is
not permitted to perform any electrical work unless he is being closely
supervised, and he cannot perform examinations. Tr. 43. Ward testified that he
asked for additional workers, and he would occasionally get additional
contractors. Tr. 44. However, he testified that the contractors were often late
or absent from work, or on drugs. Tr. 44. On cross-examination, Ward conceded
that Bowen would help him when he had little help, and his workload was
decreased during those periods. Tr. 126-128.

In some instances, Ward had to
perform the checks on the KVA’s at the D set of seals. Tr. 45. The seals were
constructed in September or October 2011. Tr. 241-242. They are 120 PSI seals
and are approximately 20-feet wide and 17-feet thick. Tr. 291. The topography
of the area was not level, and the floor dipped down as one approached the seals.
Tr. 46. The lowest point was No. 1, and it had a water trap to keep the bad air
from the sealed area from coming in contact with good air. Tr. 47. The pipe,
which Ward estimated was eight inches in diameter, was also supposed to keep
water from building up behind the seals. Tr. 48.

Allegations of Water at the
Seals

Ward testified that in January
2012, he walked to the double doors, looked over the No. 1 and 2 seals, and saw
water in the return. Tr. 51-54. However, he stated that he was not concerned
because there was not a lot of water. Tr. 51. He could not recall whether he
talked with anyone about the water, but testified that he may have talked with Jake
Bowen and Maynard. Tr. 63. Both Bowen and Maynard testified that Ward never
discussed any water or safety issues with them. Tr. 333, 436, 437. Ward
testified that the water had built up because there had been a roof fall on the
track outby in January that knocked out the power to the seals. Tr. 55-56. Therefore,
the pumps did not work. Tr. 56.

Ward testified that he traveled to
the No. 7 box in January and returned in mid-February at Bowen’s direction and
found a lot more water at the pumps. Tr. 59, 64, 132. However, Bowen testified
that several of the KVA’s were not powered from September 2011 through late
April 2012, meaning that there was no need to check on them or put them in the
book. Tr. 294-302. Furthermore, Harless and Bowen traveled to the D seals at
the end of January and did not observe any water present. Tr. 279. In late
April, the No. 6 pump was put back in service. Tr. 299-307. Meade had been at
the D seals several times after they were constructed, and he never observed
any water there prior to April 23. Tr. 479-480.

Kay Adkins, the day shift mine
foreman, testified that he had been to the seals several times prior to April
23, and never observed any water in front of them.[4]
Tr. 387-393. On April 23, Adkins observed water approximately 18-24 inches
high. Tr. 392-395. Adkins put this in the books, and was not disciplined in any
way for doing so. Tr. 395.

Ward testified that he discussed
the water issues with Maynard, Bowen, and Dingess. However, each of these
individuals testified that Ward never discussed any such issues with them. Tr.
65, 145, 333, 436-437, 463-464. Based on the credible testimony of these three
individuals, I credit their versions of the events.

Ward also did not bring up any
safety complaints to any of the state inspectors that accompanied him. Tr.
150-151, 167. Harless testified that Ward never brought any safety complaints
to him or reported any water problems to him. Tr. 279-280. Bowen testified that
Ward never made any safety complaints to him, and that he was not aware of Ward
making any safety complaints to anyone at the mine. Tr. 333. Ward also never
discussed the water issues in the mine to Bowen. Tr. 333. Maynard testified
that he had been at the D seals one time prior to April 23, and he did not
observe any water. Tr. 426.

Ward performed the electrical
examinations at the No. 6 and 7 pump stations in March 2012, and indicated that
there were no dangerous conditions observed.[5]
Tr. 57-58. If they were de-energized at that time, they would have been marked
out of service. Tr. 57-58. Ward testified that the No. 6 pump was back in
service in March, but the No. 7 pump was under water. Tr. 59. Ward described
the water as being three or four more breaks outby where it had been in
February. Tr. 62-63.

