Secretary of Labor obo Kevin R. Shaffer v. The Marion County Coal Company (ALJ decision, January 16, 2018)

Plain-English summary

Kevin Shaffer complained that a haul truck's transmission twice jumped from neutral into reverse and asked his supervisor for different work. Marion County Coal reassigned him, but suspended him the next day and later moved to discharge him after a disputed confrontation with the supervisor. The company said Shaffer was disciplined for threats and insubordination, while the Secretary alleged that the timing supported an inference of retaliation for protected safety activity. Judge Jacqueline R. Bulluck held that the conflicting accounts could not be resolved at the temporary-reinstatement stage and that the complaint was not clearly lacking in merit. She ordered Marion County Coal to reinstate Shaffer to his mobile-equipment-operator position at the same pay and benefits, and the Commission later affirmed.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Kevin Shaffer was temporarily reinstated effective December 31, 2017.
• Subsequent review: The Commission affirmed temporary reinstatement in weva-2018-117-d-commission.
• Key point: An operator's asserted misconduct reason does not defeat temporary reinstatement when conflicting evidence leaves a non-frivolous connection between protected safety activity and discharge.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,

NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

SECRETAR Y O F LABOR                                  :                 TEMPORARY

REINSTATEMENT

MIN E SAFET Y AN D

HEALTH                     :                 PROCEEDING

ADMINISTRATIO N

(MSHA), on                  :    

behalf of KEVIN R. SHAFFER,                      :                 Docket

No. WEVA 2018-117-D

Complainant                                  :                 MORG-CD-2018-01

:                            

v.                                                   :                

:

THE MARION

COUNTY                                   :                 Marion County Mine

COAL COMPANY,                                         :                 Mine ID: 46-01433

Respondent                                    :                

ORDER GRANTING TEMPORARY REINSTATEMENT

Before:                        Judge Bulluck

This matter is

before me upon Application for Temporary Reinstatement filed by the Secretary

of Labor (“Secretary”) on December 4, 2017, pursuant to section 105(c)(2) of

the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(c)(2), seeking

an order requiring The Marion County Coal Company (“Marion County Coal”) to

temporarily reinstate Kevin R. Shaffer to his former position of mobile

equipment operator at Marion County Coal’s Marion County Mine, at the same rate

of pay and benefits. Section 105(c) prohibits operators from discharging or

otherwise discriminating against miners who have engaged in safety-related

protected activity, and authorizes the Secretary to apply to the Commission for

temporary reinstatement of miners, pending full resolution of the merits of

their complaints. The Application is supported by the Declaration of MSHA Special

Investigator Clarence Moore, III, and a copy of the Discrimination Complaint

filed by Shaffer with MSHA on November 1, 2017. The Application alleges that Shaffer

was terminated by Marion County Coal because he made safety complaints to

management about mobile equipment that he had been operating, and requested alternative

work due to the unsafe condition of the equipment.

Based

on Marion County Coal’s election to brief the issue in lieu of a hearing, the

parties agreed to an effective date for temporary reinstatement of December 31,

2017, and filed simultaneous briefs on January 9, 2018. The Secretary’s Brief

in Support of the Application for Temporary Reinstatement (“Secretary’s Brief”)

is supported by a copy of Special Investigator Clarence Moore’s Declaration. Marion

County Coal’s Brief Opposing Temporary Reinstatement (“Opposition”) is

supported by copies of the following: arbitration transcript of November 17,

2017 (Attachment A), and associated arbitration Decision and Award of December

11, 2017 (Attachment H); Marion County Coal’s Employee Conduct Rules

(Attachment B); statement of Marion County Coal supervisor Adam Bond of October

19, 2017 (Attachment C); statement of Wheeling Diesel Shop mechanic Paul Dixon,

undated (Attachment D); notes of Adam Bond regarding an August 14, 2017 Verbal

Warning issued to Shaffer, undated (Attachment E); Disciplinary Notice to Shaffer

of August 10, 2013 (Attachment F); and letter of suspension with intent to

discharge Shaffer of October 23, 2017 (Attachment G).

