Secretary of Labor obo Carl Ebert v. Marshall County Coal Co. (ALJ decision, January 11, 2018)

Read the official release (fmshrc.gov)

Plain-English summary

Carl Ebert, a shuttle-car operator known as a safety advocate, raised concerns about roof bolting, emergency-ride brakes, supply handling, a power cable, and the number of rail cars at the section. Marshall County Coal later suspended him for two and a half days after he did not begin his shuttle-car pre-operational examination until about 50 minutes after the crew reached the section. Judge Jerold Feldman rejected the operator's request to dismiss the case merely because the Secretary filed the complaint late, finding no material legal prejudice from the delay. On the merits, he found that management had addressed Ebert's safety concerns and that the evidence did not establish hostility or disparate treatment connecting those concerns to the suspension. He held that the operator reasonably disciplined Ebert for the delayed examination, denied the discrimination complaint, and dismissed the case.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1) and 815(c)(2)
• Outcome: The untimeliness motion was denied, but the discrimination complaint was denied on the merits and the case was dismissed.
• Key point: Protected safety activity close in time to discipline did not prove retaliation when the operator addressed the complaints and established a credible, non-discriminatory reason for the suspension.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW

COMMISSION

OFFICE OF

ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA

AVE., N.W., SUITE 520N

WASHINGTON, DC

20004-1710

January 11, 2018

SECRETARY OF LABOR,

U.S. DEPARTMENT OF LABOR on behalf of CARL EBERT,

Complainant

v.

MARSHALL COUNTY COAL CO.,

Respondent

DISCRIMINATION PROCEEDING

Docket No. WEVA 2016-565-D

MSHA No. MORG-CD-2016-19

Mine: Marshall County Mine

Mine ID: 46-01437

DECISION

Appearances:    Jessica

R. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,

Pennsylvania for Complainant; [1]

Philip K. Kontul,

Esq., Daniel D. Fassio, Esq., Ogletree, Deakins, Nash, Smoak, & Stewart,

P.C., Pittsburgh, Pennsylvania for Respondent

Before:                        Judge Feldman

This case is before me based on an August 19, 2016,

discrimination complaint filed pursuant to section 105(c)(2) of the Federal

Mine Safety and Health Act of 1977,  30 U.S.C.    § 815(c)(2)  (2006)

(“the Act”) by the Secretary of Labor (“the Secretary”) on behalf of Carl Ebert

against Marshall County Coal Co. (“Marshall County”). The hearing was conducted

in Wheeling, West Virginia, on May 23 and May 24, 2017. [2] The parties

have filed post-hearing briefs that have been considered in the disposition of

this matter.

I.                   

Statement of the Case

The Secretary alleges that Marshall County violated

the provisions of section 105(c)(1) of the Act, [3]   30 U.S.C. § 815(c)(1) ,

when it suspended Ebert for two-and-a-half days for allegedly failing to timely

complete a pre-operational (“pre-op”) [4]

examination of his shuttle car on      March 7, 2016, at the Marshall County

Mine (“the mine”). The Secretary contends that Ebert’s suspension was

motivated, at least in part, by Ebert’s safety related complaints that occurred

in the weeks preceding Ebert’s suspension. Marshall County seeks dismissal of

the subject discrimination complaint as untimely. Alternatively, Marshall

County asserts that Ebert’s suspension was motivated by an independent business

justification, and not by Ebert’s protected activity.

Activities on the subject shift at the working section

began at approximately 9:05 a.m. on March 7, 2016. At that time, foreman Grant

Paugh completed his pre-shift meeting with the section crew, at which time

Paugh departed the power center to conduct his fire boss duties. After completing

his fire boss duties, Paugh returned to the section power center at

approximately 9:55 a.m. at which time he determined that Ebert had not begun

the pre-op examination of his shuttle car. The evidence reflects it took Ebert

approximately 30 additional minutes to complete his pre-op examination. Thus,

Ebert was not available to begin his assigned routine mining activities, such

as operation of his shuttle car, until approximately 10:25 a.m. Believing that

Ebert did not have an adequate justification for the delay in his pre-op

inspection, Paugh had Ebert removed from the mine, which ultimately resulted in

the imposition of a     two-and-a-half day suspension.

A mine operator has a legitimate business interest in ensuring

that pre-op examinations are completed in a timely manner. Marshall County’s

rejection of Ebert’s explanation for the significant delay in completing his pre-op

duties is a reasonable exercise of its administrative prerogatives. Thus,

Marshall County has demonstrated a credible business justification for Ebert’s

suspension. Although Ebert did communicate several safety related concerns to

Paugh in the weeks preceding Ebert’s suspension, Paugh took actions that

reasonably addressed each of Ebert’s concerns. The Secretary has failed to

demonstrate, through adequate direct or indirect evidence, that Ebert’s

suspension was also motivated, in any part, by his protected activity. Consequently,

Ebert’s discrimination complaint must be denied.

II.                

Timeliness

Section 105(c)(3) of the Act provides that “[w]ithin

90 days of the receipt of a complaint filed under [section 105(c)(2)], the

Secretary shall notify, in writing, the miner . . . of his determination

whether a violation has occurred.” Section 105(c)(2) further provides that “[i]f

upon [the] investigation [of a complaint], the Secretary determines that the

provisions of this subsection have been violated, he shall immediately file a

complaint with the Commission, with service upon the alleged violator and the

miner . . . alleging such discrimination.” 30 U.S.C. § 815(c)(2) .

Commission Rule 41(a) has interpreted the statutory provision to “immediately

file a complaint with the Commission” to mean that the Secretary is required to

file a complaint with the Commission “within 30 days after his written

determination that a [105(c)] violation has occurred.” 29 C.F.R. § 2700.41(a).

Thus, the operative time period for the Secretary’s

filing of a discrimination complaint, as contemplated by Section 105(c) of the

Act and Commission Rule 41(a), is 120 days (a total of 90 days in the Act plus

30 days in Rule 41(a), after the filing of the underlying complaint with the

Mine Safety and Health Administration (“MSHA”)). Ebert’s complaint was filed

with MSHA on March 17, 2016.

Relying on the operative 120 day filing period, Marshall

County argues that the Secretary was required to file the subject 105(c)(2)

complaint on or before July 15, 2016. Resp’t Br. at  14-15. However, the

Secretary did not file the complaint until August 19, 2016, approximately 155

days after the filing of Ebert’s original complaint. Thus, Marshall County

seeks the dismissal of the complaint as untimely because it was not filed

within 120 days. I construe Marshall County’s untimeliness claim as a motion to

dismiss.