Ward’s Performance Issues:

Benton Harless, the maintenance
superintendent for Argus mines Nos. 7, 8, and 10, and the prep plant, worked
closely with Ward, and described him as not having enough hands-on experience
for the position he was in.[6]
Tr. 264. Harless reached this conclusion after several incidents. Tr. 264. The
first was Ward’s not knowing how to fix the chain on the belt head. Tr.
265-266. In another instance, Bowen wrote Ward up for incorrectly connecting
the wrong sized cable to a motor. Tr. 266-267. Additionally, Harless spoke with
Ward several times about making sure he went to both sections each night to
check on his crew because tasks were not being completed. Tr. 268.

Similarly, after observing Ward’s
work for some time, Bowen formed the opinion that Ward “had room to grow as a
chief electrician. He wasn’t real good at prioritizing.” Tr. 312. He described
Ward as a “good worker,” but qualified that “a lot of times we would have to go
in and redo something he had done.” Tr. 312.

In one instance Ward spent most of
his shift trying to connect a P-40 breaker box to a P-70 pump. Tr. 269. Ward
testified that he was told by either Meade or Bowen to connect the P-70 pump to
the P-40 starter box, however Bowen denied this, testifiying that he did not
even know at the time that the pump was down. Tr. 108-110, 190-191, 312, 325. Bowen
said that connecting a pump to a breaker is not a complicated task and that an
experienced electrician should have known not to connect the P-70 pump to the
P-40 box. Tr. 312, 325. Connecting the P-70 pump to the P-40 starter box was
illegal and it would not work. Tr. 108-109. Ward testified that he stated that
it would not work, and was told “hook it up anyway.” Tr. 109.

Dingess was able to get the pump
working on the next shift within 25 minutes. Tr. 113, 269. When Harless spoke
to Ward that morning, Ward simply stated that he could not get the pump going
or the breaker to stay in. Tr. 270. Dingess told Harless that the problem was
that a P-70 pump is a 45-amp breaker and a P-40 is a 10.25-amp breaker, and
that an electrician should know that he cannot connect the two. Tr. 270. He
testified that it would have been basic knowledge not to wire the P-70 to the
P-40. Tr. 458-459.

Harless also had several
discussions with Ward concerning MSHA’s inability to run dust on 3 Section on
February 16 because the equipment was not maintained properly. Tr. 270-271. On
February 16, the dust pumps were run on the day shift on two sections. Tr.
313-314. However, after an hour and a half into the shift, the crew still could
not get the 3 Section to run, because they couldn’t get their checks done on
the miners. Tr. 314-315. As a result, the mine was not able to get enough
production that day for dust sampling to count on 3 Section. Tr. 318. This
looked bad for the mine and it required the inspector to come spend another
full day at the mine. Tr. 407-408. Bowen spoke with Ward about the inability to
get the 3 Section running, and Ward stated that in spite of having been
instructed to go to the 3 Section, he spent all his time on the 2 Section and
had not made it to the 3 Section. Tr. 315-316.

During this period, the tracker was
indicating that Ward was staying outside for three hours into his shift before
going underground. Tr. 271. Harless testified that only in rare circumstances
should a chief electrician remain outside for that long. Tr. 272. Harless stated
that there was no reason that Ward would need to wait outside to talk to the
second shift, because he could talk to them once he got to the section. Tr.

278. Bowen talked with Ward about making sure he checked on his crew and made
     sure they were doing their job. Tr. 313.

A meeting was held on February 17
with Ward, Meade, Maynard, Bowen and Harless, Meade told Ward that his job as a
chief electrician was to go to both sections and make sure everything was ready
to run coal for the day shift. Tr. 158, 318-319. Ward was told that he didn’t
need to sit outside as long as he was doing, and “if they didn’t straighten up,
that they’d probably end up losing their job.” Tr. 318-319. During that
meeting, Ward told Meade that he was on 2 Section all night. Tr. 160. Meade
responded that Ward was not telling the truth because the tracking system
indicated that he was outside until 2:30 a.m. Tr. 160, 182. Ward could not
recall why he spent so much time outside on that day. Tr. 160.

Meade testified that unless
something was down outside, there was no reason for a chief electrician to stay
outside for any extended period of time. Tr. 477. When Ward was hired, Meade
explained to him that his duties required him to be underground supervising his
crew. Tr. 477-478. When ordering a part, the outside man can radio down to tell
underground miners that the part arrived. Tr. 495. When Meade told Ward that
there was a problem with how long Ward was staying on the surface Ward did not
explain his conduct in response. Tr. 162. Instead Ward simply said “yes” and
“no.” Tr. 162. Ward stated that his silence was because Meade and him “didn’t
get along, didn’t see eye to eye.” Tr. 162.