Procedural

Framework

The

scope of this proceeding is governed by the provisions of Commission Rule 45(c),

which limits the inquiry to a “not frivolously brought” standard by providing

that “[i]f no hearing is requested, the Judge assigned to the matter shall

review immediately the Secretary’s application and, if based on the contents

thereof the Judge determines that the miner’s complaint was not frivolously

brought, he shall issue immediately a written order of temporary

reinstatement.” 29 C.F.R. § 2700.45(c).

It

is well settled that the “not frivolously brought” standard is entirely

different from the scrutiny applicable to a trial on the merits of the

underlying discrimination complaint. In Jim Walter Resources, Inc. v. FMSHRC ,

the 11th Circuit Court of Appeals explained the standard as follows:

The legislative

history of the Act defines the ‘not frivolously brought’ standard as indicating

whether a miner’s ‘complaint appears to have merit’ -- an interpretation that

is strikingly similar to a reasonable cause standard. In a similar context

involving the propriety of agency actions seeking temporary relief, the former fifth

circuit construed the ‘reasonable cause to believe’ standard as meaning whether

an agency’s ‘theories of law and fact are not insubstantial or frivolous .’

. . .

Congress, in

enacting the ‘not frivolously brought’ standard, clearly intended that

employers should bear a disproportionately greater burden of the risk of an

erroneous decision in a temporary reinstatement proceeding. Any material loss

from a mistaken decision to temporarily reinstate a worker is slight; the

employer continues to retain the services of the miner pending a final decision

on the merits. Also, the erroneous deprivation of the employer’s right to

control the makeup of his workforce under section 105(c) is only a temporary

one that can be rectified by the Secretary’s decision not to bring a formal

complaint or a decision on the merits in the employer’s favor.  

920

F.2d 738, 747-48 n.11 (11th Cir. 1990) (citations omitted) (footnotes omitted).

Ruling

The

Mine Act accords to miners and miners’ representatives protection from

discharge or other discriminatory acts, based on their exercise of any

statutory right under the Act. 30 U.S.C. § 815(c). The Commission has

consistently held a miner seeking to establish a prima facie case of

discrimination to proving that he engaged in activity protected by the Act, and

that he suffered adverse action as a result of the protected activity. 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 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette

v. United Castle Coal Co. , 3 FMSHRC 803, 817-18 (Apr. 1981).

The

Secretary’s allegations are based on the findings of the Special Investigator and,

according to his Declaration, the following chronology of events occurred. Sec’y

Br. at 1-3. On October 18, 2017, Kevin Shaffer complained to his supervisor,

Adam Bond, that the transmission of the No. 4 ejector truck that he was

operating, twice jumped out of neutral into reverse, and he requested

alternative work due to the truck’s unsafe condition. Bond reassigned him to a different

piece of equipment. Later that shift, Bond told Shaffer that Wheeling mechanic

Paul Dixon had reported to him that he saw Shaffer driving without headlights. Shaffer

responded by denying Dixon’s claim, and Bond, in turn, responded “I’m tired of

this fucking shit on this equipment.” The next day, Bond recounted the

confrontation in an email that he sent to Marion County Coal’s human resources

department, alleging that Shaffer had cursed at him and made physical threats. That

day, Marion County Coal suspended Shaffer pending an investigation, and then,

on October 23, suspended him with intent to discharge. Moore concluded that

Shaffer’s Complaint, alleging that he was discharged for engaging in protected

activity, was not frivolously brought. Sec’y Br. Attach. A at 2-3.  

Marion

County Coal’s Opposition cites to portions of the arbitration testimony and

written statements to establish that the operator was not motivated by Shaffer’s

safety complaints or refusal to operate unsafe mobile equipment when it

terminated him and, therefore, that the Complaint was frivolously brought. According

to Bond’s testimony and written statement, on October 18, 2017, Shaffer radioed

him that the No. 4 truck that he was operating was malfunctioning. Resp’t Br.

