David A. Stache v. Alvin J. Coleman & Son, Inc.

Plain-English summary

Haul-truck driver David Stache raised safety concerns and invoked section 105(c) minutes before his supervisor fired him. Judge David F. Barbour found that Stache established a prima facie discrimination case because management knew of his protected complaints, some were close in time to the firing, and the supervisor called a broken-seat complaint “petty.” But the Judge credited evidence that, before being fired, Stache angrily threw a pen at the supervisor's face. That physical intimidation was substantial enough to justify termination on its own; although the supervisor's comment provoked it, the misconduct was not excusable. The complaint was dismissed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(3)
• Outcome: Stache's discrimination complaint was dismissed because the operator proved it would have terminated him for intimidating his supervisor.
• Key point: Protected safety activity may establish a prima facie case, yet serious physical intimidation can sustain an operator's affirmative defense even when employer provocation contributed to the misconduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710

November 18, 2013

DAVID A. STACHE

Complainant,

v.

ALVIN J. COLEMAN & SON,
INC.,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. YORK
2013-41-DM

No. NE-MD-12-05

Mine: Portable #2

Mine ID: 27-00050

DECISION

Appearances:

David A. Stache, Pro Se, West
Ossipee, New Hampshire

Russell “Butch” Webster, Alvin
J. Coleman & Son, Inc., Conway, New Hampshire, on behalf of Respondent     

Before:   Judge David F. Barbour

This case is before me upon a complaint of
discrimination brought by David A. Stache (“Stache”), a miner, against Alvin J.
Coleman & Son, Inc. (“Alvin Coleman” or “the company”), pursuant to section
105(c)(3) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30
U.S.C. § 815(c)(3). Stache contends that he was unlawfully discharged by Alvin
Coleman on August 8, 2012, because of his protected activities, specifically
his safety complaints to his supervisor, Russell “Butch” Webster. Alvin Coleman
contends that it did not discriminate against Stache who was discharged not for
protected activities, but for physically intimidating Webster.

PROCEDURAL
BACKGROUND

On August 8, 2012, Stache was terminated by Alvin
Coleman. Almost a month later, on September 6, 2012, Stache filed a
discrimination complaint with the Mine Safety and Health Administration
(“MSHA”) pursuant to section 105(c)(2) of the Act.[1]
Discrim. Compl. to MSHA (Sept. 6, 2012). On October 19, 2012, MSHA
determined after an investigation that there was no violation of section 105(c),
and therefore, that Stache’s discharge was not prohibited by the Mine Act. MSHA
Determ. of No Discrim. (Oct. 19, 2012).

Subsequently, on November 7, 2012, Stache filed a
discrimination complaint on his own behalf with the Federal Mine Safety and
Health Review Commission (“Commission”) pursuant to section 105(c)(3) of the
Mine Act. [2] Stache’s
Appeal of MSHA Determ. (November 7, 2012). Stache seeks lost wages from the
date of his termination, August 8, 2012, to the estimated date of his potential
seasonal lay-off, December 14, 2012.[3]
Discrim. Compl. to MSHA (Sept. 6, 2012). A hearing was held on May 21, 2013 in
Ossipee, New Hampshire.[4]

At the hearing, the evidence established the following
chronology of events. On August 8, 2012, Stache failed to inspect and report
that the emergency steering of his haul truck was defective. The defective
emergency steering was cited by an MSHA inspector later the same day. Complainant’s
Ex. 2.[5]
A few hours after the citation was issued, Webster suspended Stache for two
days for failing to inspect and report the defective emergency steering. Id.
After Webster informed Stache that he was suspended for two days, Stache complained
to Webster about safety issues with Stache’s truck and mentioned section 105(c).
A few minutes after that, Webster terminated Stache. Id.

Stache and Webster dispute the reason for the termination. Stache
alleges that he was terminated because he made complaints under the Mine Act. Tr.

32. He claims that after being terminated, he threw a pen at the
    windshield of Webster’s truck. Tr. 32. Webster claims that Stache angrily threw
    the pen at his face prior to being terminated. Tr. 88-89. Webster maintains
    that Stache’s suspension escalated to a termination not because of Stache’s protected
    complaints, but because Stache engaged in extreme misconduct by throwing a pen
    at Webster’s face and by displaying unstable behavior, leading Webster to fear
    Stache was dangerous. Complainant’s Ex. 1-2; Tr. 88-89.

FACTUAL BACKGROUND

THE MINE

Alvin Coleman is a construction company that
employs engineers and skilled construction workers for construction projects. Alvin
J. Coleman & Son, Alvin J. Coleman company website, http://www.ajcoleman.com
(last visited Aug. 20, 2013). [6]
The company also operates a crushing division, consisting of a rock quarry (the
Conway quarry), three crushers and two screening plants. The crushing division
supplies the material needed for the company’s construction projects. Id.
On March 15, 2008, Stache was hired by the company to perform general
maintenance on equipment. Discrim. Compl. to MSHA (Sept. 6, 2012). On December
13, 2008, he was laid off. Id. On April 3, 2009, Stache was recalled and
became a haul truck driver in the crusher division at the Conway quarry. Id;
Complainant’s Ex. 2, at 1. Stache operated the same Caterpillar 769
truck (“769 C”) from April 2009 to his termination on August 8, 2012. Tr. 47, 59-60.
While not explicitly stated, Stache’s daily duties seemed to primarily comprise
of hauling large pieces of rock within the quarry. Complainant’s Ex. 6-7; Tr.
26-28, 48-51.

DRIVER’S VEHICLE
INSPECTION REPORT

The Driver’s Vehicle Inspection
Report (“DVIR”) is a daily report prepared by haul truck drivers regarding any
defects with their haul trucks. Discrim. Compl. to MSHA (Sept. 6, 2012); Complainant’s
Ex. 3. The DVIR instructs drivers to “check any defective item and give details
under remarks.” Id. Below this instruction are three columns which list
approximately 35 components of the truck such as wheels and steering (though
the component “emergency steering” is not explicitly listed). To the left of
each component is a small box. A driver must report a defect by checking the
corresponding box, provide details about the defect in a remarks section, and
report whether the defect was corrected. Complainant’s Ex. 3. Stache testified
that he completed the DVIR at the beginning of each shift and submitted it to
Webster at the end of each shift. Webster received the original copy of each
DVIR, while Stache retained a carbon copy. Tr. 39-40. Stache testified that
Webster reviewed the DVIR of each driver in his office, recorded any reported defects,
and communicated them to a company mechanic who was supposed to fix the defects
in a timely fashion. Tr. 40. Stache testified that the mechanic might take two
weeks or more to repair defects. Id.