In that same meeting, Harless spoke
with Ward about making sure that the equipment was being maintained. Tr.
272-273. Meade told Ward and Maynard that he thought they had done a poor job.
Tr. 495. Meade told Ward that he was supposed to go to both sections and he did
not. Tr. 495-496. Ward wanted to suspend two employees, and Meade told him that
if anyone should be suspended it should be Ward. Tr. 495-496. Meade told Ward that
he could be terminated if the section was not ready again, and was told not to
stay outside. Tr. 275, 435.

Ward testified that he “usually,
regularly” was underground within an hour and 15 minutes of the start of his
shift. Tr. 163-164. However, when asked if the tracking data would confirm
those timeframes, Ward conceded that he often went underground later than he
had previously testified. Tr. 164. Ward stated that he stayed outside for long
periods based on what he was taught at a previous job at Rock Springs. Tr. 164.
However, he conceded that Rock Springs staffed their mines differently than
Argus, and the third shift electrician did not do electrician work. Tr.
164-165.

On May 31, production could barely
be run at the proper levels for dust samples to be run. Tr. 280.

The April 24 Impact Inspection

Kenneth Butcher was one of the
inspectors who performed the April 24, 2012 impact inspection at the No. 8
mine.[7]
Tr. 221. Butcher estimated that there were eight inspectors at the mine that
day. Tr. 222. Jake Bowen accompanied Butcher on the impact inspection. Tr. 223,

319. Bowen told Butcher that “he knew they were going to get hammered if they
     were to get a good electrical exam…because he stated he was shorthanded and
     people were taking shortcuts.” Tr. 225.

Following the inspection, MSHA shut
down the mine and required it to remove the water around the D seals. Tr.
68-69. The mine received 97 violations and 10 D-Orders during the impact
inspection. Tr. 498. This was the most that Meade had ever received. Tr. 498.

It took approximately three weeks
to remove all the water. Tr. 69. This was done by Ward and Maynard taking a
“John boat” over the S-trap and opening and shutting the valves to pump out the
water. Tr. 69. They did this in order to regulate the water and keep it from
overriding the pump and flooding the area further. Tr. 70. Ward and Maynard
took the boat there two to three times. Tr. 71.

Butcher returned to the mine to
terminate citations on May 17 with Inspector Wolford from the Pineville office,
and was accompanied by Meade. Tr. 226. Butcher saw evidence that water had been
present at the seals. Tr. 228-230. The water was too high between the 2 and 3
seals for Butcher to inspect the area. Tr. 230-231. Butcher described two
possible hazards when there is excessive water at the seals. Tr. 237-239. The
first is to the examiner and the second is when the operator must check for
methane. Tr. 237-239.

Ward testified that he felt a
current under the boat because the seals were leaking. Tr. 70-71. Ward believed
that this could have posed a fatal hazard. Tr. 71. He testified that he shared
this concern with Maynard. Tr. 71. Ward also testified that he discussed his
concerns with Lee Williamson, who became the third shift foreman during that
time.[8]
Tr. 71-72. However, this discussion occurred after the impact inspection, when
there was an active attempt to pump out the water. Tr. 71-72. Williamson
responded that Ward and Maynard should not go to the area alone. Tr. 72.

On cross-examination, Ward
testified that the reason he was told not to go alone may not have concerned
safety, but rather efficiency. Tr. 172. Ward testified that he also spoke about
his concerns with William Robert Sloan, the safety director at several of
Argus’s mines.[9]
Tr. 72-73. However, Sloan testified that although he spoke to Ward three to
four times per week, Ward never made any safety complaints to Sloan, including
any pump or seal issues. Tr. 446. I credit Sloane’s testimony that Ward never
complained to him.

