Secretary of Labor obo Jimmy Lee Hoover v. Mosenecamanufacturer, LLC dba American Tripoli

Plain-English summary

Jimmy Lee Hoover testified that he declined to open an electrical breaker box and reach inside after the external reset failed because he believed the task was unsafe. American Tripoli terminated him the following day and argued that the discharge resulted from prior performance, attendance, attitude, and safety issues. At the temporary-reinstatement stage, the judge did not resolve those factual conflicts but asked only whether the discrimination complaint was nonfrivolous. He found sufficient evidence of protected activity, termination, management knowledge, possible hostility, and very close timing to meet that limited standard. American Tripoli was ordered to reinstate Hoover immediately to his former or an equivalent position at the same pay and benefits.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Jimmy Lee Hoover's immediate temporary reinstatement was ordered.
• Key point: Refusing a task reasonably believed unsafe, followed by termination the next day, supported a nonfrivolous discrimination complaint.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

721 19th ST.
SUITE 443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266 / FAX: 303-844-5268

December 13, 2023

|
SECRETARY OF LABOR, on behalf of JIMMY LEE HOOVER, Complainant,
v.
MOSENECAMANUFACTURER LIMITED LIABILITY COMPANY d/b/a AMERICAN TRIPOLI, Respondent. |
|
|
TEMPORARY REINSTATEMENT
Docket No. CENT 2024-0024 MSHA No. MADI-CD-2023-05
Mine ID: 23-00504 Mine: MOSenecaMfr LLC dba American Tr |

ORDER GRANTING
TEMPORARY REINSTATEMENT OF JIMMY LEE HOOVER

Before: Judge Simonton

I. INTRODUCTION

This case is before me on application
for temporary reinstatement filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration (“MSHA”), against MoSeneca Manufacturer
LLC doing business as American Tripoli, pursuant to section 105(c) (2) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2) (“Act” or
“Mine Act”). On November 21, 2023, pursuant to 29 C.F.R. § 2700.45(c),
Respondent requested a hearing on these matters. A virtual hearing was
conducted on December 6, 2023, via the Zoom platform after the parties agreed
to extend the required time period due to the Court’s hearing travel schedule.[1]

II. ANALYSIS AND FINDINGS

Background

The parties stipulated to the following facts:

MoSeneca Manufacturer LLC doing business as American Tripoli (“Respondent”) is organized under the laws of the state of Missouri. The Respondent is an “operator” as defined in Section 3(d) of the Mine Act. The Respondent's operations affect interstate commerce. At all relevant times, the Complainant was employed by the Respondent. As such, the Respondent is subject to the jurisdiction of the Mine Act, and the presiding Administrative Law Judge has the authority to hear and issue a decision regarding this case.

Summary of Testimony

Each party offered two witnesses. A summary of each witness’s testimony follows.

Jimmy Lee Hoover

At hearing, Jimmy Lee Hoover (“Complainant”) testified that at the time he was terminated, he was employed by the Respondent as a mill operator/mill associate. Tr. 25. His job duties involved mill operations, including routine maintenance and loading trucks, and he worked forty hours per week. Tr. 25-26. His rate of pay was twenty dollars an hour. Tr. 27.

On September 13, 2023, the Complainant
was beginning the process to start the mill when he discovered that machinery
at the mill was not operating as it should. Tr. 27-29. He checked the breaker
box located on the wall and found that the circuit breaker had tripped. Tr. 29.
Attempts to reset the breaker box by pressing the external reset button were
unsuccessful. Id.

This breaker box was known to previously
cause this issue. Tr. 30. On those instances, the Complainant would request
assistance from a maintenance worker to open the box to fix the issue because
he was unqualified to do so. Id. On September 13, however, no maintenance
workers were present at the site. Tr. 31. Instead, the Complainant notified his
supervisor, Don Hale, that the breaker box needed to be reset manually. Tr. 32.
The Complainant and Hale then discussed the issue with Operations Manager John
Spears, who supervised both Hale and the Complainant. Tr. 32-33. According to
the Complainant’s testimony, Spears allegedly responded to this information by
saying “We got to run, we got to make Russ money.” Tr. 33. While there were no
explicit instructions given to the Complainant to open the breaker box and
insert his hand, the Complainant interpreted Spears’ alleged statements as
implied instructions to do those activities because that was the only way to
get the mill running. Tr. 57, 81, 104. The Complainant testified that he stated
that he did not want to open the breaker box or put his hand inside because he felt
it was an unsafe act. Tr. 81, 91.