HISTORY OF REPORTING
SAFETY ISSUES

Stache had a history of reporting
safety concerns with his 769 C haul truck. In June and September 2011, and in
July 2012, he complained to Webster that his truck was being over-loaded with
large pieces of rock and that the over-loading almost resulted in the truck
tipping over. Complainant’s Ex. 6-7; Tr. 26-28, 48-51. Subsequently, in April
2012, he complained to Webster of an oil leak; he testified that the oil leak
had existed since 2010 without being repaired.[7]
Complainant’s Ex. 8-9; Tr. 51-56. In his DVIRs for the 769 C, betwen July 25-27,
2012, July 30-August 1, 2012, and August 7-8, 2012, Stache reported a defective
air conditioning system, oil, hydraulic and exhaust leaks, a crack in the muffler,
a broken seat, and that the body of the truck needed welding.[8]
Complainant’s Ex. 3; Tr. 35-39. Stache testified that Webster was aware of all these
safety concerns.[9]
Tr. 60.

Stache also testified that Webster
was not responsive to his safety concerns, in that multiple safety issues on
his truck had not been addressed for several years. Tr. 40-41. In this regard,
Webster conceded that he pondered installing a new air conditioning system in
Stache’s truck for several years instead of immediately installing it upon
Stache’s request. Tr. 100-01. However, Webster maintained that he was
responsive to Stache’s safety concerns, at least those made in July and August
2012. Specifically, he discussed the broken seat with Stache, and informed Stache
that the cracked exhaust system was not leaking since it was double-lined. Tr. 69-70.
Stache continued to insist that the exhaust was leaking despite being
double-lined, but conceded that a mechanic, presumably on Webster’s
instructions, in August 2012, repaired the oil leak and informed Stache that the
broken seat would be replaced. Tr. 67-68, 70.

SAFETY MEETINGS

At the hearing, Webster testified
that Alvin Coleman’s policy since 2008 was to suspend employees who committed
safety violations which resulted in MSHA citations. Tr. 80-81. The company regularly
communicated this policy to employees at safety meetings in the hope that it
would make employees more vigilant about the defects on their equipment, and
thus reduce the number of MSHA citations received by the company. Id. At
the hearing, the company introduced records of three safety meetings between
2011 and 2012. On April 21, 2011, employees were informed of the company’s progressive
discipline policy; the first violation of the policy would result in a one day
suspension, the second violation would result in a one week suspension, and the
third violation would result in termination.[10]
Resp’t Ex. 4. On March 30, 2012, the company informed employees that it had “zero
tolerance for [MSHA] citations if [preventing violations is] in your control.”
Resp’t Ex. 2. The company further informed employees that the punishment for
preventable citations would be “time off without pay or termination.” Id.
On April 13, 2012, employees were reminded by the company that “if [you’re]
caught with a violation from MSHA and you hadn’t [sic] reported it on your
paperwork[,] you will be getting time off without pay. [Y]ou are all
responsible for your piece of equipment.” Resp’t Ex. 3. Stache was present
during all three of these safety meetings. Resp’t Ex. 2-4, list of signatures.

MSHA CITATION

On the morning of August 8, 2012, between 6:15
a.m. and 8:00 a.m., Stache was temporarily operating an AT-18 haul truck (the
769 C, which he normally operated, had an oil leak that was being repaired). Discrim.
Compl. to MSHA (Sept. 6, 2012); Complainant’s Ex. 3; Tr. 20, 38, 67. At
approximately 8:00 a.m., after a mechanic finished repairing the 769 C and
informed Stache that the truck “was running,” Stache began operating the 769 C
haul truck. Id., Tr. 73-75. Stache testified at the hearing that
while he quickly inspected the 769 C, “due to production,” he did not have time
to shut down the truck in order to inspect the emergency steering. Tr. 68.

On the same day, a federal
inspector from MSHA arrived at the mine to conduct an inspection. The inspector
approached Stache’s truck, the 769 C, and began inspecting the truck for any
defects while Stache remained inside. Tr. 20-21. The inspector found that the
emergency steering on the truck was defective due to a broken wire. Tr. 21. A
mechanic was called to the truck to fix the defect. Complainant’s Ex. 3; Tr.
21, 38-39. After the emergency steering was repaired, the inspector instructed
Stache to note in his DVIR for August 8 that the defect had been corrected. Tr.
38-39. Later on August 8, at some point between 8:00 a.m. and 3:15 p.m., the
inspector issued a citation to the company due to the defective emergency
steering on Stache’s truck. Complainant’s Ex. 2. Stache was not aware that his
truck had been cited, and he continued to operate the haul truck until approximately
3:15 p.m. when he learned from Webster of the citation Tr. 21-22.

SUSPENSION

At approximately 3:15 p.m., Stache finished his
shift, parked and then exited his truck. Tr. 22, 24-25, 82. At that time, he
noticed Webster driving towards him. Tr. 22. After parking in front of
Stache, Webster got out of his truck, walked over to Stache, and informed him
that he was suspended because he “did not do [a] complete daily inspection[.]
[The] back-up steering on [Stache’s 769 C haul truck] was not checked daily and
was not reported on [Stache’s] daily inspection book.” Complainant’s Ex. 2. Webster
further told Stache that his failure to inspect the emergency steering on his
truck had resulted in a citation which would cost the company $5,000. Tr. 18,
23.[11]

TERMINATION

Upon learning that he was suspended and might
cost the company $5,000, Stache thought “it was going to be a personal fine”
and he “became concerned about the safety issues on [his] truck.” Tr. 18. While
the testimony is not entirely clear, the court finds that the most reasonable
inference to draw from the record is that Stache became worried that he would
be fined $5,000 for receiving a citation, and would also be fined for all
future safety issues with his truck. Stache then mentioned to Webster that the driver’s
seat in his truck was broken. Tr. 18, 97. Specifically, he claimed that a
broken adjustment tool on the seat rendered him unable to adjust the backrest,
thus hurting his back. Tr. 70-71. While it is agreed that Stache mentioned the
broken seat, [12] it is
ambiguous as to whether he mentioned other safety concerns during this
conversation with Webster. At the
hearing, Stache claimed that on August 8, “I explained to [Webster] that I had
a cracked exhaust in the truck; I had no air conditioning in the truck;
excessive noise level; and broken seat.” Tr. 18. However, Webster testified
that Stache did not mention the crack in the exhaust or the lack of
air-conditioning during this conversation.[13]
Tr. 97.

After
Stache mentioned the safety issue(s) with his truck, Webster told Stache that
he was not going to fix “petty ante stuff.” Tr. 18, 30-31.[14]
Stache, who testified that he felt insulted and degraded after Webster
dismissed his safety concern(s) as “petty,” responded by mentioning section 105(c),
presumably complaining that Webster’s “petty” comment was retaliatory.[15]
Tr. 18-19, 30-31. Webster testified that during the conversation, Stache said
“what about [section] 105(c).” Tr. 97. However, Webster argued that on August
8, he did not know the meaning of section 105(c) and that Stache “knew more
about [section 105(c)] than [Webster] did.” Id.

While
there were no stipulated facts, the parties did not dispute the sequence of
events leading up to Stache’s mention of section 105(c). In this regard, the
parties did not dispute that at approximately 3:15 p.m., Stache was suspended
by Webster who informed him that he had cost the company $5,000, that Stache
reacted to this news by mentioning safety issues which Webster characterized as
“petty,” and that Stache responded by mentioning section 105(c).[16]
However, the parties diverge sharply as to the events which occurred after
Stache’s mention of section 105(c).               