After the impact inspection, Ward
had a meeting with Meade and Maynard where Maynard was demoted to section boss
and Ward was told to ride in and out with the crew. Tr. 73. Ward took this
change as a demotion, but admitted that section bosses and foremen often ride
in with their crews. Tr. 184. He also continued to get the same rate of pay,
had the same responsibilities, and was still the chief electrician. Tr. 188. Meade
did not provide them any reasons for the changes. Tr. 75. Meade testified that
he told Ward to ride in with the crew so that Ward could get more done
underground. Tr. 509-510.

After the impact inspection, Ward
was responsible for two sections, which constituted one supersection. Tr. 85-86.
On those sections was the following equipment: two miners, four buggies, and
two roof bolters. Tr. 86.

At a meeting following the impact
inspection, Meade discussed the MSHA inspection. Tr. 75. Ward brought up the
subject of who may have called MSHA. Tr. 178. Ward asked “was it Whalen?”
referring to a third shift electrician. Tr. 76. Meade responded, “No, I know
who called,” while looking at Ward and shaking his head. Tr. 76. Ward
understood this to constitute a threat. Tr. 76. Meade testified that he did not
believe that Ward called MSHA. Tr. 507-508. He believed that a contractor who
was denied unemployment compensation called MSHA. Tr. 508.

Ward testified that Williamson said
that Meade never like Ward and was going to get rid of Ward as soon as he
could. Tr. 76-77. Ward testified that Meade’s disdain for him traced back to
when Ward first began working at Argus in October 2011. Tr. 123. However, Meade
denied having any problems getting along with Ward. Tr. 475.

Ward’s Termination:

On his last shift, Ward arrived to
work at 10 pm on May 30, 2012 and worked until 8 am on May 31. Tr. 77. Ward
testified that on that shift, Billy Justice, a state electrical inspector
accompanied Ward until approximately 5 am. Tr. 77-78. Ward testified that
Justice kept him from being able to work on the planetary on the miner as his
work order directed.[10]
Tr. 78-79; SX-1. Ward testified that working on the planetary usually takes
three to four people three to four hours. Tr. 82. Additionally, he was
directing the trainees on a belt and power move. Tr. 83.

Justice wrote up the miner because
the methane monitor would not calibrate properly. Tr. 115. Specifically, the
miner would not calibrate past .8, meaning that the miner would not shut down
even under dangerous amounts of methane. Tr. 326-327. The citation that Justice
wrote indicated that he was at the mine from the night of May 29 through the
morning of May 30, which is one day before Ward testified that he was there.
Tr. 118-120; RX-A. Ward testified that the inconsistency must have been due to
a typo on Justice’s part. Tr. 119-120. I credit the date on the exhibit over
Ward’s memory, as Ward consistently could not remember important details of his
employment. See e.g. Tr. 168, 180.

The work order for the May 30 shift
included work on the planetary and making sure the new car was running, however
Joe Flemming, an electrician on the second shift, also told Ward that there was
a problem with the roof bolter that he needed to attend to. Tr. 80. The way
Ward prioritized his work was to put the inspector first and then proceed to
help in moving the miner. Tr. 81. Ward placed three of his men to help with the
move. Tr. 81.

After Ward was finished with
Justice, he went to the 2 Section and found that nothing had been done. Tr. 87.
By 7 a.m., Ward’s crew had one miner working, which Justice had shut down due
to problems with the methane monitor. He also may have had one bolter working.
Tr. 88-89. Ward’s crew never got started on the planetary. Tr. 89-90.

Bowen took the MSHA inspector,
Roger Workman, to the section on the morning of May 31 to run dust, and the
miner would not start. Tr. 327-328. This problem was not in any way related to
the cited problem with the miner the day before. Tr. 328. They found that both
miners and both bolters were down. Tr. 329. Ward had told Bowen that one of the
miners was down due to planetary repairs, however he did not report the other
equipment problems, even though it was his responsibility to report them. Tr.

329. One of the bolters was tagged out and Bowen had to take the other out of
     service because it didn’t have enough suction. Tr. 329-330. This problem should
     have been discovered by Ward when he ran dust parameters in his shift, and the
     problem should have been reported. Tr. 330.