The Commission has stated that “[w]hile the language

of section 105(c) leaves no doubt that Congress intended these directives to be

followed by the Secretary, the pertinent legislative history nevertheless

indicates that these timeframes are not jurisdictional.” Sec’y of Labor on

behalf of Hale v. 4-A Coal Co., Inc., 8 FMSHRC 905, 908 (June 1986). Thus,

a late-filed complaint “is subject to dismissal [only] if the operator

demonstrates material legal prejudice attributable to the delay,” and “absen[t

this] requisite foundation, the judge [would] err[] in granting [a] motion to

dismiss” on untimeliness grounds. Id. at 908-909. Specifically, the

legislative history states that:

The

Secretary must initiate his investigation within 15 days of receipt of the

complaint, and immediately file a complaint with the Commission, if he

determines that a violation has occurred. The Secretary is also required

under section 10[5](c)(3) to notify the complainant within 90 days

whether a violation has occurred. It should be emphasized, however, that

these time-frames are not intended to be jurisdictional. The failure

to meet any of them should not result in the dismissal of the discrimination

proceedings; the complainant should not be prejudiced because of the failure of

the Government to meet its time obligations.

S. Rep. No. 95-181 at 36 (1977), reprinted in Senate Subcomm. on

Labor, Comm. on Human Res., 95th Cong., Legislative History of the Federal

Mine Safety and Health Act of 1977 , at 624 (1978) (emphasis added).

Having filed the subject 105(c)(2) complaint on August

19, 2016, instead of on or before July 15, 2016, the Secretary’s filing is

approximately one month late. Given the Secretary’s rather brief filing delay,

Marshall County does not assert that it has suffered actual prejudice. However,

Marshall County seeks to support its request for dismissal on two theories.

First, Marshall County asserts that the Secretary must justify the reason for

the filing delay to successfully defeat a motion to dismiss for untimeliness. Resp’t

Br. at 16-17. While an explanation by the Secretary may be relevant in cases

where there is a lengthy filing delay, the legislative history makes clear that

the relatively brief one month delay in this case “should not [prejudice a

complainant] because of the failure of the Government to meet its time

obligations.” S. Rep. No . 95-181,

supra .

The second assertion raised by Marshall County is that

the Secretary’s failure to abide by the relevant filing deadline is inherently

prejudicial. Resp’t Br. at 16-17. In support of this proposition, Marshall

County notes that Commission Judge Manning has held that the Secretary’s delay

in filing a 105(c)(2) complaint may be viewed as prejudicial per se. Respt. Br.

at 16 (citing Sec’y of Labor on behalf of Bussanich v. Centralia Mining Co. ,

22 FMSHRC 793, 795 (June 2000) (ALJ)). However, unlike this case where the

filing delay is approximately one month, the filing delay in Judge Manning’s

case was more than 36 months. The approximate 35 month differential is a

distinction with a difference. Consequently, Marshall County’s reliance on

Judge Manning’s decision is misplaced. Having failed to demonstrate any

meaningful prejudice, Marshall County’s motion for dismissal of the subject

complaint as untimely shall be denied .

III.             

Findings of Fact

a.       

Background

Carl Ebert has been employed at the Marshall County

Mine for approximately seven years. Tr. 17. Grant Paugh began working at the

mine as a section foreman in November 2015 and became Ebert’s supervisor shortly

thereafter. Tr. 55, 99, 282, 285. Paugh conceded that Ebert has a reputation at

the mine as “a safety advocate,” who does not hesitate to “bring safety issues

he observes to” his supervisors. Tr. 340.

Ebert has worked at the mine as a shuttle car operator

for the last five years. Tr. 17-18.  A shuttle car is used to transport coal

from the vicinity of the face to the dumping point (“tail piece”) of a belt

line, where it is then carried to the surface through a series of conveyers. Tr.

18.

With the exception of one incident that occurred in

March 2015 that did not involve Paugh, for which Ebert received a verbal

warning, there is no evidence that Ebert had been the victim of any

disciplinary action as a consequence of his safety related advocacy. The March

2015 incident occurred when Ebert detected methane in the explosive range after

noticing that there was no line curtain ventilating the section face. Tr. 93.

Consequently, Ebert de-energized his shuttle car. Tr. 94. Although Ebert’s

supervisor Shannon Looney initially disagreed that there was methane at

potentially hazardous levels, he eventually allowed Ebert to retrieve and install

line curtains at the face. Tr. 94. Disappointed by Looney’s reaction, at the

end of his shift Ebert asked his section coordinator, Justin Miller, if he

could be transferred to a different crew with a different foreman. Tr. 95. Looney

approached Ebert and Miller and disputed Ebert’s version of events. Upon being

challenged, and in the presence of Looney, Ebert told Miller that Looney “did

not have enough brains to blow his own nose.” Tr. 95, 146. Although Ebert was

informally counseled as a result of this incident, there was no disciplinary

action taken, nor was there any documentation placed in Ebert’s personnel file.

Tr. 163-66; Resp’t Ex. 9.

Although there is no history of relevant adverse action

suffered by Ebert prior to Paugh’s employment at the mine, the Secretary

asserts in his brief that “Ebert’s safety efforts earned him the particular ire

of Foreman Paugh, who viewed his safety complaints as delaying production.”

Sec’y Br. at 2. Roof bolter Todd Cross equivocally opined that he “never really

had that much problems with [Paugh’s response to safety complaints], but, I

mean, on some of the safety issues, he’s not the best.” Tr. 222-23.

The Secretary relies on five instances of protected

activity that are related to safety concerns communicated to Paugh in the weeks

preceding Ebert’s March 2016 suspension. Sec’y Br. at 10. The occurrence of

these incidents is not challenged by Marshall County. Ebert testified that Paugh

addressed each of the five concerns raised by Ebert that are enumerated below.   

Tr. 134-35.

b.      

History of Protected Activity

i.      

Unbolted Cuts

During the weeks preceding Ebert’s March 2016

suspension, roof-bolter Cross informed Ebert that the mine had four unbolted

cuts at the face and that the company’s roof control plan required installation

of a first row of roof bolts before a fifth cut could be taken. Tr. 113; Sec’y

Ex. 4 at 5. Paugh took the necessary action to ensure that the first row of

roof bolts was installed. Ebert testified that Paugh was unhappy because it

took an hour to install the necessary bolts, which interfered with production.

Tr. 113.

ii.      

Emergency Ride Brake

Several days prior to Ebert’s suspension, a mechanic

from the previous shift informed Ebert’s crew that there was a problem with the

section’s emergency ride brakes. Tr. 108; Sec’y Ex. 4 at 5. Ebert asked Paugh

to have the emergency ride brakes replaced. Tr. 108 . Ebert testified

that the mine’s mechanic, Dean Williams, examined the problem and concluded

that there was a leak in the brakes. Tr. 108. According to Ebert, Paugh told

Williams, “Fill it with fluid, and let’s go.” Tr. 108. Ebert does not contend

that mechanic Williams concluded that the brakes needed to be replaced. Ebert

testified that he questioned Paugh’s decision because he still did not think

the emergency ride vehicle was safe. Ebert further testified that Paugh became

upset when Ebert expressed his opinion. Tr. 108.

iii.      

Loading Supplies

Prior to Ebert’s suspension, Paugh requested Ebert and

his crew to retrieve supplies that were located at the end of a track. However,

there was a roof bolter on a flat car, used to transport equipment, that was

chained to the flat car in a crooked manner, causing a blockage of the walkway.