Attachs. A at 51; C. Bond further averred that, consistent with the manner in

which he routinely handles such complaints, he told Shaffer to stop operating

the truck, he called mechanic Dixon to service it, and he assigned Shaffer to a

different truck. Resp’t Br. Attachs. A at 51-52, 55; C. Shaffer’s testimony corroborates

that Bond did, indeed, take those actions. Resp’t Br. Attach. A at 253. Later

that shift, according to Bond’s and Dixon’s testimony and written statements, Dixon

notified Bond that he saw Shaffer driving a truck downhill at high speed, without

headlights. Resp’t Br. Attachs. A at 64, 139; C; D. According to them, when Bond

confronted Shaffer about Dixon’s claim, Shaffer told Bond repeatedly “fuck you.”

Resp’t Br. Attachs. A at 65-66, 138-42; C; D. Bond further testified that

Shaffer also told him “I’m going to whip your ass; I’m going to take you to the

gate,” which is generally consistent with his prior written statement. Resp’t

Br. Attach. A at 68; C. Dixon testified that he recalled Shaffer yelling at

Bond about “taking it to the gate,” although his written statement makes no

reference to Shaffer challenging Bond to a fight offsite. Resp’t Br. Attach. A 138-42;

D. According to Bond, he felt threatened by Shaffer, and the next day, he reported

him to human resources. Resp’t Br. Attachs. at 76; C.

Marion

County Coal contends that it terminated Shaffer because he threatened Bond in

violation of its insubordination policy, and because he had similar discipline

in his personnel record. Resp’t Br. at 8; Resp’t Br. Attachs. B; G. It relies on

Fletcher v. Frontier-Kemper Contractors, Incorporated, for the

proposition that a complainant’s violation of company policy supports a finding

that his complaint is frivolous. 34 FMSHRC 2189 (Aug. 2012) (ALJ) (denying an

application for temporary reinstatement where uncontradicted testimony

demonstrated that the complainant violated the operator’s policy prohibiting

working under unsupported roof). Resp’t Br. at 7.

The

operator’s reliance on Fletcher is misplaced here because the parties’

supportive documentation set forth differing accounts of events precipitating

the Complaint, which are not appropriately resolved at this stage of the

proceedings; nor is the arbitration Decision binding on this Commission. See

Sec’y of Labor on behalf of Nickoson v. Mammoth Coal Co. , 34 FMSHRC 1252

(June 2012); Sec’y of Labor on behalf of Williamson v. CAM Mining LLC ,

31 FMSHRC 1085 (Oct. 2009). The Secretary has set forth allegations of adverse

treatment, close in proximity to the protected activity, so as to create a

nexus sufficient to raise an inference of discrimination. Moreover, I note that

Marion County Coal expressly asserts that it does not dispute that Shaffer

engaged in protected activity, and that Bond had knowledge of it. At best, Marion

County Coal has shown its intent to defend its actions at hearing on the basis

of legitimate business-related, non-discriminatory reasons. At this juncture,

it is emphasized that the Secretary ultimately bears the burden of proving

discrimination by a preponderance of the evidence, in order to sustain a

violation under section 105(c). Accordingly, since the allegations of

discrimination, as set forth in the Secretary’s Application, have not been

shown to be clearly lacking in merit, it must be concluded that they are not

frivolous and, therefore, satisfy the lesser threshold in this proceeding.

WHEREFORE ,

the Application for Temporary Reinstatement is GRANTED , and it is ORDERED

that The Marion County Coal Company TEMPORARILY REINSTATE Kevin R.

Shaffer to the position of mobile equipment operator at its Marion County Mine,

at the same rate of pay and benefits, effective December 31, 2017.

/s/

Jacqueline R. Bulluck

Jacqueline

R. Bulluck

Administrative

Law Judge

Distribution:

Jennifer Bluer, Esq., Office of the

Solicitor, U.S. Department of Labor, 170 S. Independence Mall West, Suite 630

East, Philadelphia, PA 19106

Laura Karr, Esq., United Mine Workers of

America, 18354 Quantico Gateway Drive, Suite 200, Triangle, VA 22172

Thomas Smock, Esq., Michael Glass, Esq.,

Jennifer Betts, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One

PPG Place, Suite 1900, Pittsburgh, PA 15222

/tcp