Secretary of Labor obo Jimmy Lee Hoover v. MoSeneca Manufacturer, LLC d/b/a American Tripoli

Plain-English summary

Jimmy Lee Hoover refused to reach into an energized breaker box to reset mill equipment because he feared electrocution from the 220-volt current. American Tripoli terminated him the next morning, while maintaining that the decision resulted from his late return from lunch, disrespectful response, misconduct, and poor performance. At the temporary-reinstatement stage, the issue was only whether the discrimination complaint was frivolous, not which explanation was ultimately correct. The Commission found substantial evidence of a protected work refusal, discharge the next day, management knowledge, and close timing. It affirmed the order temporarily reinstating Hoover while the merits case proceeded.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: The ALJ's temporary reinstatement order was affirmed.
• Key point: Conflicting explanations for a discharge are resolved at the merits hearing when the miner first presents a non-frivolous retaliation claim.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF
LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION
(MSHA) : Docket No. CENT 2024-0024

on behalf of
JIMMY LEE HOOVER :

                                                                                                            :

v. :

                                                                                                            :

MOSENECA
MANUFACTURER :

LIMITED
LIABILITY COMPANY d/b/a/ :

AMERICAN TRIPOLI
:

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker,
Commissioners

DECISION

BY THE COMMISSION:

This temporary reinstatement
proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act”). On November 16, 2023, the Secretary
of Labor filed an Application for Temporary Reinstatement on behalf of Jimmy
Lee Hoover (“Hoover”) against MoSeneca Manufacturer Limited Liability Company
d/b/a/ American Tripoli (“MoSeneca”) pursuant to section 105(c)(2) of the Mine
Act, 30 U.S.C. § 815(c)(2).

On December 13, 2023, the
Administrative Law Judge issued an Order Granting Temporary Reinstatement of
Hoover. 45 FMSHRC __ (Docket No. CENT 2024-0024)(Dec. 13, 2023) (ALJ). On
December 15, MoSeneca filed a Petition seeking review of the Judge’s order. [1]
On December 21, the Judge issued an addendum to his December 13 Order. Subsequently,
on December 22, the Commission issued an order stating that any response by the
Secretary to the operator’s petition for review shall be filed by January 9,
2024. On January 9, the Secretary filed her response. For the reasons that
follow, we hereby affirm the Judge’s Order Granting Temporary Reinstatement.

I.

Factual and
Procedural Background

This case involves a mill located
at a mine in Newton, Missouri. The current owner, Russell Tidaback, has
employed the miner, Jimmy Lee Hoover, at the mill since June 2021. While trying
to start the mill on September 13, 2023, Hoover noticed that an airlock was not
running properly because of a malfunctioning circuit breaker. Tr. 29. Hoover
tried, but failed, to reset the circuit breaker using an external reset button
on the outside of a breaker box. Sec. Ex. 3 at 2. Hoover testified that he did
not attempt to manually reset the circuit breaker because this would have required
him to remove the cover of the breaker box, insert his hand into the box, and
switch on the internal manual reset. The manual reset would expose his hand to
an energized 220 volt current. In the past, when the circuit breaker needed to
be reset manually, Hoover had called maintenance staff for their assistance,
but there was no maintenance staff present at that time. Sec. Ex. 3 at 3.

Hoover reported the malfunctioning
circuit breaker to Don Hale, his immediate supervisor, and together with Hale,
reported it to Operations Manager John Spears. Sec. Ex. 3 at 3. Hoover alleged
that when he reported the malfunction to Spears, Spears responded that “we got
to make Russ[ell Tidaback] money.” Tr. at 33. Hoover testified that he
interpreted this statement as an instruction to do whatever was necessary to
reset the circuit breaker, including an internal manual reset. Tr. 59. However,
Hoover refused to perform the manual reset because of his fear that he might be
electrocuted if he inserted his hand into the energized breaker box. Tr. 92. Hoover
alleges Spears responded to Hoover’s work refusal by saying “is this how you’re
going to play it, really?” Tr. at 121.

After this conversation with
Spears, Hoover took his lunch break. Tr. 33. It is undisputed that Hoover was
late in returning from his lunch break. Tr. 16, 228. Hale claims that when he
informed Hoover of this delay, Hoover disrespectfully responded “I don’t care,
go ahead and write me up.” Tr. 219. At around 8 p.m. that evening, Hale
informed Russell Tidaback of Hoover’s delay in returning from lunch and
Hoover’s alleged disrespectful response when Hale informed him of his late
return. Resp’t Ex. H. Subsequently, Tidaback drafted a letter terminating
Hoover. The following morning, when Hoover arrived at the mine to start his
workday, Spears issued the termination letter to Hoover. Sec’s Ex. 2; Sec’s Ex.
3 at 3.

On September 25, 2023, Hoover
filed a complaint with MSHA over his termination. Michael Dillingham, an MSHA
investigator, investigated Hoover’s discrimination complaint, and concluded it
had not been frivolously brought. Subsequently, on November 16, 2023, the
Secretary filed an application for temporary reinstatement of Hoover. After a
hearing in this matter, the Judge found that the Secretary had “demonstrated
that the Application for Temporary Reinstatement was not frivolously brought.” ALJ
Dec. at 7.

