Secretary of Labor on behalf of Juan Smitherman v. Warrior Met Coal Mining, LLC

Plain-English summary

Roof bolter Juan Smitherman raised a ventilation concern about missing fly pads and was discharged shortly afterward. Warrior Met said it fired him for sleeping and taking an unauthorized break under a last-chance agreement. The administrative law judge found discrimination, imposed a $20,000 civil penalty, and awarded backpay plus reimbursement of early 401(k) withdrawal fees. The Commission held that substantial evidence supported findings that Smitherman engaged in protected activity, that the activity motivated his discharge, and that the operator's stated reasons were pretextual. It emphasized the unclear break rule and conflicting management testimony supporting the sleeping charge. The Commission affirmed the judge's decision.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1) and 815(c)(2)
• Outcome: The discrimination finding, $20,000 penalty, backpay, and additional remedies were affirmed.
• Key point: Vague work rules and inconsistent evidence supporting discharge can show that an operator's stated reason is pretext for retaliation.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY OF
LABOR,

MINE SAFETY
AND HEALTH       

ADMINISTRATION
(MSHA)

on behalf
of JUAN SMITHERMAN

v.

WARRIOR MET
COAL MINING, LLC

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Docket No. SE
2021-0153-D

BEFORE:  Jordan, Chair; Althen and Rajkovich, Commissioners [1]

DECISION

BY
THE COMMISSION:

This
proceeding arises from a discrimination complaint filed by the Secretary of
Labor on behalf of Juan Smitherman, pursuant to section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2018) (“Act” or “Mine
Act”). [2]
The Secretary alleges Smitherman was terminated for raising a ventilation safety
complaint, while Warrior Met Coal Mining, LLC (“Warrior Met”) claims the miner
was discharged for violating work rules.

The
Administrative Law Judge found that Smitherman had engaged in protected
activity, that his subsequent termination was motivated by that protected
activity, and that Warrior Met’s alleged business justification was pretextual.
44 FMSHRC 72, 97-99 (Feb. 2022) (ALJ). The Judge issued a decision finding
discrimination and assessing a civil penalty, and a subsequent order on
additional remedies. Id. ; April 25, 2022 Order. On appeal, Warrior Met
challenges the Judge’s findings of protected activity and improper motivation,
and claims the Judge failed to consider the operator’s affirmative defense.

For
the reasons below, we affirm the Judge’s decision. We conclude that substantial
evidence supports the Judge’s findings that Secretary established a prima facie
case and that Warrior Met’s affirmative defense was pretextual.

I.        

Factual and Procedural Background

A.     Factual
Background

a. General Background and Early Incidents

At the time of the relevant
events, Juan Smitherman was a roof bolter on the Owl Shift (11:00 p.m. to 7:00 a.m.)
at Warrior Met’s No. 4 Mine in Brookwood, Alabama. Section Foreman Zachary
Salyers became Smitherman’s supervisor in January 2021. I:129. [3]

Smitherman and
Salyers had at least one safety-related dispute prior to the key events.  In
early February 2021, they had a disagreement as to whether dust bags were
required for roof bolters. [4]
Smitherman refused to work without dust bags, and Salyers ultimately provided
them. Smitherman testified that Salyers pushed him to run the roof bolter
without a dust bag, which Salyers contested. I:42-46, 130-33, 251-52; II:131.

Smitherman testified
to three additional incidents. First, he related seeing Salyers walk past
miners cutting without a curtain. He asked Salyers about it and Salyers said he
had not noticed. Smitherman responded, “I know you saw them,” Salyers asked why
Smitherman had “a problem with everything,” and it “got loud.” I:138-39. Smitherman
also recalled another incident where Salyers denied knowing that a curtain was
down and a third incident where he accused Salyers of not properly dusting an
entry. I:140-43. Salyers claims he and Smitherman had no safety-related disagreements
other than the dust bag issue. I:48; II:132.

b. February 28th Owl Shift – Fly Pad Ventilation
Complaint

During the
February 28th Owl Shift, Smitherman decided to walk by the next face
and saw that no drop board or fly pads had been installed. [5] He hung a
drop board then went to lunch. When he returned, the fly pads still had not
been installed and the other roof bolters on the shift (Jonathan Banks and
Steven Volts) had started bolting. Smitherman told Banks and Volts that they
were bolting without proper ventilation and needed to stop. They told
Smitherman they would find Salyers and see what he wanted them to do. [6] Banks and
Volts informed Salyers of the issue, and he had the ventilation controls in
place within an hour. I:52-53, 144-49, 258.

Smitherman and
Salyers disagreed on the content of Banks and Volts’ conversation with Salyers.
Salyers claimed they did not mention Smitherman. I:53; II:139. Smitherman was not
present but testified that Banks and Volts recounted the conversation to him. According
to Smitherman, they told Salyers “what [Smitherman] had said,” that Smitherman
refused to bolt without proper ventilation, and that they would not continue to
bolt because Smitherman would “tell on them.” I:150-51, 257. When interviewed
by MSHA Supervisory Special Investigator Thomas O’Donnell, Volts stated that he
did not mention Smitherman, and Banks said he could not remember. II: 69.

c.  March
1st Owl Shift - Transfer Request

Before the start
of the March 1st Owl Shift, Smitherman told Salyers that he wanted to transfer
to a different section. [7]
Smitherman did not explicitly identify a reason for his request, and
Salyers did not ask. I:153-54, 261-62; II:141, 172. Smitherman claimed he told
Salyers “I can’t be up there with them doing what they did the day before,” and
assumed Salyers knew he meant the fly pad issue because there had not been any
other serious incidents the previous shift. I:154, 262-63. Salyers claims
Smitherman made no mention of “what happened the day before,” and that he had
no idea why Smitherman wanted to be moved. I:54, 96; II:142, 172.