After discussing the issue with Spears, the Complainant took a longer lunch break than usual, for approximately forty-five minutes. Tr. 33-34. During his lunch, the Complainant contacted a former maintenance worker for guidance on how to fix the breaker box. Tr. 34-35. When he returned from lunch, Spears asked the Complainant to show him the breaker box. Tr. 35. The Complainant took Spears to the breaker box, where Spears opened it and inserted his finger into the box. Tr. 36. The Complainant did not remove the cover or put his hand in the box. Tr. 37, 55-56. The Complainant did not believe Spears would be the person to fix the breaker box. Tr. 103. His understanding of Spear’s job at the mill was to direct maintenance, not that Spears would be the employee to act as a maintenance person in the absence of a dedicated maintenance worker. Tr. 95, 103.

The Complainant worked as normal
for the rest of the day. Tr. 37. He was never notified that there might be any
disciplinary issues regarding his conduct that day prior to his termination. Id.
The next day, September 14, 2023, the Complainant received a termination letter
which was given to him by Spears. Tr. 38. At the time of his termination, the Complainant
did not know exactly why he was being fired. Tr. 39, 77-78. Aside from the rationale
provided in the letter, there was no further discussion surrounding the reasons
for his termination and no one explained specifically why he was being terminated.
Tr. 40, 78. The Complainant testified that it was his belief that his refusal
to perform the maintenance tasks associated with resetting the breaker box led
to his termination. Tr. 40-41.

Michael Dillingham

The special investigator who
conducted the investigation into the Complainant’s 105(c) discrimination complaint
testified to his findings and conclusions. Through his investigation, Dillingham
determined that it was “the norm for maintenance or anyone that worked in the mill”
to go inside the box and hold the reset button internally when the external
reset would not work. Tr. 124-26. As such, it was expected of the Complainant
to stick his hand inside the breaker box because it was his job to get the mill
running. Tr. 155. Accordingly, he concluded that the Complainant’s refusal to put
his hand into the breaker box constituted a withdrawal from an unsafe act. Id.

Dillingham further testified that Spears allegedly responded to the Complainant’s withdrawal by saying, “Is this how you’re going to play it, really?” Tr. 121, 152. As part of the investigation, Dillingham contacted Respondent to conduct an interview regarding the events leading to the Complainant’s termination, to which the Respondent submitted a position statement in lieu of an interview. Tr. 129.

Based on the results of his
investigation, Dillingham found that there was a nexus between the protected
activity, the Complainant’s withdrawal, and the adverse action, the
termination. Tr. 130-31, 149. He concluded that the discrimination complaint
was therefore legitimate, and that discrimination had occurred. Id.

Russell Tidaback

Russell Tidaback, the mill’s owner, gave extensive testimony as to Complainant’s employment history, which documented multiple instances of poor attitude, issues with other employees, absenteeism, and safety concerns. Tr. 185-96; REX G. Throughout the Complainant’s employment, Tidaback spent significant time mentoring and counseling the Complainant to improve performance. Tr. 166-168; REX G. He also testified to the mill’s termination policy, citing the employee handbook, which states that termination is a three-step process involving: (1) a verbal warning; (2) a written warning letter; and (3) a termination letter. Tr. 174; REX E. While Tidaback stated that these steps are not obligatory and serve more as a guide, this termination process was followed during the Complainant’s termination and the Complainant had been warned numerous times regarding his performance, both verbal and written. Tr. 215-16.

Despite these numerous disciplinary incidents, however, the Complainant was not fired until September 14, 2023, the day after the incident involving the faulty breaker box. Tr. 216-17. Tidaback testified that he was unaware of the breaker box issue when he ultimately made the decision to terminate the Complainant and the decision was motivated by the Complainant’s tardy return from lunch and poor attitude the previous day. Tr 171-72, 217. While Tidaback is the final decision maker, other members of management, including supervisors, provide input and play a role in the decision to terminate an employee. Tr. 207-210.