Stache claims that his mention of section
105(c) caused a furious Webster to immediately terminate him. Stache testified
that Webster responded by telling him to “get the f off the property, you’re
f*** fired.” Tr. 31. Stache testified that after being terminated, he threw
a pen at Webster’s truck. The pen bounced off the truck’s windshield and almost
hit Webster, who was still standing outside his truck. Tr. 31-32.

Webster claims that Stache was terminated after
he threw a pen at Webster’s face. Webster testified that during the end of the
heated discussion, he asked for Stache’s signature on the notice of suspension.
At that point, Webster testified that Stache “came unglued,” screaming and
shouting that he was “not signing any f** paperwork” before finally
throwing a pen that narrowly missed Webster’s face; the pen flew across
Webster’s face and hit the windshield of Webster’s truck. Complainant’s Ex. 2;
Tr. 101. Webster then decided to terminate Stache, testifying as follows:

[Stache] went off the wall on me, and
threw the pen at me. And, like I said, I considered that a projectile. I mean,
that could have pierced my eye. And he - I don’t know what [is] the word to
use. He acted like he was getting very unstable. He was getting very red in the
face and his eyes were wandering around. I mean, there’s rocks, sticks and everything
there, I could only imagine what was coming at me next. So I decided to defuse
the situation, and that’s when I discharged him.

Tr. 88-89.

THE LAW

In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a miner must demonstrate by a
preponderance of the evidence “(1) that he engaged in a protected activity, and
(2) that the adverse action was motivated in any part by the protected
activity.” Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). The
Commission has noted that “direct evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect.” Sec’y of Labor on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev.
on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C.
Cir. 1983). Circumstantial evidence may include: (1) coincidence in time
between the protected activity and the adverse action, (2) knowledge of
protected activity, (3) hostility or animus toward the protected activity and
(4) disparate treatment. Chacon, 3 FMSHRC at 2510.

Once the complainant has established a prima
facie case of discrimination “[t]he operator may attempt to rebut a prima
facie case by showing either that the complainant did not engage in
protected activity or that the adverse action was in no part motivated by
protected activity.” Sec’y of Labor on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 818 n.20 (Apr. 1981). The operator may also
affirmatively defend by proving by a preponderance of the evidence that it was
motivated by both the miner’s protected and unprotected activities and would
have taken the adverse action for the unprotected activity alone. Robinette,
3 FMSHRC at 818 n.20. The Commission has explained that an affirmative defense
should not be “examined superficially or be approved automatically once
offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative
defenses, the judge must “determine whether they are credible and, if so,
whether they would have motivated the particular operator as claimed.” Bradley v. Belva Coal Co., 4
FMSHRC 982, 993 (June 1982). The Commission has held that “pretext may be found
. . . where the asserted justification is weak, implausible, or out of line
with the operator's normal business practices.” Sec'y of Labor on behalf of
Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). However,
the Commission has also held that “our judges should not substitute for the
operator’s business judgment our views of good business practice.” Chacon,
3 FMSHRC at 2516.

PRIMA FACIE CASE

COMPLAINTS DURING
CONVERSATION ON 8/8/12

On August 8, 2012, at approximately 3:15 p.m.,
immediately after being informed of his suspension, Stache allegedly mentioned
four safety issues with his truck to Webster - cracked exhaust, defective air
conditioning, excessive noise, and a broken seat. Tr. 18, 70-71, 97. Webster
responded by calling Stache’s safety concerns “petty” prompting Stache to ask
“what about [section] 105(c),” presumably complaining that Webster’s “petty” comment
was retaliatory. Tr. 18-19, 30-31. At the hearing, Webster did not dispute that
Stache complained about the broken seat and mentioned section 105(c) during the
August 8 conversation. Tr. 97. Webster also did not dispute that these
complaints were protected under the Mine Act. Id. Webster denies,
however, that Stache complained about the exhaust or air conditioning during the
conversation. Tr. 97.[17]

First, the court considers whether Stache can establish
a prima facie case based on his undisputed complaints during the August
8 conversation - that he was unable to adjust the backrest on the driver’s seat
of his truck and that he mentioned section 105(c). Tr. 18, 70-71, 97. The court
finds that both these complaints were protected. Stache’s complaint regarding
the broken seat was protected as a safety complaint, despite Webster’s opinion
that the broken seat was more an issue of comfort than safety. Tr. 97-98,
101-02. In this regard, the court credits Stache’s testimony that an inability
to adjust the backrest on the driver’s seat could result in accumulated back
pain to the haul truck driver, who spends multiple hours each working day
operating his truck. Tr. 70-71. Further, Stache’s mention of section 105(c) was
protected as an exercise of Stache’s rights under the Act, as undisputed by the
company.

Regarding Webster’s motivation for terminating
Stache, since there is no direct evidence that Stache’s termination was
motivated by his protected activity, the court must rely on circumstantial
evidence of motivation. The Commission has noted that “direct evidence of
motivation is rarely encountered; more typically, the only available evidence
is indirect.” Chacon, 3 FMSHRC at 2510 (Nov. 1981). Circumstantial
evidence may include: (1) coincidence in time between the protected activity
and the adverse action, (2) knowledge of the protected activity, (3) hostility
or animus toward the protected activity and (4) disparate treatment. Id.

Regarding temporal proximity, the Commission has found that a discharge occurring approximately two weeks after protected activity
is sufficiently coincidental in time to support a finding of discriminatory
motive. Secretary of Labor on behalf of Clay Baier v. Durango Gravel, 21
FMSHRC 953, 959 (Sept. 1999). This case presents an even stronger causal
connection since Stache was terminated on the same day, and within a few
minutes of making these protected complaints. Complainant’s Ex. 2; Tr. 88-89.

Regarding knowledge, the Commission has recognized that an operator’s knowledge of protected activity “is probably the single most
important aspect of a circumstantial case.” Chacon, 3 FMSHRC at 2510. Webster
conceded that Stache complained about the broken seat and mentioned section
105(c) during the August 8 conversation.[18]
Webster, who directly terminated Stache, thus had knowledge of both instances
of protected activity.

Regarding animus, the Commission has recognized that the more that animus is
specifically directed toward the protected activity, the more probative it is
of discriminatory intent. Chacon, 3 FMSHRC at 2511. There is evidence
that Webster was hostile towards Stache’s complaint of a broken seat. Webster,
who called this complaint “petty,” clarified at the hearing that he personally viewed
the broken seat as more of a comfort issue than an actual safety issue. Tr.
101-02. However, there is no evidence that Webster was hostile towards Stache’s
mention of section 105(c).