The Judge found that Hoover engaged
in protected activity on September 13, 2023, when he refused to perform a manual
internal reset of the malfunctioning circuit breaker. The Judge used
circumstantial indicia of discriminatory intent to find that there was a
non-frivolous issue as to a motivational nexus between Hoover’s protected work
refusal and his termination. Id. at 7-9. The Judge noted that the
operator was “permitted to present evidence and testimony throughout the
hearing in support of [its] position” that Hoover was terminated solely for
unprotected activity. Id . at 8. However, the Judge found that while
evidence of Hoover’s unprotected activity “may be relevant or dispositive in a
later discrimination proceeding,” for purposes of temporary reinstatement, such
evidence simply provided an alternative theory as to why Hoover was terminated
and was insufficient to demonstrate “that the Complainant brought forth a
frivolous complaint.” Id at 8.

On December 15, 2023, the operator filed
a petition seeking review of the Judge’s order. The operator claims that the
Judge erroneously found protected activity because the “ALJ’s conclusion is
based more on subjective interpretation than on objective factual evidence.” Pet.
at 2. Moreover, the operator maintains that the protected activity played no
role in Hoover’s termination, asserting that “this is not a case in which the
complainant was . . . terminated due to . . . [a] protected act; rather, the
termination was due to . . . legitimate non-discriminatory reasons.” Id.
at 4.

II.

Disposition

Under section 105(c)(2) of the Mine
Act, “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 immediate reinstatement of the miner pending
final order on the complaint.” 30 U.S.C. § 815(c)(2). The “scope of a temporary
reinstatement hearing is narrow, being limited to a determination by the Judge
as to whether a miner’s discrimination complaint is frivolously brought.” See
Sec’y obo Price v. Jim Walter Res., Inc ., 9 FMSHRC 1305, 1306 (Aug. 1987),
aff’d , 920 F.2d 738 (11th Cir. 1990); Sec’y obo Jones v. Kingston
Mining, Inc. , 37 FMSHRC 2519, 2522 (Nov. 2015). The Commission reviews a Judge’s
temporary reinstatement order under the substantial evidence standard. Sec’y
obo Williamson v. Cam Mining, LLC , 31 FMSHRC 1085, 1088 (Oct. 2009). As the
Commission has recognized, “[i]t [is] not the Judge's
duty, nor is it the Commission’s, to resolve the conflict in testimony at this
preliminary stage of the proceedings.” Sec’y obo Albu v. Chicopee Coal C o.,
21 FMSHRC 717, 719 (July 1999).

        “While an applicant

for temporary reinstatement need not prove a prima facie case of
discrimination, it is 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. In order to establish a prima facie case of
discrimination under section 105(c) of the Act, a complaining miner bears the
burden of establishing (1) that he engaged in protected activity and (2) that
the adverse action complained of was motivated in any part by that activity.” Sec’y
obo Williamson, 31 FMSHRC at 1088.

Discriminatory motive may be shown by indirect evidence
establishing a motivational nexus between the miner’s protected activity and
the adverse action. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp. ,
3 FMSHRC 2508, 2510 (Nov. 1981) (citing NLRB v. Melrose Processing
Co. , 351 F.2d 693, 698 (8th Cir. 1965)). The
Commission has held that discriminatory motive can be established by
circumstantial evidence of: (1) knowledge of the protected activity, (2) hostility
or animus towards the miner regarding the protected activity, (3) temporal
proximity, i.e. coincidence in time between the protected activity and
the adverse action, and (4) disparate treatment of the complainant. Id. at
2510-12.

In his decision,
the Judge found that the miner had engaged in protected activity by allegedly
refusing unsafe work. ALJ Dec. at 7. Hoover testified he was aware of a miner
receiving an electrical shock after touching an Allen wrench located in a
breaker box which was supposed to have been de-energized. Tr. 91-92 (“Don
grabbed a Allen wrench that was in a breaker box and said it was shut off and
he grabbed that and it lit him up. And it was supposed to be dead. That was in
my head, too, while I was looking at this breaker box.”). Additionally, Hoover’s testimony that Spears told him “we
got to make Russ [Tidaback] money” (Tr. 33), while contested, could reasonably
be construed as an instruction to Hoover.

The operator did not dispute that Hoover had a good faith reasonable belief that performing a
manual internal reset of the circuit breaker would expose him to a perceived
hazard. We note that the Commission has
recognized a miner’s protected right to refuse work in the face of a perceived
safety or health danger. Dykhoff v. U.S. Borax, 22 FMSHRC 1194, 1198
(Oct. 2000) (citing Price v. Monterey Coal Co., 12 FMSHRC 1505, 1514
(Aug. 1990)) . In order to be protected, “work refusals must be based
upon the miner’s good faith, reasonable belief in a hazardous condition.” Dykhoff, 22 FMSHRC at
1198. As a result, the Judge appropriately determined that Hoover’s
alleged refusal to perform an alleged unsafe act – a manual internal reset of
the circuit breaker – raised a non-frivolous claim that he engaged in protected
activity. Therefore, we find that substantial evidence demonstrates a
non-frivolous claim that Hoover, by refusing to perform the unsafe act, engaged
in protected activity.