In the termination letter provided
to the Complainant, which was written by Tidaback, there was no explicit reference
to a specific event triggering termination. Tr. 177; GEX 2. There was also no explicit statement contained
within the letter that cited specific safety concerns or specific instances of absenteeism
as reasons for termination. Tr 182; GEX

2. Tidaback explained its implied because this was a termination letter,
   not an improvement counseling letter. Id. He acknowledged that the exact
   reasons for termination would not be entirely clear to an outside reader based
   on the termination letter alone and additional information regarding the
   Complainant’s employment history is necessary to fully understand the termination
   decision. Tr. 181-83.

Don Hale

During the time period at issue,
Don Hale was employed as the assistant manager/mill lead and was Complainant’s immediate
supervisor. Tr. 226. On September 13, 2023, Hale was aware that the breaker box
was not functioning properly, which had been a recurring problem at the mill.
Tr. 220-21. The Complainant informed him that did not want to put his finger on
the box’s switch for fear of being shocked. Id. Hale and the Complainant
then went to speak with John Spears about the faulty switch, after which the
switch was eventually fixed. Id. Hale testified that Spears also knew
that the Complainant did not wish to stick his hand in the breaker box. Tr.
230.

Concerning general practices at the mill, Hale stated that he would inform Spears about problems at the mill and that Spears would then instruct him what to do, including recruiting other employees to assist him. Tr. 224. He also stated that Spears’s job duties included maintenance work, especially when there was not a designated maintenance person. Tr. 225. However, there was not always an expectation that Spears would be the person to perform maintenance work in the absence of a maintenance person. Tr. 229.

As part of his job duties, Hale was
responsible for tracking employees’ comings and goings, including lunch breaks.
Tr. 227, 235. He stated that the mill does not have a clock-in clock-out system
or other formal tracking system to monitor employees, and that he would make
note of when employees left for lunch. Id. On September 13, 2023, the
Complainant took a lunch break that exceeded the typical half-hour that is
permitted. Tr. 219, 228, 235-36. Hale told Complainant he was gone for an hour.
Tr. 219, 221, 235-36. Hale testified Complainant’s response was, “I don’t care,
write me up.” Id. After the conclusion of the workday, Hale contacted
the mill’s owner regarding the Complainant’s conduct that day, including the
Complainant’s late return from lunch and his attitude, and that the Complainant
allegedly told Hale to write him up. Tr. 221; REX H. Hale had encountered
problems with the Complainant on the job before, including getting “lippy” and
occasionally arriving late to work. Tr. 222-23. However, he generally
did not have a problem with the Complainant despite these issues. Tr. 223.

Standards Governing Temporary
Reinstatement

Section 105(c)(1) of the Mine Act provides that no person shall discharge or otherwise discriminate against a miner for exercising rights under the Act.

It states in pertinent part:

No person shall discharge or in any manner discriminate 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 this Act, including a complaint notifying the operator or the operator's agent … of an alleged danger or safety or health violation in a coal or other mine.

30 U.S.C. § 815(c)(1)(Emphasis provided by the Commission
in Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1478 (Aug. 1982)).

Pursuant to 105(c)(1), if the Secretary finds that [a
discrimination] complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall order the
reinstatement of the miner pending final order on the complaint. 30 U.S.C. §
815(c)(1). The Commission has noted that the parameters of a temporary
reinstatement hearing are narrow, being limited to a determination with respect
to whether a miner's discrimination complaint has been frivolously brought.
See Sec'y of Labor o/b/o Price v. Jim Walter Res., Inc., 9 FMSHRC 1305,
1306 (Aug. 1987), aff'd., 920 F. 2d 738 (11th Cir. 1990). Accordingly,
it is only necessary to determine whether the Applicants' complaints appear
to have merit. (Emphasis added). See S. Rep. No. 181, at 36 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, 94th Cong., 2d
Sess., at 624 (1978). In Jim Walter Resources, Inc. v. FMSHRC, the
Eleventh Circuit found the “not frivolously brought” standard comparable to a
“reasonable cause to believe” standard. Jim Walter Res., Inc. v. FMSHRC,
920 F.2d 738 (11th Cir. 1990). The Eleventh Circuit concluded that the low
burden imposed by the “not frivolously brought” standard reflects clear
Congressional intent to make temporary reinstatement relatively easy to obtain.
Id. at 748.