The Commission has stated in Bradley that “evidence of knowledge and timing present in [Bradley]
constitutes substantial evidence that [the complainant’s] discharge was at
least partially motivated by his protected refusal to work.” Bradley, 4
FMSHRC at 993. The Commission has recently stated in Metz v. Carmeuse Lime, 34
FMSHRC 1820, 1826 (Aug. 2012) that “the supervisors’ knowledge of the
complaints and the timing of those complaints constitute evidence that would
allow a factfinder to conclude that [the complainant’s] discharge was at least
partially motivated by his protected safety complaints.” In Bradley and Metz,
the Commission found that the complainant made out a prima facie case
based solely on management’s knowledge of protected activity and coincidence in
time between the protected activity and the adverse action.

In the case at bar, regarding the
broken seat complaint and Stache’s mention of section 105(c), Webster clearly
knew of the protected activity, and terminated Stache mere minutes after he
engaged in the protected activity. The indicia of knowledge and temporal
proximity are sufficient to suggest a discriminatory motive. Bradley, 4
FMSHRC at 993; Metz 34 FMSHRC at 1826. However, even if these indicia
were insufficient, there is also evidence that Webster was hostile towards Stache’s
broken seat complaint. Therefore, the court finds that Stache has established a
prima facie case regarding the broken seat complaint and his mention of
section 105(c).

Second,
the court considers whether, under Bradley and Metz, Stache can establish
a prima facie case based on his alleged complaints during the August 8
conversation regarding the defective exhaust, the defective air conditioning,
or the excessive noise. Bradley, 4 FMSHRC at 993; Metz 34 FMSHRC
at 1826. Webster testified that during this conversation Stache failed to
complain about the defective exhaust or defective air conditioning. Tr. 97. Webster
did not testify about Stache’s alleged complaint about excessive noise.[19]
Id.

The
court finds that these additional complaints relate to safety issues with
Stache’s truck, as undisputed by the company. Therefore, the court finds that
these additional complaints, if they occurred, were protected activity under
the Mine Act. Since these complaints were allegedly made at the same time as
the broken seat complaint, a few minutes prior to Stache’s termination, there
was a close coincidence in time between the alleged protected activity and adverse
action. Tr. 18. The next step would be to determine whether the operator knew
of these safety complaints, i.e. whether or not Stache made additional
complaints to Webster during the conversation. However, since it is ambiguous
as to whether Stache made additional complaints to Webster during the August 8
conversation, and since the court earlier found that Stache proved a prima
facie case based on his complaint regarding the broken seat and his mention
of section 105(c), it is unnecessary to resolve this issue.[20]

COMPLAINTS PRIOR TO CONVERSATION
ON 8/8/12

Third, the court considers whether,
under Bradley and Metz, Stache can establish a prima facie
case based on his safety complaints prior to the conversation on August 8,
2012. Bradley, 4 FMSHRC at 993; Metz 34 FMSHRC at 1826. Stache testified
that he complained that his truck, the 769 C, was being overloaded in June 2011,
September 2011 and July 2012. Complainant’s Ex. 6-7; Tr. 26-28, 48-51. He also
testified that in April 2012, he complained of an oil leak. Complainant’s Ex.
8-9; Tr. 51-56. During July and August 2012, he reported in his DVIRs numerous
safety issues with the 769 C - the defective air conditioning; oil, hydraulic
and exhaust leaks; a crack in the muffler; a broken seat; and that the truck’s body
needed welding. Complainant’s Ex. 3; Tr. 35-39.

The court finds that these
complaints relate to safety issues with Stache’s truck and thus were protected
under the Mine Act, as undisputed by the company. Stache’s undisputed testimony
that Webster was aware of these complaints established the operator’s knowledge
of protected activity. Tr. 60. However,
Stache can only establish that some of these complaints were sufficiently close
in time to his termination to indicate a causal connection. The complaints in
Stache’s DVIR were made between July and August 2012, and the most recent complaint
regarding overloading was made in July 2012. Since these complaints were made within
a month of Stache’s termination on August 8, 2012, there is a close coincidence
in time between the protected activity and the adverse action. However, the
April 2012 complaint regarding an oil leak was made approximately four months
prior to Stache’s termination, and the complaints of overloading made in June
and September 2011 were respectively made 14 and 11 months prior to Stache’s
termination on August 8, 2012. Therefore, these complaints are not temporally
proximate to Stache’s termination. [21]

Under prior Commission decisions,
evidence of the operator’s knowledge of protected activity and coincidence in
time between protected activity and the adverse action is sufficient to
establish a prima facie case. Bradley, 4 FMSHRC at 993; Metz 34
FMSHRC at 1826. As to the DVIR complaints and the July 2012 complaint regarding
overloading, Stache established that the operator knew of these complaints and that
these complaints were made within a month of his termination. Therefore, the
indicia of knowledge and temporal proximity are sufficient to suggest a
discriminatory motive. Id. However, as to the April 2012 complaint of an
oil leak, and the overloading complaints made in 2011, Stache failed to
establish that these complaints were sufficiently close in time to his
termination to indicate a causal connection. Therefore, the court finds that
Stache has established a prima facie case only regarding the DVIR
complaints and the July 2012 complaint concerning overloading.

In conclusion, Stache has
established a prima facie case on the basis of several complaints,
made orally or verbally at different times, concerning different components of
his truck. As discussed above, Stache proved a prima facie case
regarding his complaint of a broken seat and his mention of section 105(c) to
Webster during the August 8 conversation. Stache also proved a prima facie case
regarding his complaints in his DVIRs of July and August 2012 concerning the
defective air conditioning; oil, hydraulic and exhaust leaks; a crack in the
muffler; a broken seat; and the truck’s body needing welding. Finally, Stache
proved a prima facie case regarding his complaint that his truck was
overloaded on July 2012.

REBUTTAL

Alvin Coleman has failed to rebut the prima facie case by either proving there was no protected activity, or
that Stache’s termination was in no way motivated by his protected complaints. See
Robinette, 3 FMSHRC at 818 n.20. In this regard, the court finds that
Webster, who argued that Stache was terminated solely for his unprotected
misconduct, failed to show that Stache’s protected complaints did not have any
impact on the termination. Complainant’s Ex. 2, at 2; Tr. 88-89. Therefore, the
court will now consider whether the company has established an affirmative
defense.

AFFIRMATIVE
DEFENSE

As indicated above, Alvin Coleman
has failed to rebut Stache’s prima facie case. Thus, it is clear that
Stache’s termination was motivated in part by his protected activity. However,
the company can still avoid liability by proving an affirmative defense. In this
regard, the company must show that even though Stache’s termination was
motivated in part by his protected activity, it was also motivated by his
unprotected misconduct. See Robinette, 3 FMSHRC at 818 n.20. The
company must further show that Stache would have been terminated for his
unprotected misconduct alone, i.e. in the absence of the protected
activity. Id.

Webster testified that Stache was
terminated for his unprotected misconduct.[22]
Specifically, Webster testified that Stache was terminated for physically
intimidating Webster by throwing a pen at Webster’s face and by displaying
unstable behavior.[23]
Complainant’s Ex. 2; Tr. 88-89, 101. According to Webster, the pen was a
projectile that could have harmed one of his eyes. Moreover, after Stache threw
the pen, Webster testified that Stache’s face was red and his “eyes were
wandering around.” Tr. 88-89. Webster testified that he feared that Stache, who
seemed unstable, was capable of throwing other objects, such as rocks or
sticks, at him. Id. Webster then immediately terminated Stache. Id.