Some time after this shift, Bowen spoke
to Ward and said that the section “looked like a bomb went off.”[11] Tr. 91. Ward
responded that there was a belt move during the previous shift, and he had
Inspector Justice with him. Tr. 91-92. Then Meade called Ward and Bowen into
his office and fired Ward. Tr. 92-93. Meade testified that there were
consistently problems with Ward’s performance. Tr. 486-489. Harless and Meade
decided to fire Ward because of job performance, management skills, and for
being responsible for MSHA’s inability to run dust on two occasions. Tr.
280-281. There was no requirement at Argus for an employee to be written up
before being fired. Tr. 478.

Ward stated that Meade did not make
any mention of the planetary and did not give Ward a reason for his
termination. Tr. 93-94. However, Ward also testified that Meade told him that
it was the second time that the section was not ready to run. Tr. 196. Meade
testified that he fired Ward because things kept getting worse. Tr. 517-518. Furthermore,
Bowen and Meade each stated that Meade told Ward about his performance issues
as an electrician. Tr. 32. Ward was provided an opportunity to explain, but
said nothing. Tr. 332. Ward testified that he did not mention to Meade that he
had a state inspector because he “figured there was no need for it.” Tr. 196.

On the termination slip that Ward
received, the reason provided was “not doing his job.” Tr. 95-96; SX-4. Ward
never received written warnings prior to his termination. Tr. 96. Ward testified
that he believed that he was fired because Meade thought Ward had called MSHA
resulting in the impact inspection. Tr. 101.

ANALYSIS

Section 105(c) of the Mine Act
prohibits discrimination against miners for exercising any protected right
under the Mine Act. The purpose of the protection is to encourage miners “to play an active part in
the enforcement of the [Mine Act]”
recognizing that, “if
miners are to be encouraged to be active in matters of safety and health, they
must be protected against any possible discrimination which they might suffer
as a result of their participation.”
S. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 623 (1978).

Section 105(c)(1) of the Act states
in relevant part:

No person shall discharge or in any
manner discriminate against […] or otherwise interfere with the exercise of the
statutory right of any miner […] in any coal or any other mine subject this
chapter because such miner […] has filed or made a complaint under or related
to this chapter, including a complaint notifying the operator or the
operator’s agent […] of an alleged danger or safety or health violation in a
coal or other mine.

30 C.F.R. § 815(c)(1).

In order to establish a prima
facie case of discrimination under section 105(c) of the Act, a complaining
miner must establish (1) that he engaged in protected activity and (2) that the
adverse action complained of was motivated in any part by that activity. Sec’y
of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct.
1980), rev d on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (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.” MSHA on behalf of Leonard Bernardyn v. Reading Anthracite Co.,
22 FMSHRC 298, 301 (March 2000). The Commission has further held that even “[i]f
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.” Id.

I find that the Secretary has both
failed to meet his prima facie case by failing to present credible
evidence that Ward engaged in protected activity or that the termination was
motivated by such activity. Furthermore, even if the Secretary had met his
burden here, Respondent has shown that it would have terminated Ward’s
employment for legitimate non-discriminatory reasons related to his poor work
performance.

Ward did not engage in protected
activity and there was no animus toward such alleged activities

Both the Secretary and Respondent
spent an inordinate amount of resources in the hearing and in their
post-hearing briefs dedicated to the issue of whether there was water at the D
seals prior to April 23, 2012. However, for purposes of this discrimination
proceeding, the relevant issue is not whether water was present during this
timeframe, but whether Ward made any health or safety complaints related to the
water.

Though Ward testified that he discussed the
water at the seals with several individuals, his testimony on the matter was
vague and incredible. Ward stated that he may have spoken with Bowen and
Maynard about the water, but Bowen and Maynard each testified unequivocally
that Ward never discussed the issue with them. Tr. 51, 63, 333, 436, 437. Similarly,
Ward did not mention the issue to any of the state inspectors that accompanied
him or with Harless. Tr. 150-151, 167, 279-280. Aside from Ward’s often
inconsistent testimony, there is nothing in the record to indicate that Ward
made any health or safety complaints.