Paugh requested the crew to retrieve the supplies by having some individuals on

one side of the flat car hand over the supplies to individuals positioned on

the other side of the flat car by passing the supplies over the top of the

bolter. Ebert suggested to Paugh that if a pile of trash, consisting of old

mangled rib straps, bolts, cardboard, and oil cans, located on the side of the

track where the supplies were located, was removed, it would provide a safer,

direct path to the supplies. Paugh adopted Ebert’s suggestion to remove the

trash. However, Ebert testified that Paugh “became very irritated.” Tr. 102-03;

Sec’y Ex. 4 at 6.

iv.      

Shuttle Car Cable

On March 4, 2016, Ebert observed that a shuttle car

power cable was tied to a rib strap by a tow rope. Tr. 104; Sec’y Ex. 4 at 4. Ebert

believed this was not a safe method of securing the power cable because the rib

strap was sharp and could slice through the cable’s rubber jacket, creating a

shock hazard. Ebert told Paugh that a proper anchor bolt was needed to secure

the power cable. Cross testified that Paugh was not happy about having to

install an anchor bolt instead of using the rib strap as an anchor. Tr. 222.

However, after initially disagreeing, Paugh acquiesced to Ebert’s suggestion

that an anchor bolt was required. It took approximately 20-25 minutes to install

the anchor bolt. Tr. 104.

v.      

Excessive Rail Cars

On March 5, 2016, Marshall County attempted to bring an

additional rail car to the end of the mine section’s track. At that time, there

were already 10 supply cars on the track. Ebert believed West Virginia mine

regulations only permitted a maximum of seven cars at the end of the track.

Ebert testified that when he raised this issue, Paugh reportedly “became very

irritated with [him]” and asked, “‘Why are you always trying to shut me down?’” [5] Tr. 99-100.

Paugh had been Ebert’s foreman since December 2015. During

the approximate three month period preceding his March 2016 suspension, Ebert

continued to raise safety issues when appropriate, despite his testimony that

Paugh was resentful. Ebert testified that although the safety issues he raised

were always addressed, he claimed they were done so reluctantly. There is no evidence

that Ebert was the victim of any adverse action as a result of his safety

concerns during the months preceding his March 2016 suspension. Tr. 134-35.

Paugh continued to be Ebert’s supervisor for an uneventful eight month period

following Ebert’s March 2016 suspension. Tr. 182.

c.       

March 7, 2016 Incident

On March 7, 2016, there were three operational shifts

at Marshall County’s mine: a morning shift, from 8:00 a.m. to 4:00 p.m.; an

afternoon shift, from 4:00 p.m. to midnight; and a midnight shift, from midnight

to 8:00 a.m. Tr. 47-48. On that day, Paugh’s crew of approximately 10 miners,

including Ebert, was assigned to work the morning shift in a continuous mining

section driving entries in preparation for setting up the 14 East longwall

section. Tr. 35, 55, 282-83. Each shift for a continuous mining section has two

shuttle car operators. On March 7, Ebert and John Harris were partnered

together as the two shuttle car operators for the morning shift. Tr. 30-31.

On March 7, 2016, Paugh’s crew reported to the mine at

8:00 a.m. and traveled underground via elevator, whereupon they traveled to the

working section via a mantrip, arriving at the 14 East power center at

approximately 9:00 a.m. Tr. 305. Beginning shortly after 9:00 a.m, Paugh

conducted a routine “safety talk” with the crew at the power center, during

which he provided general information about the roof control plan and the

layout of the section. Tr. 55-56, 288; Resp’t Ex. 7.

Upon completion of the safety talk at approximately

9:05 a.m., Paugh left the crew to perform his fire boss duties and returned to

the section at approximately 9:55 a.m. Tr. 293; Resp’t Ex. 7. During this time,

Paugh traveled to each section face and to the track where the mine’s charger

was located. In addition, he took air and methane readings, checked the refuge

alternatives, and inspected for violations of mandatory health and safety

standards. Tr. 292-93.

In the meantime, Ebert was required to conduct a pre-operational check on his

shuttle car, after which he was expected to start loading supplies on the

continuous miner. Tr. 56, 291. Ebert’s shuttle car was used on the previous

shift without evidence of any reported problems. Tr. 48-50, 197-98.

Paugh testified that a typical pre-operational examination

of a shuttle car takes approximately 10-15 minutes. Tr. 307. For example, Paugh

testified that Ebert’s partner Harris routinely took 5-10 minutes to perform

the part of the pre-op that involved inspecting the shuttle car and that it

would then take him roughly another 5 minutes to perform the rest of his pre-op

duties, which would include watering the roads. Tr. 356. In contrast, Ebert testified

that the pre-operational examination of his shuttle car on a typical day with

no major problems took him approximately 40-45 minutes. Tr. 33.

The right of a miner to perform a thorough pre-op

examination is protected by section 105(c)(1) of the Act. Sec’y Br. at 12. Although

Paugh was aware that it normally took Ebert up to 45 minutes to complete a

pre-op inspection, there is no evidence that Paugh had expressed any objections

or concerns over the length of time Ebert took to complete his pre-op responsibilities.

Tr. 356.

Ebert testified that he began his pre-op duties by

assisting his partner Harris in watering the tram road as required. Tr. 56-57. The

hose used to accomplish watering the road is the equivalent of a three-quarter

inch garden hose. Tr. 390. Ebert claims the hose was tangled with other cables

along the mine’s ribs. Tr. 59. Therefore, while Harris watered approximately

300 feet of the tram road, Ebert reportedly assisted him by untangling the

water hose to create the slack necessary for Harris to water the entire length

of the road. Tr. 60-61.

In his initial interview with MSHA, Ebert claimed that

it took him only a few minutes to untangle the hose from around the shuttle car

cable. Gov’t Ex. 4 at 2. At trial, Ebert initially testified that untangling

the hose and providing the requisite slack for watering the roadway took approximately

10-15 minutes that day. Tr. 60-61. On cross-examination, he stated that it took

him 15-20 minutes. Tr. 118-119. Minutes later, after further deliberation,

Ebert stated that it took him half an hour. Tr. 120-121.

Next, Ebert testified that before proceeding to his

shuttle car to complete his pre-op duties, he was stopped by two mechanics,

Kirk Roth and Tim Black, who sought information concerning the layout of the

section and directions to the tool car, as they did not normally work on the 14

East Longwall setup section. Tr. 61-62, 243. Black was a union mechanic, and

Roth was a company maintenance foreman. Tr. 62. Ebert claims this conversation

lasted 10-15 minutes. Tr. 119. Black testified that the conversation lasted

around 7-10 minutes. Tr. 245.

Having completed his fireboss duties, Paugh returned to

the power center at approximately 9:55 a.m. and noticed Ebert talking to Roth

and Black, in the same vicinity at which he had last seen Ebert at 9:05 a.m.