The Commission has consistently and historically found that
Congress intended section 105(c) to be broadly construed to afford maximum
protection for miners exercising their rights under the Act. See Sec'y of
Labor o/b/o Charles H. Dixon et. al. v. Pontiki Coal Corp., 19 FMSHRC 1009,
1017 (June 1997) citing Swift v. Consolidation Coal Co., 16 FMSHRC 201,
212 (Feb. 1994) (“the anti-discrimination section should be construed ‘expansively
to assure that miners will not be inhibited in any way in exercising any
rights afforded by the legislation.”’)(quoting S. Rep. No. 181, at 36 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, 94th Cong., 2d
Sess., at 624 (1978) (emphasis added).

Although the Secretary is not required to present a prima
facie case in a temporary reinstatement proceeding the Commission has
determined it useful to review the elements of a discrimination claim in order
to assess whether the evidence at this stage of the proceedings meets the
non-frivolous test. Sec'y of Labor o/b/o Williamson v. CAM Mining, LLC,
31 FMSHRC 1085 (Oct. 2009). In order to establish a prima facie case under
Section 105(c), a miner must show: (1) that he engaged in a protected activity;
and (2) that his termination was motivated, at least in part, by the protected
activity. See Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799
(Oct. 1980).

The Commission has held that evidence of motivation may be
shown by circumstantial evidence. See, e.g., Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2510-11 (Nov. 1981), rev'd on other grounds sub nom., Donovan
v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983) (holding that illegal
motive may be established if the facts support a reasonable inference of
discriminatory intent); Schulte v. Lizza Industries, Inc., 6 FMSHRC 8
(Jan. 1984). Circumstantial indicia of discriminatory intent by a mine operator
against a complaining miner include: (1) knowledge by the operator of the
protected activity, (2) hostility toward the miner because of his protected
activity, (3) coincidence in time between the protected activity and the
adverse action, and (4) disparate treatment of the complaining miner. Jungers
v. Borax, 15 FMSHRC 300, 308 (Feb. 1993).

Disposition

The Secretary has sufficiently demonstrated that the Application for Temporary Reinstatement was not frivolously brought. As stated above, a miner must raise a nonfrivolous claim that he engaged in a protected activity that has an arguable connection to an adverse employment action. The facts presented by the Secretary in this matter are sufficient to establish that there was reasonable cause to believe that there was such a causal nexus.

I find that the Secretary has sufficiently demonstrated that the Complainant engaged in a protected activity. Even if there was no direct order from a supervisor to open the breaker box and insert a finger inside, there is circumstantial evidence that it is management’s expectation that a miner do whatever is necessary, when maintenance is not available, to get the mill up and running. Thus, the Complainant’s withdrawal from these actions constitutes a protected activity.

I also find that the Secretary has sufficiently demonstrated that the Complainant suffered an adverse employment action when he was terminated. It is well established precedent that termination is an adverse employment action. It is also undisputed that the Complainant was terminated the day after the protected activity occurred. As such, the Complainant has suffered an adverse employment action.

Although Respondent claims he had
no knowledge of the protected activity when the decision to terminate was made,
the Secretary does not need to prove that the operator has actual knowledge of
a complainant’s protected activity in a temporary reinstatement proceeding,
only that there is a nonfrivolous issue as to knowledge. Sec’y of Labor o/b/o
Albu v. Chicopee Coal Co., 21 FMSHRC 717, 718 (July 1999). The
Complainant’s termination letter contains only a vague explanation as to why he
was discharged, citing his failure to “meet the standards and expectations set
forth by the company” and concerns related to “conduct and performance” as reasoning
for the decision. GEX 2. The termination letter also lists actions such as
leaving the workstation without authorization, leaving company property without
notice, and neglecting planned maintenance tasks. Id. Notably, it does
not explicitly reference other specific disciplinary measures that were taken
against the Complainant previously to support the termination. No other
justifications were provided to the Complainant as to why he was being
terminated. The absence of specific events noted in the termination latter
raise nonfrivolous issues regarding the Respondent’s knowledge of Complainant’s
protected activity and the potential that it played a role, at least in part, in
Complainant’s termination.