Additionally, the totality of the evidence
indicates that there was no animus toward any alleged protected activities. First
off, it should be noted that Adkins, who reported the water in April, testified
that he suffered no repercussions. Tr. 395. Ward testified that at a meeting to
discuss the impact inspection, Meade gave Ward a threatening look when Ward
asked if it was another electrician that called MSHA. Tr. 76, 178. If anyone
engaged in problematic conduct at this meeting, it was Ward—a supervisor—who
attempted to implicate another electrician for making an anonymous complaint to
MSHA—a form of conduct that the Mine Act encourages. Furthermore, Meade’s looking
at Ward as he responded, saying, “No, I know who called,” cannot be taken as a
threat without more. Tr. 76. It is not uncommon for individuals to look at each
other when talking. Though Ward may have sincerely believed Meade’s look to be
threatening, there is nothing in the record to substantiate this subjective
feeling.

Similarly, other alleged forms of
animus described here do not create the inference of discrimination. Despite
testifying that it felt like a demotion, Ward’s being told to ride in with his
crew carried no reductions in pay or title. Tr. 188. Ward conceded that section
bosses and foremen often ride in with their crews, and Meade testified that he
told Ward to do so in order to ensure that he spent more time underground. Tr.
184, 509-510. Without being able to show through credible evidence that Ward
engaged in protected activity, and that he suffered an adverse employment
action as a result, the Secretary has not made a prima facie case.

Argus Energy had a legitimate
non-discriminatory reason for terminating Ward’s employment

Even if the Secretary had met its burden of
making a prima facie case of discrimination, Argus had a legitimate
non-discriminatory reason for terminating Ward’s employment. During Ward’s
short tenure at the mine, he had numerous performance issues, several of which
he was warned about. Ward spent an excessive amount of time on the surface, at
the expense of going underground and supervising his crew. Tr. 271. Ward was
told that his job required him to be “hands on” and be underground, yet he
repeatedly stayed above ground for up to 3 hours of an 8 hour shift. Tr. 311,

475. As a result of Ward not spending his shift underground, he often left
     tasks unfinished or finished incorrectly. Tr. 266-268.

Ward also made significant mistakes that an
experienced electrician should not have made. This included spending the majority
of a shift wiring a P-40 breaker box to a P-70 pump. Tr. 269. The P-70 pump is
a 45-amp breaker and the P-40 box is a 10.25-amp breaker, meaning that the two
pieces of equipment are incompatible. Tr. 270. Ward testified that he was
ordered to connect them, and he just did as he was told. Tr. 108-110. Bowen
denied that anyone told Ward to connect the two pieces of equipment. Tr.
190-191. Dingess, who fixed the pump in the next shift, was able to do so in 25
minutes. Tr. 113. I find Bowen’s testimony more credible, and find that it
defies logic that Ward explained to his supervisors the impossibility of this
task and they told him to waste his shift trying. Furthermore, if he was so
directed, it should not have taken his entire shift to connect the equipment.

Ward was also in large part responsible for
MSHA’s inability to run dust samples on two separate occasions. MSHA tried to
run dust samples on February 16, but was unable to do so because the equipment
was not maintained properly. Tr. 270-271. Such maintenance was one of Ward’s
primary responsibilities. Tr. 35-37. After this incident, Ward was warned about
staying above ground at the expense of doing his work underground. Tr. 158,
318-319. He was also told that if it occurred again, he may lose his job. Tr.
318-319.

On May 31, MSHA returned to run dust samples,
and this time was barely able to run the samples due to problems with the
equipment. Tr. 280. The next day Ward was terminated for performance issues.
Tr. 486-489. I find that these performance issues, as well as others described
at hearing, constitute legitimate non-discriminatory reasons for Ward’s
termination.

CONCLUSION

I have reviewed the entire record in this case
and have carefully considered the contentions of the parties. I conclude that
Argus Energy did not discriminate against Clinton Ray Ward. Accordingly, the
discrimination complaint is denied and the August 1, 2012 Temporary
Reinstatement Order is dissolved.[12]

ORDER

Based on the foregoing, the Secretary’s
discrimination complaint is hereby DENIED, and Complainant’s Temporary
Reinstatement is DISSOLVED.