Tr. 295-96; Resp’t Ex. 7. Paugh instructed Ebert to begin helping the crew

supply the continuous miner. However, Ebert responded that he could not do so

because he had not yet completed his pre-op. Tr. 295. Paugh told him that

“quite a bit of time had [e]lapsed,” somewhere between 45-50 minutes by his

estimation, and then “asked him why he hadn’t completed his pre-op [in] that

time.” Tr. 296. Ebert testified he explained that he had some difficulty untangling

the hose earlier and that he was then interrupted by Roth and Black, who needed

assistance. Tr. 63, 196. In response, Paugh told Ebert to finish his pre-op.  Tr.

64. Consequently, Ebert continued to his shuttle car and completed the

remaining tasks for his pre-op examination, which he estimated required another

30 minutes. Tr. 64, 82-84.

The evidence with respect to the extent that Ebert assisted

Harris in watering the road is equivocal. Paugh testified that he immediately

sought out Harris to confirm whether Ebert had been assisting him with his

tasks. At that time, he observed Harris still watering the road.     Tr. 300. However,

Paugh did not notice any entanglement of the hose. Tr. 302-03. Paugh testified

that Harris responded he had watered the roads himself, “just like always.” Tr.

300. Paugh testified that although this job was the responsibility of both

Harris and Ebert, Harris did the job himself on the majority of occasions. Tr.

301. Paugh claimed to have spoken to Ebert about this problem before. Tr. 301-02.

Tim Black testified that when he first observed Ebert before engaging him in

conversation, he believed Ebert “was dragging a hose or something.”

Tr. 249.

Paugh testified that, after speaking to Harris, Paugh

returned to Ebert and told him that it was “ridiculous” and “unacceptable” that

Ebert did not finish his pre-op and assist with other tasks as needed during

the preceding approximate 45 minute interval when Paugh was conducting his fire

boss examination. Tr. 308-09. Paugh sought a further explanation from Ebert to

account for Ebert’s apparent inactivity during this period, but did not receive

any. Tr. 308-09. Paugh testified that he told Ebert that his insubordinate

behavior would not be tolerated. Tr. 309. According to Paugh, Ebert responded,

“You do what you got to do.” Tr. 309. Ebert denies that this conversation took

place. Tr. 129-130. However, Ebert does not deny that he was significantly

delayed in completing his pre-op examination duties. Tr. 82-83.

Paugh testified that after failing to get an adequate

explanation from Ebert, he called his own supervisor, Brad Racer, to request

Ebert’s removal from the section. Tr. 310. Paugh testified that he wanted

someone else to remove Ebert from the mine because he wanted to avoid a

confrontation. Tr. 312.

At around 10:20 a.m., after unsuccessfully attempting

to reach the mine superintendent, Paugh called the mine’s general manager, Eric

Grimm, to inform him that he was removing Ebert from the mine. Tr. 313-314.

Then, Paugh took notes to record his version of these events. Tr. 318; Resp’t

Ex. 7.

After completing the pre-op of his shuttle car, at

approximately 10:25 a.m., Ebert proceeded to walk to the continuous miner where

he helped load supplies on a bolter. See Tr. 64, 69, 82-84. The operable

10:25 a.m. time is consistent with Ebert’s testimony that he needed an additional

30 minutes to complete the pre-op of his shuttle car after speaking to Paugh,

who had returned to the power center at approximately 9:55 a.m. Tr. 84, 294. Thus,

the evidence reflects Ebert was not available to engage in production activities

for at least a one hour and 20 minute period, beginning the calculation from approximately

9:05 a.m. when Paugh completed his safety meeting at the power center.

After Ebert completed loading the supplies on the

bolter, he asked Paugh if there was anything else Paugh wanted him to do. Tr.

70. Paugh told him to go to retrieve his shuttle car.

Tr. 70. When Ebert reached the shuttle car, he was greeted by Racer, who

informed him that Paugh had requested Ebert’s removal from the mine. Tr. 70. Ebert

testified that Racer told him that he was being removed for refusing a direct

order and being argumentative. Tr. 71. Ebert testified that he disputed these

charges and told Racer that Roth could corroborate his account. Tr. 71.

When Ebert reached the surface, he clocked out and

went to the human resources (“HR”) department to seek clarification from Amy

Bailey, an HR employee, about his next course of action. Tr. 73-74. Ebert was

paid for the time he worked that day. Tr. 75-76.

Later that day, Paugh spoke with General Manager Grimm,

who ultimately was responsible for disciplining miners. Tr. 319-20, 358-59.

Paugh related to Grimm what had occurred with Ebert and explained his reasons

for removing him from the mine. Tr. 319-20. Paugh also provided Grimm with his

notes. Tr. 362-63; see Resp’t Ex. 7. In addition, Paugh related to Grimm

what Harris reportedly had told him. However, Grimm did not seek to verify this

information from Harris. Tr. 367-68.

Ebert was later contacted by telephone and asked to

appear for a meeting with mine management. Tr. 75-76. The meeting took place

several days after the March 7, 2016, incident. Tr. 265; Resp’t Ex. 10 at 2. At

the meeting, Ebert was accompanied by two union officials.

Tr. 75; 172-73. During the meeting, Grimm asked Ebert to account for his time

during the

“47 minute” period Paugh was absent from the face while conducting his fire

boss duties.

Tr. 367. Grimm concluded that Ebert did not offer a “credible” and “satisfactory

explanation” for “what he did for 47 minutes when he should have been pre-oping

his shuttle car.” Tr. 367.

Following the meeting, Grimm decided to suspend Ebert

for two and a half days for insubordination. Tr. 367-71; Sec’y Ex. 9.

Insubordination is defined, under Marshall County Coal’s Employee Conduct Rule

Number 4, as “refusal or failure to perform work assigned or to comply with

supervisory direction.” Resp’t Ex. 16. Ebert returned to the mine to resume

work on March 15, 2016. Tr. 75-76.

IV.             

Further Findings and Conclusions

a.        Analytical

Framework

Section 105(c) prohibits retaliating

against a miner because of his participation in safety related activities.

Congress provided this statutory protection to encourage miners “to play an

active part in the enforcement of the 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. 95-181, at 35 (1977), reprinted

in Legis. Hist. at 623. It is the intent of Congress that, “[w]henever

protected activity is in any manner a contributing factor to the retaliatory

conduct, a finding of discrimination should be made.” Id . at 624.

The Secretary has the

burden of demonstrating a prima facie case of discrimination. In order to

establish a prima facie case, the Secretary must establish that Ebert engaged

in protected activity, and that Ebert’s March 2016 two-and-a-half day suspension

was motivated, in some part, by that activity. See Sec'y of Labor on behalf

of Pasula v. Consolidation Coal Co. ,

2 FMSHRC 2786, 2797-2800 (Oct. 1980) rev'd on other grounds sub nom.

Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir. 1981); Sec'y

of Labor on behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC 803,

817-18 (Apr. 1981).