The Commission has explained that
an affirmative defense that the employee was terminated for his unprotected
misconduct alone should not be “examined superficially or be approved
automatically once offered” and that “pretext may be found . . . where the
asserted justification is weak, implausible, or out of line with the operator's
normal business practices.” Haro, 4 FMSHRC at 1938; Price, 12
FMSHRC at 1534. Taking cues from other federal statutes on discrimination, the
Commission analyzed the issue of pretext in Turner v. National Cement,
33 FMSHRC 1059, 1073, listing three ways in which a complainant can show that
the operator’s affirmative defense is not credible but rather a pretext for
prohibited discrimination. First, a complainant can establish that the
employer’s proffered reason(s) have no basis in fact, that they are
factually false. Id. Second, a complainant can show that the proffered
reason(s) did not actually motivate the termination, i.e. the
complainant admits the factual basis underlying the employer’s proffered reason(s),
and that such conduct could motivate dismissal, but attacks the credibility of
the proffered reason(s) indirectly by showing circumstances which tend to prove
that an illegal motivation was more likely than the legitimate business reason(s)
proffered by the employer. Id. Third, a complainant can show that the
employer’s proffered reason(s) were insufficient to motivate termination, i.e.
other employees were not terminated even though they engaged in conduct
substantially similar to that which formed the basis of complainant’s
termination. Id.

Stache
primarily sought to use the first approach to demonstrate pretext. In this
regard, Stache sought to prove that the company’s proffered reason for his
termination, that he engaged in physical intimidation by throwing a pen at his
supervisor and by displaying ensuing unstable behavior, was factually false. The
court will also consider whether Stache could have used the second approach to demonstrate
pretext, by proving that the company’s affirmative defense did not actually
motivate termination. Turner, 33 FMSHRC at 1073. However, the court
concludes that it is unnecessary to consider whether Stache could have used the
third approach to prove pretext as Stache
did not argue that the company’s affirmative defense was insufficient to
motivate termination. In this regard, Stache did not provide any evidence of disparate
treatment, i.e. that other employees were not terminated despite engaging
in the misconduct at issue.

TURNER FIRST
APPROACH

Under the first approach in Turner, 33
FMSHRC at 1073, Stache sought to prove that Alvin Coleman’s affirmative
defense was factually false. Stache claimed that since he threw the pen after
his termination, it could not have been a basis for his termination, and he was
actually terminated solely for making protected complaints during and before
the August 8 conversation. Tr. 32. Webster responded by alleging that Stache,
who he claimed threw the pen before his termination, was terminated for
throwing the pen and for his ensuing unstable behavior, not for his protected
activity. Complainant’s Ex. 1-2; Tr. 88-89. As indicated below, the court finds
that Stache’s testimony that he threw the pen after his termination is not
credible.

First, the notice of termination,
presumably written on August 8, 2012, corroborates the company’s position that
Stache was terminated for throwing the pen and for his ensuing unstable
behavior. In the termination notice, Webster wrote “[Stache] threw his pen at
me and refused to sign violation paper. David has a temper and I’m all done
with that. I fired him at 3:15 p.m. 8-8-12.”[24]
Complainant’s Ex. 2, at 2. While neither party addressed when the notice of
termination was written, it is reasonable to infer that it was written
immediately following the termination. Therefore, the contemporary notice of
termination deserves more weight than Stache’s testimony at a hearing nine
months later.

Second, Stache’s failed attempt to
minimize the misconduct that led to his suspension harms his credibility. During
direct examination, Stache implied that since he was neither trained nor
instructed to check emergency steering, his suspension on August 8 was
wrongful. He claimed that the DVIR, which lists steering but not emergency
steering, fails to instruct drivers to check emergency steering. Tr. 15-16,
104-05. However, on cross-examination, Stache conceded that on August 8, he
knew the proper procedure for inspecting emergency steering but failed to
inspect it due to time constraints, testifying that “the proper procedure to
check the emergency steering is to shut down the vehicle. And due to
production, I didn’t have time to shut the truck off to do that procedure. That
was the next step.” Tr. 68. Stache’s knowledge of the proper procedure for
inspecting emergency steering suggests that he was properly trained to inspect
his truck. Stache also conceded that he should have inspected emergency
steering on August 8, testifying “Yeah. I should have checked it.” Tr. 69.
Stache’s own testimony thus indicates that he was trained, and knew that he was
required to inspect emergency steering, contradicting his earlier claim that he
was neither trained nor instructed to check emergency steering.

Stache’s failed attempt to minimize
the misconduct for which he was suspended undermines the credibility of his
attempt to again minimize his misconduct, this time the misconduct for which he
was terminated. In the former situation, Stache argued that he was not trained
or unaware that he had to inspect emergency steering. In the latter situation,
Stache argued that he threw the pen after his termination. The court finds that
these two attempts by Stache to minimize his misconduct are strikingly similar.
In both situations the alleged misconduct resulted in a disciplinary action, and
Stache sought to minimize his misconduct at the hearing. In addition, in both
situations the company disputed Stache’s attempts to minimize his misconduct,
arguing respectively that Stache was trained and aware of his duty to inspect
emergency steering, and that the pen was thrown before his termination. Given
the similarity between these two situations, it is reasonable to infer that if
Stache’s excuse regarding his failure to inspect emergency steering is not
credible, his claim that he threw the pen at Webster after his termination is
similarly not credible.

For the reasons above, the court
finds that Stache’s testimony that he threw the pen after his termination is
not credible. Instead, the court credits Webster’s testimony that Stache threw
the pen prior to his termination since Webster was a forthright, credible
witness whose testimony is corroborated by the contemporary notice of
termination. Accordingly, the court finds that Stache failed to prove that the
company’s affirmative defense was factually false.

TURNER SECOND
APPROACH

Under the second approach in Turner, Alvin Coleman’s affirmative defense can be found to be pre-textual if
the evidence shows that the alleged misconduct was not substantial enough to
credibly motivate termination. See Turner, 33 FMSHRC at 1073-77. In Turner,
the Commission implicitly used the Bradley factors to determine the
substantiality of an affirmative defense. Id. In Bradley, the
Commission recognized that in order to determine whether an operator would have
“disciplined the miner anyway for the unprotected activity alone,” a judge must
consider “past discipline consistent with that meted out to the alleged
discriminatee, the miner’s unsatisfactory past work record, prior warnings to
the miner, or personnel rules or practices forbidding the conduct in question.”
4 FMSHRC at 993. As shown below, the court finds that Stache’s misconduct, his
physical intimidation of a supervisor, was substantial enough to motivate Stache’s
termination and thus was not pre-textual.