/s/
William S. Steele

William
S. Steele

Administrative
Law Judge

Distribution:

John M. Strawn, Esq., Office of the Solicitor, U.S.
Department of Labor, The Curtis Center, Suite 630E, 170 S. Independence Mall
West, Philadelphia, PA 19106-3306

Clinton Ray Ward, 906 Turkey Fork Road, Fort Gay, WV 25514

Mark E. Heath, Esq. & Dennise R. Smith, Esq., Spilman,
Thomas & Battle, PLLC, 300 Kanawha Blvd, East, P.O. Box 273, Charleston, WV
25301

/mzm

[1] At the time of hearing, Jake Bowen had worked as the
chief electrician for Argus No. 8 mine for two years. Tr. 287. He had Kentucky and West Virginia electrical, mine foreman, and EMT certifications. Tr. 288. He
was also a hoist engineer and a shot firer, a Kentucky state instructor, a
federal instructor, and was certified in dust. Tr. 288. Prior to working at
Argus, Bowen worked briefly at Mt. Laurel and then for 11 years at Excel, the
last five of which he was a chief electrician. Tr. 288-289. At the time of
hearing, Bowen had 27 years of mining experience and 15 years of experience as
an electrician. Tr. 288.

[2] Grover Todd Meade began working as the superintendent
of Argus No. 8 mine in June 2011. Tr. 472. He had 16 years experience in the
coal industry. Tr. 472. Meade was certified as a foreman in West Virginia and Kentucky. Tr. 472.

[3] Elza Maynard was employed as a third shift mine
foreman for Argus from September 2011 until May 2012. Tr. 424-425. In May,
Maynard became the third shift move boss. Tr. 425. He had 15 years of mining
experience and had a West Virginia and Kentucky mine foreman’s certificates,
dust sampling card, and an EMT card in Kentucky. Tr. 425.

[4] Kay Adkins was employed at Argus No. 8 since 2003,
with the last two years as the day shift mine foreman. Tr. 381. Prior to that
position, Adkins was a section boss. Tr. 382. He has worked in the coal
industry since 1978, and has a West Virginia mine foreman card, as well as a
CPR, EMT, and surface cards. Tr. 382.

[5] The No. 6 KVA is also referred to as the “mid point
box,” and the No. 7 KVA is also referred to as the “old 2 head.” Tr. 59.

[6] Benton Harless was a maintenance superintended for
Argus Nos. 7, 8, and 10 mines, as well as the prep plant since December 2011.
Tr. 258. Prior to that he was the chief electrician at the No. 7 mine for four
years. Tr. 258-259. He was certified as an electrician in Kentucky and West Virginia. Tr. 258-259. Harless had been employed in the coal industry since 1988, and
had been a certified electrician since 1993. Tr. 259.

[7] Kenneth Butcher was employed by MSHA for four and a
half years, and served as a supervisor of Work Group II at the Logan Field
Office since February 2013. Tr. 219. Prior to this position, Butcher held
positions as electrical specialist at the Logan Field Office and CMI. Tr. 219. He
had a BA in civil engineering and was a certified mine foreman, certified
electrician, certified diesel instructor, and an MSHA accident investigator.
Tr. 220. Prior to working for MSHA, Butcher worked as an underground coal miner
for 28 years where he held a variety of positions, including foreman, chief
electrician, laborer, and equipment operator. Tr. 220.

[8] Norman Lee Williamson had been employed at Argus Mine
No. 8 since February 2012. Tr. 403-404. He began as a boss on the 3 Section day
shift crew and in May 2012 became a miner operator. Tr. 404. He had worked in
the coal industry for 21 years. Tr. 405.

[9] At the time of hearing, Willard Robert Sloan had
worked as the safety director at Argus Nos. 7, 8, and 11 mines for two years.
Tr. 444. Prior to working at Argus, Sloan worked examining airways and belt
lines at Booth Energy for 20 years. Tr. 445. He had Kentucky and West Virginia mine foreman, surface, unlimited instructor, and EMT cards. Tr. 445.

[10] The planetary is the drive that turns the Caterpillar
track and propels the miner. Tr. 79.

[11] Ward could not recall if it was on May 31 or June 1.
Tr. 90-92.

[12] Respondent’s Motion to Dissolve Temporary
Reinstatement while this decision is pending has been made moot. Furthermore,
it should go without saying that any money paid to Complainant during the
period of temporary reinstatement is not recoverable.