Marshall County may rebut a prima facie case by

demonstrating, either that no protected activity occurred, or, that Ebert’s

suspension was not motivated in any part by his protected activity. Robinette ,

3 FMSHRC at 818 n.20. Consequently, Marshall County seeks to challenge Ebert’s

discrimination complaint by asserting that his suspension was solely predicated

on a legitimate business justification. Specifically, Marshall County contends

that Ebert’s March 7, 2016, failure to timely perform the pre-op duties

required of a shuttle car operator was the sole basis for his suspension.

Marshall County may also affirmatively defend against

a prima facie case by establishing that it was also motivated by unprotected

activity, i.e., a failure to timely perform pre-op examination duties, and that

it would have taken the adverse action for the unprotected activity alone. See

also Jim Walter Resources , 920 F.2d 738, 750 (11th Cir. 1990), citing

with approval E. Associated Coal Corp. v. FMSHRC , 813 F.2d 639, 642 (4th

Cir. 1987); Donovan v. Stafford Constr. Co. , 732 F.2d 954, 958-59 (D.C.

Cir. 1984); Boich v. FMSHRC , 719 F.2d 194, 195-96 (6th Cir. 1983)

(specifically approving the Commission's Pasula-Robinette test).

The Secretary contends that Ebert’s protected

activities were a motivating factor in Marshall County’s decision to suspend

Ebert. It is undisputed that Ebert had a reputation for being a safety advocate

during his seven year employment at the mine. In addition, the Secretary relies

on a series of safety related concerns communicated by Ebert to Paugh during

the weeks preceding his March 2016 suspension.

When viewed in a vacuum, given the undisputed

knowledge and coincidence in time of the protected activities relied upon by

the Secretary, the Secretary has presented sufficient prima facie evidence “‘from

which the trier of fact could infer retaliation.’” Metz v. Carmeuse

Lime, Inc. , 34 FMSHRC 1820, 1824 (Aug. 2012) (quoting Turner v. Nat’l

Cement Co. of Cal. ,

33 FMSHRC 1059, 1065 (May 2011)). (Emphasis added).

Marshall County has not disputed this series of safety

related complaints voiced shortly before Ebert’s suspension. Despite Ebert’s

history of expressing safety concerns, Marshall County seeks to rebut Ebert’s

proffered prima facie case by contending that Ebert’s safety related activities

played no role in its decision to suspend him.

b.      

Alleged Business Justification

The evidence reflects that during the

day-shift beginning at 8:00 a.m. on March 7, 2016, Paugh and his crew traveled

to the 14 East Longwall setup section, arriving at the power center at

approximately 9:00 a.m., at which time Paugh conducted his daily roof control

meeting with his crew. Tr. 305. At approximately 9:08 a.m., Paugh left the

power center to perform his fireboss duties, returning to the power center at

approximately 9:55 a.m. Tr. 292-93. During this approximate 47 minute interval,

Paugh expected Ebert and Harris to water the relevant roadway and perform pre-operational

examinations for each of their respective shuttle cars. Tr. 56, 291.

Upon his return to the power center at

approximately 9:55 a.m., Paugh observed Ebert talking to Roth and Black. Tr.

294-96. Black testified that the conversation with Ebert was about the layout

of the section and directions to the tool car. Tr. 243. Upon approaching them,

Paugh requested that Ebert help supply the continuous miner. Tr. 295. At that

time, Ebert informed Paugh that he was unable to assist because he had not yet performed

a pre-op examination of his shuttle car. Tr. 63. Ebert estimated that he needed

an additional 30 minutes to perform the pre-op on his shuttle car. Tr. 64,

82-84.

To account for his failure to pre-op his

shuttle car, Ebert told Paugh that he was delayed because he had some

difficulty untangling the hose in preparation for assisting Harris with watering

the tram roadway. He also told Paugh that his pre-op was further delayed

because of his conversation with Roth and Black. Tr. 63-64.

Paugh questioned Harris to determine if

Ebert’s explanation for failing to pre-op his shuttle car during the 47 minute

interval that had elapsed was justified. Paugh testified that he asked Harris

if Ebert had helped him water the road. Paugh testified that Harris responded

that he had done the watering by himself, “just like always.” Tr. 300.

Paugh’s recollection at trial is somewhat

inconsistent with his March 7, 2016, contemporaneous notes for the disciplinary

action taken that day with respect to the degree that Ebert did, or did not,

participate in watering the tram roadway. The notes, when read in conjunction

with Paugh’s testimony, reflect that when Paugh returned from his fireboss

duties at 9:55 a.m., he found Ebert talking to Roth and Black at the power

center. Tr. 295-96; Resp’t Ex. 7. It is not difficult to imagine Paugh’s state

of mind when he found Ebert at the power center at 9:55 a.m., the very same

location in which he had last seen him at approximately 9:05 a.m., when Paugh

had departed to conduct his fireboss duties. When asked why Ebert did not

complete the pre-op of his shuttle car, the notes reflect that Ebert replied

that he “had to help stretch out [the] wash down hose.” The notes further

reflect that Harris stated that “this only took a couple minutes to do.” Resp’t

Ex. 7.

In any event, both Paugh’s testimony and

his contemporaneous notes reflect that Paugh did not believe the “tangled hose”

explanation was an adequate justification for the pre-op delay. In this regard,

Paugh’s contemporaneous notes further reflect that Paugh concluded that if it

took five minutes to stretch the hose, “that leaves 42 minutes to complete

[the] pre-op, which was not done.” Id .

Although Ebert denies that this

conversation occurred, Paugh testified that, given Harris’s failure to corroborate

Ebert’s story, Paugh told Ebert that it was “ridiculous” and “unacceptable”

that Ebert had not performed his shuttle car pre-op or assisted with other pre-op

duties, and that Ebert’s insubordination would not be tolerated. Tr. 129-30, 308-09.

Paugh further testified that Ebert responded, “‘You do what you got to do.’” Tr.

309.

To avoid a confrontation with Ebert, Paugh

asked Racer, Paugh’s immediate supervisor, to remove Ebert from the mine. Tr.

310-12. A disciplinary meeting was conducted by

Mine Manager Grimm on March 9, 2016. Resp’t Ex. 10. Participants at the meeting

included members of mine management, Ebert, and union President Thomas McGary

as well as union Vice-President Ryan Sparks. Id. Paugh was not present

at the meeting and did not have the authority to suspend Ebert. Id. ; Tr.

283. After hearing Ebert’s account of the events of March 7, 2016, Grimm

concluded that Ebert did not adequately explain why he had not begun the pre-op

examination of his shuttle car for 47 minutes. Tr. 367. Consequently, Grimm

imposed a two-and-a-half day suspension as a sanction against Ebert. Tr.

367-71.

The parameters for analyzing a claimed

business justification for disciplining a miner who has brought a

discrimination claim before this Commission are well settled. The Commission

has addressed the proper criteria for considering the merits of an operator's

asserted business justification:

Commission

judges must often analyze the merits of an operator's alleged business

justification for the challenged adverse action. In appropriate cases, they may

conclude that the justification is so weak, so implausible, or so out of line

with normal practice that it was mere pretext seized upon to cloak discriminatory

motive. But such inquiries must be restrained.