“Hostility towards protected
activity--sometimes referred to as ‘animus'--is another circumstantial factor
pointing to discriminatory motivation. The more such animus is specifically
directed towards the alleged discriminatee's protected activity, the more
probative weight it carries.” Phelps Dodge Corporation, 3 FMSHRC at 2511
(citations omitted). In this matter, there was undisputed testimony that Spears
allegedly commented, “Is this how you want to play this, really?” in response
to the Complainant’s refusal to perform an activity that he viewed as unsafe. Tr.

152. Although Tidaback, the person who made the ultimate decision to terminate,
     presented evidence that he was unaware of the protected activity, he testified
     that he takes into consideration the opinions and observations of supervisors
     when making termination decisions. Because mine management, including
     supervisors such as Hale and Spears, are aware of their opportunity to provide input
     in termination decisions, Complainant’s protected activity which they indisputably
     were aware of, could have influenced their recommendations to terminate the Complainant.
     This is sufficient to establish a nonfrivolous issue with regard to Respondent’s
     knowledge of Complainant’s protected activity as well as potential animus in
     this matter which may have influenced the input Tidaback received from his management
     officials, Hale and Spears on site.

The temporal proximity between the protected activity and the adverse employment action strongly supports the causal nexus. The Complainant engaged in the protected activity on September 13, 2023, and was then terminated on September 14, 2023. This is an extremely short period of time and easily meets the threshold to establish that the timing is sufficient to support the nexus.

A temporary reinstatement hearing
must be a full evidentiary process that permits all relevant evidence relating
to the adverse employment action. Sec’y of Labor o/b/o Cook v. Rockwell
Mining, LLC, 43 FMSHRC 157 165-66 (Apr. 2021). In response to the
Complainant’s discrimination complaint, the Respondent claimed that the
Complainant was terminated for reasons “strictly related to safety and
operational efficiency in the mine.” GEX 5. Accordingly, the Respondent was
permitted to present evidence and testimony throughout the hearing in support
of this position. “[R]esolving conflicts in the testimony, and ma[king]
credibility determinations in evaluating the Secretary’s prima facie case” are
simply not appropriate “at this stage in the proceeding.” CAM Mining, LLC,
31 FMSHRC at 1089 (citing Chicopee Coal Co. at 719). While the
Respondent’s evidence may be relevant or dispositive in a later discrimination
proceeding, the only purpose it serves in this proceeding is as an alternative
theory as to why the Respondent discharged the Complainant. See Sec’y of
Labor o/b/o Billings v. Proppant Specialists, LLC, 33 FMSHRC 2383, 2385
(Oct. 2011). There is no obligation to adopt this theory at this stage in the
proceeding, and it does not demonstrate that the Complainant brought forth a
frivolous complaint.

III. DECISION AND ORDER

For all of the reasons articulated
above I find that the Complainant presented sufficient evidence at hearing to
render his discrimination complaint non-frivolous. Accordingly, IT IS
ORDERED that Respondent Moseneca Manufacturer LLC d/b/a American Tripoli, immediately
reinstate Complainant Jimmy Lee Hoover to the position he held immediately
prior to the September 14, 2023 termination or to a similar position at the
same rate of pay and benefits and with the same or equivalent duties assigned.

The Court retains jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)(4). The Secretary shall provide a report on the status of the underlying discrimination complaint as soon as possible.

/s/
David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (Electronic and Certified mail)

Quinlan Moll, U.S. Department of Labor, Office of the
Solicitor, 2300 Main Street, Suite 10100, Kansas City, MO 64108, [email protected]

Russell Tidaback, Managing Member, American Tripoli, 222
Oneida Street, Seneca, MO 64865, [email protected]

Jimmy Lee Hoover, 1630 Cottage Lane, Seneca, MO 64865, [email protected]