In its petition
seeking review of the Judge’s order, the operator claims that the Judge’s
determination that the miner engaged in protected activity was not based on any
direct orders or explicit actions, but on circumstantial evidence. In support
of this position, Respondent cited evidence that it submitted at hearing that
no member of Respondent’s management ordered Hoover to place his hand inside
the energized breaker box. However, the ALJ addressed this evidence, noting the
existence of countervailing “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.” ALJ Dec. at 7. The Judge noted this
conflict in the testimony, but appropriately did not resolve the conflict or
make credibility determinations. Id . at 8 (citing Sec’y of Labor obo
Williamson , 31 FMSHRC at 1089) (Resolving conflicts in the testimony,
and making credibility determinations in evaluating the Secretary’s prima facie
case are simply not appropriate “at this stage in the proceeding.”). Conflicts
in the evidence should be resolved at the hearing on the merits.

In addition to
finding protected activity, the Judge also found that it is undisputed that the
miner suffered an adverse employment action, in that he was discharged. ALJ
Dec. at 7. Substantial evidence supports this finding as well.

The Judge
determined that the Secretary had raised a non-frivolous issue as to whether
there was a motivational connection between the protected activity and the
adverse employment action. The Judge found that it was undisputed that the
miner suffered an adverse employment action the day after he alleged to have
engaged in protected activity. ALJ Dec. at 7. Finally, the Judge determined
that Secretary raised non-frivolous issues as to whether Respondent had
knowledge of Hoover’s alleged protected activity and whether Respondent
displayed animus towards that alleged protected activity. Id . at 7-8. On
appeal, the operator does not challenge the Judge’s findings regarding temporal
proximity and knowledge. Pet. at 1-5. The Judge’s undisputed findings “ can be sufficient by themselves to establish a nexus
between the protected activity and the adverse action.” Sec’y obo
Roger Cook v. Rockwell Mining, LLC, 43 FMSHRC 157, 163 (Apr. 2021) ( citing
Sec'y of Labor on behalf of Stahl v. A&K Earth Movers Inc ., 22 FMSHRC
323, 325-26 (Mar. 2000)) .

In response to the Secretary’s
presentation regarding discrimination, Respondent asserted that it had
terminated Hoover solely for unprotected activity – misconduct and poor
performance. Pet. at 2. However, the Judge appropriately declined to rule on
the operator’s theory that Hoover was terminated solely for his unprotected
activity. As noted previously, the Judge’s role during temporary reinstatement
proceedings is to simply determine whether substantial evidence established
that the discrimination complaint was nonfrivolous. Jim Walter, 920 F.2d
at 744. In this case, ruling on the operator’s theory would have required the
Judge to go beyond the nonfrivolous standard to impermissibly weigh evidence
and/or render credibility determinations. CAM Mining, LLC , 31 FMSHRC at
1089. Therefore, the Judge appropriately declined to consider Respondent’s
argument at the temporary reinstatement stage.

III.

Conclusion

Substantial evidence supports the
Judge’s finding that the Secretary demonstrated that the Application for
Temporary Reinstatement was not frivolously brought. Therefore, the Judge’s
order granting temporary reinstatement is affirmed.

/s/ Mary Lu
Jordan

Mary Lu Jordan, Chair

/s/ William I.
Althen

William I.
Althen, Commissioner

/s/ Marco M.
Rajkovich, Jr.

Marco M.
Rajkovich, Jr., Commissioner

/s/ Timothy J.
Baker

Timothy J. Baker,
Commissioner

Distribution:

Russell Tidaback

American Tripoli

222 Oneida Street

Seneca, MO 64865

[email protected]

Jimmy Lee Hoover

1630 Cottage Ln.

Seneca, MO 64865

[email protected]

Alexandra J. Gilewicz, Esq.

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12 th Street South, Suite 401

Arlington, VA 22202

[email protected]

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12 th Street South, Suite 401

Arlington, VA 22202

[email protected]

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12 th Street South, Suite 401

Arlington, VA 22202

[email protected]

Melanie Garris

Civil Penalty Compliance Division Chief

U.S. Department of Labor

Office of Assessments

Mine Safety and Health Administration

201 12 th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety & Health Review Commission

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW, Suite 520 N

Washington, DC 20004-1710

[email protected]

Administrative Law Judge David Simonton

Federal Mine Safety and Health Review Commission

Office of the Chief Administrative Law Judge

721 19 th St. Suite 443

Denver, CO 80202-2536

[email protected]

[1] MoSeneca filed what it termed a petition for
discretionary review, which the Commission construed as a petition seeking
review of the Judge’s reinstatement order pursuant to 29 C.F.R. § 2700.45.