The

Commission and its judges have neither the statutory charter nor the

specialized expertise to sit as a super grievance or arbitration board meting

out industrial equity. Once it appears that a proffered business justification

is not plainly incredible or implausible, a finding of pretext is

inappropriate. We and our judges should not substitute for the operator's

business judgment our views on “good” business practice or on whether a

particular adverse action was “just” or “wise.” The proper focus, pursuant to Pasula ,

is on whether a credible justification figured into the motivation and, if it

did, whether it would have led to the adverse action apart from the miner's

protected activities.

Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp. ,

3 FMSHRC 2508, 2516-17 (Nov. 1981) (citations omitted), rev'd on other

grounds , 709 F.2d 86 (D.C. Cir. 1983).

The Commission subsequently further explained

that it is not the role of the judge to substitute his or her judgment for that

of the mine operator if the proffered business justification is facially

reasonable. The Commission stated:

[A]

judge, in carefully analyzing such defenses, should not substitute his business

judgment or a sense of “industrial justice” for that of the operator. As we

recently explained, “Our function is not to pass on the wisdom or fairness of

such asserted business justifications, but rather only to determine whether

they would have motivated the particular operator as claimed.”

Haro v. Magma Copper Co. , 4 FMSHRC 1935, 1938 (Nov. 1982)

(citations omitted).

The Commission has addressed the parameters for showing

that a mine operator’s explanation for the adverse action complained of is not

credible. Consistent with Turner , the Secretary must demonstrate that

Marshall County’s reasons for suspending Ebert either: (1) had no basis  in

fact ; (2) did not  actually  motivate his suspension; or (3)

were  insufficient  to motivate his suspension. See Turner ,

33 FMSHRC at 1073 (citing Madden v. Chattanooga City Wide Service Dep't. ,

549 F.3d 666, 675 (6th Cir. 2008)) (additional citations omitted) (emphasis in

original).

The first and third showings addressed in Turner are

inextricably intertwined. With respect to (1) basis in fact and (3) sufficient

motivation, obviously mine operators have a legitimate interest in requiring

their employees to complete their pre-op examinations in a timely manner. The

evidence reflects that Ebert had not begun the pre-op examination of his

shuttle car during the 47 minute period following the termination of Paugh’s

roof control meeting at the power center. Ebert testified that he needed

approximately 30 additional minutes to complete his pre-op examination when

Paugh requested, at 9:55 a.m., that he help load the continuous miner. Tr.

82-84. Thus, by his own admission, Ebert would not have been able to place his

shuttle car in service or perform other routine activities as assigned until

approximately 10:25 a.m.

Determining whether the 47 minute delay provides a

reasonable justification for Marshall County’s suspension of Ebert requires

consideration of the chronology of the March 7, 2016, events. Ebert testified

that his conversation with Roth and Black lasted approximately 10-15 minutes. Tr.

119. Black testified that the conversation took 7-10 minutes. Tr. 245. Thus, I

conclude that the conversation with Roth and Black took no more than 15 minutes.

This leaves approximately 32-37 minutes during which time Ebert failed to perform

a pre-op examination of his shuttle car. In justifying this failure, Ebert, in

effect, claims that it took him and Harris this period of time to jointly

untangle the equivalent of a garden hose and water the roadway. Tr. 66. Thus,

Ebert would have Marshall County believe that it took the equivalent of between

64 and 74 man minutes to water the roadway.

While it is true that the right to conduct a thorough

pre-op examination is protected, it is also true that operators retain the

authority to ensure that pre-op examinations are not unjustifiably delayed. The

evidence reflects, when viewed in context, that Ebert’s “tangled hose”

explanation for the significant delay in the completion of his pre-op

examination duties is not credible. It is noteworthy that Ebert has not

adequately explained how long his reported attempts to untangle the hose

delayed completion of his pre-op duties. In this regard, as previously noted, Ebert

initially testified that this task took 10-15 minutes that day. Tr. 61. On

cross-examination, he stated that it took him 15-20 minutes. Tr. 118-119.

Minutes later, after further deliberation, Ebert stated that it took him half

an hour. Tr. 120-121. In his initial interview with MSHA, Ebert claimed that

the task took him only a few minutes. Gov’t Ex. 4 at 2. Consequently, I find

that Marshall County’s rejection of Ebert’s claimed justification for the delay

in performing his pre-op examination on March 7, 2016, must be viewed as a

legitimate exercise of its business judgment. Therefore, the record, on

balance, reflects that Marshall County had a reasonable business justification

for disciplining Ebert.

c.       

Alleged Discriminatory Motive

Having determined that the reasons advanced by

Marshall County for Ebert’s suspension were both factual and sufficient to

motivate its disciplinary action, the first and third elements contemplated by Turner

support Marshall County’s claimed business rationale. We now turn to the second

element in Turner : whether Ebert’s untimely pre-op examination actually

was the sole motivation for his suspension. Ebert’s suspension was consistent

with Marshall County’s permissible conduct rule that prohibits “refusal or

failure to perform work assigned or to comply with supervisory direction.” Resp’t

Ex. 16. The rationale given to Ebert at the time of his suspension is

consistent with the rationale proffered by Marshall County during the course of

this proceeding. However, Marshall County does not simply prevail by showing

that its justification for suspending Ebert was not implausible or otherwise

pretexual. The Secretary may still prevail by showing that the operator was

motivated, at least in part, by Ebert’s protected activities.

As noted, the Commission has recognized that it is not

uncommon for operators to attempt to mask discriminatory motivation by

asserting that unprotected activity is the sole justification for the adverse

action complained of. Chacon , 3 FMSHRC at 2516-17. In evaluating whether

an operator’s claimed business justification is disingenuous, the Commission

has noted that direct evidence of a discriminatory motive is rare. As such,

discrimination can usually only be demonstrated through circumstantial

evidence. Id. at 2510 (quoting NLRB v. Melrose Processing Co. ,

351 F.2d 693, 698 (8th Cir. 1965)).

The Commission has identified that some of the more

common circumstantial indicia of discriminatory intent are: 1) knowledge of the

protected activity and coincidence in time between the adverse action and that

protected activity; 2) hostility or animus towards the protected activity; and 3)

disparate treatment of the complainant. Id.

To successfully demonstrate a discriminatory motive by

indirect evidence requires a rational connection between the indirect evidence

and the fact in issue, i.e., the motivation for Ebert’s suspension. See

Garden Creek Pocahontas , 11 FMSHRC 2148, 2153 (Nov. 1989) (citing

Mid-Continent Resources, Inc. , 6 FMSHRC at 1132, 1138 (May 1984)) (noting

that there must be a rational connection between the evidentiary facts and the

adverse action complained of).

An evaluation of whether there is sufficient indirect evidence of

discriminatory intent follows.

i.      