First, the court assesses whether
the record establishes that the company previously terminated other employees
for intimidating a supervisor, and the court finds that it does not. The
company provided five examples of employees who were suspended in the past. Resp’t
Ex. 1. However, none of these employees physically intimidated a supervisor, or
were terminated for their misconduct. Id. Therefore, the court finds
that none of them were similarly situated as Stache or received the same
discipline as Stache.[25]
Id.

Second, the court assesses Stache’s
past work record. At the time of his termination, Stache had worked
approximately four years for the company. Discrim. Compl. To MSHA (Sept. 6,
2012). Webster, Stache’s supervisor since April 2009, testified that Stache was
a good, hardworking employee who, prior to his suspension on August 8, 2012, had
only been disciplined once, several years prior to his August 8 suspension, for
guarding issues at a crusher. Tr. 98. Therefore, the court concludes that Stache
had a satisfactory past work record with the company.

Third, the court assesses whether
Stache received any prior warnings from the company for insubordination, the
misconduct for which he was terminated. There is no evidence that Stache was
ever previously warned about insubordination. Tr. 98.

Fourth, the court assesses whether
any personnel rules or policies prohibited the misconduct at issue. In this
regard, although the company failed to submit a copy of its official policy on
employee misconduct, the disciplinary forms used by the company list unsafe
behavior and insubordination as grounds for discipline. Resp’t Ex. 1. It is
reasonable to infer that physical intimidation of a supervisor would be prohibited
generally as unsafe behavior, and specifically as insubordination.

Fifth, the court assesses the
nature of the employee’s misconduct.[26]
Stache’s misconduct, throwing a pen at his supervisor’s face, can be
characterized either as a form of extreme insubordination or extreme
intimidation. As compared to lesser forms of insubordination such as a failure
to follow instructions, or lesser forms of intimidation such as making an
obscene gesture, Stache engaged in extreme misconduct by not merely ignoring
instructions or making gestures but by angrily throwing a projectile at his
supervisor. Webster’s post-hearing letter to the court (July 15, 2013);
Complainant’s Ex. 2, at 2. The court credits and finds reasonable Webster’s fear
that the pen could have potentially blinded him, and that Stache, after throwing
the pen, might start throwing other objects such as rocks or sticks. Tr. 88-89.
As stated previously, the court found that Webster was a forthright witness and
the court notes that Stache failed to dispute the potential harm to Webster, or
Webster’s contention that Stache seemed unstable.

Weighing all of the factors, the
court finds that Stache’s misconduct was substantial enough, by itself, to
credibly motivate his termination. In this regard, while the court recognizes
that Stache’s work record was satisfactory and that the company failed to
provide evidence of prior similar terminations of other employees or prior
warnings to Stache for insubordination, the court cannot overlook the extreme
nature of Stache’s misconduct, which could have resulted in lasting harm to his
supervisor. Therefore, the court finds that Stache would have failed to show
that the company’s affirmative defense was pre-textual under the second
approach in Turner.

PROVOCATION

Finally, the court
will consider whether Alvin Coleman’s affirmative defense should fail because the
misconduct for which Stache was terminated was provoked by the company’s
misconduct. The Commission has recognized that
wrongful provocation by an employer may be grounds for excusing an employee’s
misconduct:

Even if the judge determines that [the
employer] has established the elements of its affirmative defense, the question
remains whether that defense must nevertheless fail because [the employee’s]
conduct was provoked . . . [I]n many cases decided under the National Labor
Relations Act, 29 U.S.C. § 141 et seq. (1994) (“NLRA”), courts
have recognized that an employer cannot provoke an employee into an indiscretion and
then rely on that indiscretion as grounds for discipline . . . . The question
thus remains for the judge to determine on remand whether [the employee’s
misconduct] was provoked by [the employer’s] response to his protected [activity].
The judge must also determine whether the particular facts and circumstances of
this case, when viewed in their totality, place [the employee’s] conduct within
the scope of the “leeway” the courts grant employees whose “behavior takes
place in response to [an] employer’s wrongful provocation. If [the employee’s]
conduct was provoked and excusable, [the employer’s] affirmative defense must
fail.”

Sec’y of Labor on behalf of Bernardyn v. Reading
Anthracite (“Bernardyn I”), 22 FMSHRC 298, 305-08 (Mar. 2000) citing
in part Trustees of Boston Univ. v. NLRB, 548 F.2d 391, 393 (1st Cir.
1977); see also Sec’y of Labor on behalf of Bernardyn v. Reading Anthracite
(“Bernardyn II”), 23 FMSHRC 924, 935-39 (Sept. 2001); see also NLRB v. M
& B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965). [27]

The Commission in Bernardyn I recognized
that to assess a claim of provocation, the court must resolve two issues. First,
the court must resolve whether the employer wrongfully provoked the employee. In
Bernardyn I, 22 FMSHRC at 306, the Commission implied that the alleged
provocation must consist of wrongful and unjustified employer conduct,
recognizing that “other courts . . . have found layoffs, based ostensibly on
vulgar employee outbursts to be improper where the employee’s conduct was
provoked by unjustified employer action.”[28]
Second, assuming wrongful provocation, the court must resolve whether the
employee’s misconduct after being provoked was excusable, i.e. whether, under
the circumstances of the case, the employee’s misconduct in response to the
employer’s provocation fell within the leeway courts grant such employees.
Bernardyn I, 22 FMSHRC at 307-308.

Regarding whether Webster wrongfully provoked
Stache’s misconduct, Stache argued that Webster engaged in wrongful conduct on four
occasions during the conversation on August 8, which could have contributed to
Stache’s emotional outburst minutes later. The evidence suggests that Webster’s
conduct on the first three occasions was not wrongful, but that his conduct on
the fourth occasion was wrongful, and provoked Stache into throwing the pen.

First, Stache argued that his two day suspension
for failing to inspect or report defective emergency steering was unjustified. Tr.
15-16, 104-05. However, as discussed earlier, the company, which required
employees to inspect and report defective equipment in their DVIRs daily, clearly
prohibited the misconduct for which Stache was suspended. Tr. 68-69, 80-81. Moreover,
the company had repeatedly warned employees at safety meetings in March and
April 2012, which Stache attended, that if their unsafe behavior resulted in a
citation, they would be suspended. Resp’t Ex. 2-3. Therefore, the court finds that
Webster justifiably suspended Stache, and that the suspension was not wrongful
provocation.

Second, Stache argued that Webster wrongly scolded
him for allegedly costing the company $5,000. Tr. 18-23. This caused Stache,
who mistakenly believed that he might have to pay a personal fine of $5,000, to
become very nervous about other safety issues on his truck which he feared also
might result in other personal fines. Tr. 18. At the hearing, Webster conceded
that the proposed penalty for the citation was later assessed as $100. Tr. 103.
However, Webster’s explanation that he estimated the penalty would be $5,000
because of the company’s history of prior violations was undisputed. Tr. 103. Since
Stache failed to show that Webster’s penalty estimate was unreasonable, and
since Stache’s own mistaken belief that he would be personally fined $5,000
contributed to his emotional state, the court finds that Webster’s conduct was
not wrongful, and did not provoke Stache into physically intimidating Webster.