Knowledge and Coincidence in Time

Marshall County does not dispute that Ebert had a

reputation as a safety advocate who frequently brought safety related issues to

his supervisors’ attention. Tr. 340. It is also undisputed that Ebert

communicated at least five safety related concerns to Paugh in the weeks

preceding his March 2016 suspension. Paugh’s knowledge of Ebert’s expressed

safety concerns is imputed to Grimm. See Turner , 33 FMSHRC at 1068

(holding that a supervisor’s knowledge of protected activity may be imputed to

a decision maker without such knowledge, who nonetheless relied on the

supervisor’s recommendation). Moreover, there is a coincidence in time between

these expressed safety related concerns and Ebert’s suspension. Thus, two of

the circumstantial elements identified in Chacon have been demonstrated.

However, in apparent recognition that coincidence in time and knowledge, alone,

may be inadequate to infer a discriminatory motive, the Secretary also asserts an

animus toward Ebert’s safety related activities, and, that Ebert was the victim

of disparate treatment. Whether the Secretary has adequately demonstrated that

these two elements of Chacon played a role in Ebert’s suspension is

discussed below.

ii.      

Animus

The Secretary alleges that Paugh exhibited hostility toward

Ebert as a consequence of the following safety related concerns which were

communicated to Paugh in the weeks preceding his suspension: (1) Ebert’s

insistence on ensuring adequate roof bolting before continuing production in a

working section; (2) Ebert’s concern regarding a defect in the brakes on an

emergency ride; (3) Ebert’s suggested safer alternative method for retrieving

supplies from the end of a track; (4) Ebert’s insistence that the safe

anchoring of a power cable required installation of an anchor bolt rather than

reliance on a rib strap; and (5) Ebert’s concern regarding an excessive number

of supply cars at the end of a section track. Sec’y Br. at 10, 14.

In evaluating whether there is sufficient evidence to infer

animus toward protected activity, it is helpful to consider, by analogy, the

Commission’s longstanding case law with respect to a protected work refusal. In

this regard, once a miner expresses a good faith, reasonable belief in a

hazard, the focus shifts to whether the mine operator addressed the miner’s

concern “in a way that his fears reasonably should have been quelled.” Gilbert

v. FMSHRC , 866 F.2d 1433, 1439 (D.C. Cir. 1989). Significantly, Ebert’s

testimony reflects that Paugh adequately responded to each of Ebert’s enumerated

safety related concerns by taking appropriate remedial actions.

Despite Paugh’s responses to Ebert’s complaints, the

Secretary relies on Ebert’s self-serving assertion that these complaints were

not welcomed by Paugh. In this regard, Ebert testified that he perceived Paugh

as being “angry,” “irritated,” and “upset” over Ebert’s expressions of safety

related concerns. Tr. 103, 108, 113. Ebert also alleges that Paugh accused Ebert

of “always trying to shut [him] down.” Tr. 100.

On balance, the evidence is insufficient to infer

hostility on the part of Paugh based on Ebert’s self-serving accounts without sufficient

supporting evidence by a witness, or, objective evidence of discriminatory

intent, such as relevant past verbal or written disciplinary actions. It is

true that Cross testified that Paugh was “not happy” about having to install a

roof bolt instead of using a rib strap as an anchor for a power cable because

Paugh apparently believed that the rib strap did not jeopardize the integrity

of the cable’s outer jacket. Tr. 222. It would be naïve to think that a mine

foreman will always welcome a subordinate miner’s insistence on an alleged

safety related remedy which the foreman believes is unnecessary. Of course,

operators should err on the side of caution when deciding whether to address

reasonable safety related concerns expressed by miners. Thus, it is the totality

of the foreman’s response which is dispositive of the issue of animus.

I am cognizant that hostility to safety related

complaints can cause a chilling effect. However, the record does not reflect

objective evidence of hostility in this case. There is no evidence of any

adverse action suffered by Ebert at the hands of Paugh, either before or after

his March 7, 2016, suspension, as a result of Ebert’s practice of performing

thorough pre-op examinations or because of his expressed safety related

concerns. To assume animus as a motivating factor requires the conclusion that

Marshall County implemented a “lying in wait” strategy by disingenuously

seizing upon Ebert’s failure to adequately explain the reason for the delay in

completing his pre-op examination duties. Such an assumption is a bridge too

far based on the evidence of record.

Although Cross testified that Paugh was “not the best”

about responding to safety complaints, Cross also testified that he never

personally experienced a problem with Paugh with respect to any of his safety

related concerns. Tr. 222-23. Cross’s equivocal testimony is insufficient to

satisfy the Secretary’s burden of demonstrating animus.

Notwithstanding the Secretary’s claimed animus toward

Ebert’s history of protected activity, the Secretary relies on general concerns

about a loss of productivity as additional indirect evidence of animus. In this

regard, the Secretary sought to elicit testimony from Paugh that Paugh resented

Ebert’s safety complaints because they resulted in an interruption of

production. The following testimony elicited from Paugh by the Secretary’s

counsel is illustrative:

Q. Okay. Now, Mr. Paugh, Mr. Ebert is clearly a safety

advocate; is that fair to say?

[A]: Yes. . . .

Q. And he'll bring safety issues he observes to you,

correct?

A. Yes.

Q. And when those issues have to be addressed, they

can slow down production?

A. Not always.

Q. But sometimes, right?

A. Yes.

Q. So, for example,

. . . [d]id [the] roof control plan for the mine only allow for you to  have

four unbolted entries, right?

A. Yes.

Q. And before you can begin mining a fifth, you have

to roof bolt the first, right?

A. Yes.

Q. So if Mr. Ebert

was to bring that issue to your attention, it would certainly slow down

production?

A. Yes.

Q. And it would take probably over an hour to bolt an

entire entry, right?

A. An entire entry?

Q. Yes.

A. It could.

Q. And it is your job to try to maximize production,

right?

A. Yes.

Tr. 340-42.

The Commission has concluded that the goal of

maximizing production is a legitimate business motivation as long as it does

not interfere with a miner’s statutory right to engage in protected activity. Sec’y

of Labor on behalf of Zecco v. Consolidation Coal Co. , 2 FMSHRC 985, 994

(Sept. 1999). Consequently, management’s desire to “maximize production” is

not, in and of itself, evidence of a discriminatory motive as long as safety

related concerns are not subordinated. To hold otherwise would be tantamount to

concluding that an operator’s interest in maximizing production is

discriminatory per se.

Finally, the Secretary seeks to infer animus by

asserting that Grimm’s inquiry into the facts surrounding Paugh’s suspension

was inadequate by virtue of the fact that Grimm “did not interview Harris,

Black, or Roth, all of whom could have confirmed either Paugh or Ebert’s

version of events.” Sec’y Br. at 15. Grimm testified that he did not find

Ebert’s explanation for the significant delay in the completion of Ebert’s pre-op

examination duties to be plausible. Grimm’s inquiry afforded Ebert significant

procedural protections, in that Grimm’s fact-finding was conducted in the

presence of union officials. Tr. 75. As previously noted, the Commission and

its judges do not sit as a super grievance or arbitration board. Chacon ,

3 FMSHRC at 2516-17. It is not within the purview of a Commission judge to

substitute how the judge would have conducted the inquiry, provided that the

inquiry was not so perfunctory or otherwise procedurally deficient to suggest

an underlying animus.

In the final analysis, the reported self-serving

perceived hostility of Paugh, a general company goal of maximizing production,

and the claimed insufficiency of Grimm’s inquiry, do not provide an adequate

basis for inferring animus.

iii.      

Disparate Treatment

In order to prevail with respect to a claim of

disparate treatment, the Secretary must show that a similarly situated employee

who committed the same or a more serious offense did not suffer the same

disciplinary fate as the complainant.  See Dreissen v. Nevada

Goldfields, Inc.,  20 FMSHRC 324, 331 n.14 (Apr. 1998) (citing  Schulte

v. Lizza Indus., Inc.  6 FMSHRC 8, 16 (Jan. 1984);  Chacon,  3

FMSHRC at 2512).

The Secretary alleges that Paugh treated Ebert differently

from shuttle car operator   John Harris, who was still watering the road when Paugh

returned from his fireboss run at 9:55 a.m. By virtue of Harris’s watering

activities, the Secretary asserts that Harris, like Ebert, had not completed

his pre-op duties by 9:55 a.m. Therefore, the Secretary alleges that Paugh’s

failure to discipline or even question Harris constitutes disparate treatment. Sec’y

Br. at 16-17.

Paugh testified that when he saw Harris watering the

road at approximately 9:55 a.m., he assumed Harris had already completed his

pre-operational inspection of his shuttle car, which Paugh testified routinely

took Harris 10-15 minutes. Tr. 346-47. Paugh further testified that Harris

informed him that Ebert had not assisted him in watering the roads that

morning. Tr. 300. Consequently, Paugh testified that Harris refuted Ebert’s

claim that he was busy helping Harris water the road. See Tr. 300.

In any event, at approximately 9:55 a.m., Paugh

observed Harris fulfilling his watering duties and actively working. Tr. 302. At

that time, in contrast, Paugh observed Ebert near the power center, where he

had last seen him, talking with Roth and Black. Tr. 294-95, 298. When Paugh

broke up that conversation by requesting that Ebert help supply the continuous

miner, he first learned that Ebert had not yet begun the pre-op of his shuttle

car, which Ebert estimated would take approximately an additional 30 minutes. Tr.

82-84; 295. Consequently, as previously noted, the record reflects that Ebert

was not available to perform his routine shift duties, such as supplying the continuous

miner and operating his shuttle car, until approximately 10:25 a.m.

The Secretary’s assertion that Harris was similarly

situated is speculative. It is unclear whether Harris, like Ebert, would not have

been available until later that morning to resume his operational duties. It is

equally unclear whether Ebert had done any meaningful work that morning prior

to his encounter with Paugh at 9:55 a.m. While it is true that Marshall County

could have called Harris to support Paugh’s testimony, it is also true that the

Secretary could have called Harris to support Ebert’s testimony. Neither having

availed themselves of Harris’s testimony, on balance the weight of the evidence

must be given to Paugh, given that the Secretary bears the burden of proof in

this discrimination proceeding. Thus, the evidence presented by the Secretary

is insufficient to warrant the conclusion that Ebert was the victim of

disparate treatment.

In sum, the Secretary has demonstrated indirect

evidence consisting of knowledge and coincidence in time. However, the

Secretary has failed to demonstrate animus and disparate treatment. As

previously noted, successfully relying on indirect evidence to prove a

discriminatory motive requires a rational connection between the indirect

evidence and Ebert’s suspension . Garden Creek Pocahontas , 11 FMSHRC at

2153. Reliance solely on Marshall County’s knowledge of Ebert’s protected

activity that occurred shortly before his suspension to infer discriminatory motive

is inadequate in this case, when Ebert’s transgression was sufficiently serious

in nature to warrant a reasonable disciplinary response. Simply put, a miner’s

exercise of protected activity shortly before the disciplinary action

complained of does not insulate the miner from the consequences of conduct that

an operator reasonably views as unacceptable. Significantly, the two-and-a-half

day suspension imposed on Ebert was not disproportionate or overly harsh, and, thus

is not indicative of a discriminatory motive.

Having determined that Marshall County has

successfully rebutted the Secretary’s case by adequately demonstrating that

Ebert’s suspension was not motivated, in any part, by his protected activity, I

need not address the alternative affirmative defense raised by Marshall County.

ORDER

In view of the above, IT IS ORDERED that

Marshall County’s motion to dismiss the subject discrimination complaint as

untimely IS DENIED .

The Secretary has failed to present sufficient

circumstantial evidence to demonstrate that Ebert’s March 2016 suspension was

motivated, in any part, by his protected activity. Consequently, IT IS FURTHER

ORDERED  that the discrimination complaint filed by the Secretary of

Labor on behalf of Carl Ebert  IS DENIED .

As such,  IT IS FUTHER ORDERED  that

Docket No. WEVA 2016-565-D 

IS DISMISSED .

/s/

Jerold Feldman

Jerold

Feldman

Administrative

Law Judge

Distribution: (Electronic and Certified Mail)

Jessica R. Brown, Esq., Office of the Regional Solicitor, U.S. Department

of Labor, Suite 630 E, The Curtis Center, 170 S. Independence Mall West,

Philadelphia, PA 19106-3306 [email protected]

Philip Kontul, Esq., Ogletree, Deakins, Nash, Smoak & Stewart,

P.C., One PPG Place, Suite 1900, Pittsburgh, PA 15222

[email protected]

Laura P. Karr, United Mine Workers of America, 18354 Quantico Gateway

Drive, Suite 200, Triangle, VA 22172

[email protected]

[1] The United Mine Workers of America (“UMWA”) filed an

unopposed post-hearing Entry of Appearance on September 29, 2017. However, the

UMWA has not filed any briefs in this matter. A copy of this decision has been

provided to the UMWA.

[2] There is an error in the pagination of the two-volume

hearing transcript. Volume 1 ends at page 262. However, Volume 2 begins at page

163, instead of page 263. Consequently, in citing Volume 2 in this decision,

the number 100 has been added to each of the numbered pages in Volume 2 so that

the transcript pages can be cited consecutively. By way of illustration, page

164 in Volume 2 would be cited as page 264.

[3]

Section 105(c)(1), provides, in pertinent part:         

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 . . . because such miner . . . has filed or made

a complaint under or related to [the Act], including a complaint notifying the

operator … of an alleged danger or safety or health violation in a coal or

other mine, … or because of the exercise by such miner … of any statutory right

afforded by [the Act].

[4] For the purposes of this decision, the term “pre-op”

examination is synonymous with the term “pre-shift” examination.

[5] Ebert raised an additional safety related concern expressed

to Paugh regarding the location of a refuge chamber during a March 2016 interview

with an MSHA special investigator at MSHA’s District 3 Field Office in

Clairsville, Ohio. See Sec’y Ex. 4 at 6. This incident was not addressed

during testimony.