Third, Stache argued that Webster wrongly asked
him to sign the notice of suspension without explaining why his signature was
required. Tr. 17-18. However, the notice of suspension clearly states that an
employee must acknowledge receipt of the disciplinary form by signing it, and
clarifies that the employee’s signature is not an admission of employee
misconduct. Complainant’s Ex. 2, at 1. Given the clear language of the form,
Webster need not have orally explained to Stache why the signature was required;
by simply glancing at the form, Stache would have understood his signature’s
purpose. Therefore, the court finds that Webster did not engage in wrongful
conduct by asking Stache to sign the notice of suspension

Fourth, Stache argued that
Webster’s characterization of his complaint regarding the broken seat as
“petty” was degrading and unjustified. Tr. 18, 30-31. During their conversation
on August 8, Stache complained that the adjustment tool for the backrest of the
driver’s seat was broken. Tr. 18, 70-71, 97. He believed that the inability to
adjust the backrest was hurting his back. Tr. 70-71. In response, Webster, who
viewed the broken adjustment tool as more of a comfort issue than as a safety
issue, told Stache that he was not going to fix “petty ante stuff.” Tr. 18, 30-31,
101-02. Stache’s complaint about the broken seat was a protected complaint
under the Mine Act, and at the hearing, Webster conceded that on August 14,
2012, an MSHA inspector confirmed that the adjustment tool for the backrest of
the driver’s seat was indeed broken. Tr. 101. The protected complaint regarding
the broken seat should not have been characterized as “petty,” a comment that angered
Stache, leading to the conversation becoming heated and eventually resulting in
Stache angrily throwing a pen at Webster. Tr. 30-31. The court finds that
Webster’s “petty” comment was wrongful conduct that directly provoked Stache
into committing the misconduct for which he was terminated. However, this does
not end the inquiry.

Regarding whether Stache’s physical
intimidation of Webster was excusable, the court, similar to the Commission,
relies on decisions by the U.S. Courts of Appeals regarding when, under the
National Labor Relations Act, an employee’s misconduct is excusable due to the
employer’s provocative conduct. Bernardyn I, 22 FMSHRC at 306-308.
In this regard, the Commission has relied on the First Circuit decision in Trustees
of Boston Univ. v. NLRB, 548 F.2d at 393, which distinguished between minor
employee misconduct, i.e. cursing, which may be excusable, and major employee
misconduct, i.e. physical intimidation, which is rarely excusable. Id., see Trustees, 548 F.2d at 393,
393 n.4 citing Florida Steel Corp. v. NLRB, 529 F.2d 1225 (5th
Cir. 1976) (“[c]ourts have been unwilling to overlook blatant misconduct such
as physical intimidation.”)

The Eighth Circuit succinctly stated:

An employer may not provoke an
employee and then rely on the employee’s intemperate response as a ground for
not reinstating him . . . . Yet, an employee is not free to engage in wanton
conduct following an unlawful discharge and then hide behind the Act’s
protections . . . . As always in cases such as this, the question is where to
draw the line as to the type of conduct that forfeits an employee’s right to
reinstatement . . . . Courts may allow certain indiscretions by employees who
are wrongfully terminated, but they cannot overlook blatant misconduct such as
threats of violence and physical intimidation. [29]

Precision Window Manufacturing
v NLRB, 963 F.2d 1105, 1108 (8th Cir. 1992) citing Trustees, 548
F.2d at 393 n.4.

When Stache angrily threw a pen at
Webster’s face, he engaged in blatant misconduct that could have partially
blinded his supervisor. This is the type of conduct that lies outside the
leeway courts grant employees whose misconduct was provoked by the employer. In
addition, the court notes that Stache’s misconduct was disproportional to
Webster’s provocation. While the court agrees with Stache that Webster’s
“petty” comment was wrongful, the court cannot condone employee conduct that
could have resulted in lasting harm to his supervisor.

For the reasons stated above, the
court finds that while Stache’s physical intimidation of Webster was provoked,
his blatant misconduct was not excusable, and that Alvin Coleman’s affirmative
defense survives Stache’s allegation of provocation.

CONCLUSION

In conclusion, the court finds that Stache established a prima facie case of discrimination under section
105(c)(3) of the Mine Act. The court also finds that Alvin Coleman
affirmatively defended its termination of Stache. Therefore, based on a
thorough review of the record, the court concludes that Stache failed to prove,
by a preponderance of the evidence, that Alvin Coleman discriminatorily
terminated him in violation of section 105(c) of the Act.

ORDER

Having concluded that David Stache has not established
that he was unlawfully discriminated against, the court DISMISSES his
complaint and this proceeding.

/s/
David F. Barbour   

David F. Barbour

Administrative
Law Judge

Distribution (certified mail):

David A. Stache, P.O. Box 394,
West Ossipee, New Hampshire 03890-0394

Russell “Butch” Webster, Alvin
J. Coleman & Son, Inc., 9H Route 113, Conway, New Hampshire, 03818

/DM

[1] Section 105(c)(2) of the Mine Act, 30 U.S.C. §
815(c)(2), states in relevant part:

Any miner . . . who believes that
he has been discharged, interfered with, or otherwise discriminated against by
any person in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging such discrimination.
Upon receipt of such complaint, the Secretary shall forward a copy of
the complaint to the respondent and shall cause such investigation to be made
as he deems appropriate.

[2] Section 105(c)(3) of the Mine Act, 30 U.S.C. §
815(c)(3), states in relevant part:

Within 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. If the Secretary, upon investigation,
determines that the provisions of this subsection have not been
violated, the complainant shall have the right, within 30 days notice of the
Secretary’s determination, to file an action in his own behalf before the
Commission, charging discrimination or interference in violation of [section 105(c)(1)].
The Commission shall afford an opportunity for a hearing . . . and thereafter
shall issue an order, based upon findings of fact, dismissing or sustaining the
complainant’s charges and, if the charges are sustained, granting such relief
as it deems appropriate, including, but not limited to, an order requiring the
rehiring or reinstatement of the miner of his former position with back pay and
interest or such remedy as may be appropriate. Such order shall become final 30
days after its issuance. Whenever an order is issued sustaining the
complainant’s charges under this subsection, a sum equal to the aggregate
amount of all costs and expenses (including attorney’s fees) as determined by
the Commission to have been reasonably incurred by the miner . . . for, or in
connection with, the institution and prosecution of such proceedings shall be
assessed against the person committing such violation.

[3] In his complaint to MSHA, Stache conceded that he
would have been seasonally laid off on December 14, 2012. Discrim. Compl. to
MSHA (Sept. 6, 2012).

[4] The parties did not submit post-hearing briefs, and
did not agree to any stipulations.

[5] Complainant’s Exhibit 2 is comprised of a single
page. The front, hereinafter referred to as page 1, contains Stache’s notice of
suspension. The back, hereinafter referred to as page 2, contains Stache’s notice
of termination.

[6] Due to the paucity of evidence regarding the nature
of the mine, the court consulted the company’s website for relevant information.

[7]
It is unclear whether Stache’s complaints regarding the overloading of his truck
and the April oil leak were communicated orally to Webster or were simply
reported on his DVIR. Regardless, Webster did not dispute that Stache made
these complaints and that he, Webster, was aware of them.

[8] Complainant’s Exhibit 3 is comprised of loose-leaf
carbon copies of nine DVIRs submitted by Stache to Webster between July and
August 2012. Eight of these DVIRs pertained to the 769 C truck operated by
Stache, while one pertained to an AT-18 truck. As will be discussed, on August
8, 2012, Stache temporarily operated an AT-18 truck.

[9]
Stache failed to clarify at the hearing whether
he directly handed his daily DVIR to Webster, placed it in Webster’s office, or
gave it to another individual who delivered it to Webster. Tr. 39-40.

[10] The evidence suggests that actual discipline often
varied from the progressive discipline policy. In this regard, after April
2011, at least three employees were suspended for three days, similar to
Stache’s two day suspension on August 8, 2012, but inconsistent with the
progressive discipline policy where a one day suspension is followed by a one
week suspension. Resp’t Ex. 1.

[11]
At the hearing, Stache claimed that at the beginning of the conversation,
Webster handed him a pen and a copy of the notice of suspension, and asked him
to sign it without explaining why his signature was required. Tr. 17-18. As
indicated below, Webster claimed that he asked for Stache’s signature towards
the end of the conversation.

[12]
Webster conceded that Stache mentioned the broken seat during their August 8
conversation. Tr. 97.

[13]
Webster did not address Stache’s claim that Stache
made a complaint about excessive noise during this conversation. Tr. 97.

[14] The court finds that Webster characterized Stache’s
broken seat complaint as “petty,” as testified by Stache, since Webster, who
was unable to recall how he responded to Stache’s safety concern(s), conceded
that he viewed the broken adjustment tool on the backrest as more of a comfort
issue than as a safety issue, and did not dispute using the word “petty.” Tr.
97-98, 101-02.

[15]
While neither party provided a clear chronology of events, the court finds that
Stache mentioned section 105(c) after, not before, Webster’s “petty” comment,
since it is reasonable to infer that the “petty” comment triggered Stache’s
reference to the statutory provision.

[16] Regarding the sequence and timing of events leading
up to Stache’s mention of section 105(c), the court is relying largely on
Stache’s testimony since Webster did not mention the chronological order for
the events on August 8.

[17] Webster failed to address whether Stache complained about
excessive noise during the conversation on August 8. Tr. 97.

[18]
Webster argued that he was not aware of the
precise meaning of section 105(c) on August 8, 2012. Tr. 97. However, Stache
mentioned section 105(c) during a conversation regarding safety issues and
immediately after Webster characterized Stache’s safety complaints as “petty.”
Tr. 18-19, 30-31. In this regard, even assuming that Webster was unaware of the
precise meaning of the statutory provision, the court finds that Webster was
aware that Stache was referring to a legal provision concerning mine safety.
Therefore, the court concludes that Webster knew that Stache’s invocation of
section 105(c) constituted protected activity under the Mine Act

[19] Stache failed to explain the cause for the excessive
noise in his truck, though the court notes that in the preceding days, Stache
had complained in his DVIR that the muffler of his truck was malfunctioning.
Complainant’s Ex. 3.

[20]
Upon reviewing the evidence, the court has determined that it is ambiguous as
to whether Stache complained about the exhaust, the defective AC or the
excessive noise during the conversation on August 8, 2012. Since Stache had
reported the exhaust and the defective AC on his DVIR in the morning of August
8, it is possible that he again raised those safety concerns after being suspended
by Webster. Complainant’s Ex. 3. However, Webster admitted that Stache made a
safety complaint regarding the broken seat and mentioned section 105(c) during
the August 8 conversation. Tr. 97. Webster thus established that he knew Stache
had engaged in protected activity minutes before his termination. Therefore,
Webster would seemingly have no incentive to falsely assert that Stache did not
make any other safety complaints during the same conversation.

[21]
The court briefly notes that there is no evidence that Webster was hostile
towards any of Stache’s complaints made prior to the August 8 conversation.
While Webster had delayed installing a new air conditioning system in Stache’s
truck, other issues such as the oil leak were addressed, though perhaps not as
promptly as Stache preferred. Tr. 67-68, 100-01. Stache also conceded that
Webster discussed the broken seat with him, presumably prior to August 8, and
explained to him that the cracked exhaust was not leaking since it was
double-lined, though Stache rejected this explanation. Tr. 69-70.

[22]
As stated earlier, Webster argued that Stache
was terminated solely for his unprotected misconduct, rather than arguing
Stache was terminated for both protected and unprotected activity. Complainant’s
Ex. 2, at 2; Tr. 88-89.

[23]
The un-contradicted evidence indicates that the
pen was thrown at Webster’s face. Webster testified that the pen flew across
his face and narrowly missed hitting him. Tr. 82-83. Stache testified that he
threw the pen at the windshield of Webster’s truck. Tr. 31-32. Since it is
undisputed that Webster was standing in front of his truck at the time, it is
clear that the pen was thrown in Webster’s direction, at the same height as the
truck’s windshield. Tr. 32, 82-83. Therefore, based on both parties’ testimony,
the court finds it reasonable to conclude that the pen was thrown at Webster’s
face.

[24]
While Webster noted that he terminated Stache at
3:15 p.m., Stache testified that Webster approached his truck at approximately
3:15 p.m., implying that Stache was terminated a few minutes after 3:15 p.m.
Given that the precise time of termination is not determinative, the court, as
explained earlier, will rely on Stache’s testimony regarding the times for
specific events.

[25] Respondent’s Exhibit 1 is comprised of five notices
of suspension, issued for offenses of absenteeism, unsafe driving, unsafe use
of equipment, failure to follow instructions, and unsafe use of equipment
respectively.

[26]
This factor is not explicitly enumerated in Bradley,
4 FMSHRC at 993. However, since the Bradley factors are not
exhaustive, the court can consider other factors that will allow the court to
determine the substantiality of the affirmative defense. Id.

[27] In Bernardyn I, the Commission vacated and
remanded the Administrative Law Judge’s decision. The Judge then issued a
decision on remand. After granting the Secretary’s petition for discretionary
review of the judge’s remand decision, in Bernardyn II, the Commission
vacated and remanded the judge’s remand decision. Bernardyn II, 23
FMSHRC at 924.

[28] See also Bernardyn II, 23 FMSHRC at 938 where
the Commission stated that “if the judge finds it necessary to reach the
provocation issue on remand, he must revisit his determination that [the
employer’s] instruction to [the complainant] to speed up was not wrongful.”

[29] In Precision, the employee’s provoked
misconduct occurred after his termination. However, the analysis in Precision
regarding when an employer’s wrongful provocation excuses an employee’s
subsequent misconduct is applicable to cases where the employee’s misconduct
occurs prior to his termination. Precision, 963 F.2d at 1108.