Salyers raised
Smitherman’s transfer request with his supervisor, who directed Salyers to reassign
Smitherman to the Lo-Trac. I:54-55; II:141-42. Salyers testified that Smitherman
was reassigned because the usual Lo-Trac operator was absent. II:143. Smitherman
conceded that the usual operator was absent and that he had relevant experience
but testified that running the   Lo-Trac is usually assigned to the service
crew or a junior miner. Smitherman felt he had been reassigned because he
slowed production when he stopped Banks and Volts from bolting but conceded he
did not know for certain. I:158-62, 268-69.

d. March 1st Owl Shift – Lo-Trac Work

Smitherman’s duties
that night included bringing up some pallets of block and a bundle of water
line and unloading supply cars. Smitherman claims Salyers also ordered him to
bring up and load supplies for the roof bolter, though Salyers contests this. I:158,
162, 174, 271, 278-79; II: 149-50, 153.

According to
Smitherman, he had a busy shift. He stocked the roof bolter, brought up
pallets, unloaded supply cars, looked (unsuccessfully) for the water line, and
brought up a rock duster at the request of the maintenance foreman. I:162-63,
174, 176, 280. He also testified to various complications such as grading
issues that made it difficult to maneuver the Lo-Trac and had to be addressed,
slowing his assigned work. I:164-65, 302-03. Finally, Smitherman stated that the
rock duster tipped over and broke the pallet it was sitting on, so he had to
wrestle the rock duster onto the Lo-Trac, take it to a new pallet, then wrestle
it off the Lo-Trac onto the pallet, at which point (around 6:00a.m.) he took a
rest break in the supply hole. I:167-68, 178.

Salyers found
Smitherman and asked after his progress during his 3:00 a.m. lunchbreak, and
again (as discussed further below) around 6:00 a.m. in the supply hole. Salyers
testified that he was not pleased with Smitherman’s progress at either point,
though he only said so during the 6:00 a.m. interaction. I:60-66, 168, 271, 282;
II:154-58. Smitherman concedes that during these interactions he did not tell
Salyers of the difficulties he encountered. I:270-73; II:155.

Smitherman testified
that by the end of the shift he had finished bringing up the pallets and
delivered everything except the water line, which he could not find. I:174,
182, 299, 305. Conversely, Salyers claims Smitherman completed none of his
assigned tasks because he had only brought up some of the pallets (to the wrong
location) and had not found the water pipes. I:60-63, II:154-56.

e.  March
1st Owl Shift - Supply Hole Confrontation

Salyers claims
that, on March 2 at approximately 6:00 a.m., he found Smitherman in the supply
hole, slumped over with the machine off, his hardhat and glasses off, and his
cap light off. Salyers claims he shined a light in Smitherman’s eyes with no
response, moved to within twenty feet and called Smitherman’s name, which “startled”
him. Salyers concluded that Smitherman had been sleeping. II:155-57.  

Smitherman claims
he was not asleep and was only taking a break after wrestling with the rock
duster. He explained that he turned off the Lo-Trac because the supply hole had
poor circulation and the heat and exhaust fumes would have been unpleasant. He
denied taking off his headlamp or turning off his light and made no mention of
being startled. I:167-68, 179-81.

The outline of
the ensuing conversation is uncontested: Salyers asked Smitherman what he was
doing, and Smitherman said he was taking a break. Salyers asked Smitherman why
he hadn’t finished more of his work and threatened to write him up (without
specifying the charge), and Smitherman told Salyers to “do what he had to do.” I:168;
II:158. However, the accounts vary as to specifics and tone.

According to
Salyers, when Smitherman said he was taking a break, Salyers told Smitherman he
had already had his lunch break and asked why he hadn’t gotten anything done. Smitherman
responded, “I told you I didn’t want to work for you.” At that point, Salyers
told Smitherman the transfer hadn’t been his decision and he was going to write
him up. II:155-58.

According to
Smitherman, Salyers asked why he had not brought up all the supplies, and Smitherman
said he was “not done.” Salyers started yelling and threatened to write
Smitherman up. Smitherman claims Salyers’ surprise at his lack of progress was “nonsense”
because Salyers had seen Smitherman working several times before lunch and had
assigned him additional tasks such as loading the roof bolter. Because
Smitherman believed Salyers was just “messing with [him],” he told Salyers to “do
what you got to do.” I:168-69, 282. Smitherman claims he tried to explain
everything that happened during the shift, but Salyers talked over him. I:300.

Shortly after,
Salyers informed his supervisor that Smitherman had been sleeping. The issue
was passed on to mine manager Chris Thielen, who asked HR manager Sherry
Sterling and general mine foreman Jason Lee to meet with the miners involved. I:35-36;
II:162, 188, 271.

f.   Subsequent
Investigation and Adverse Action

Sterling
testified that her normal disciplinary investigation process involves speaking
with witnesses, getting a written statement if the issue is sufficiently
complex, and making credibility determinations. She does not normally take notes
or issue reports. Disciplinary decisions are made by the mine manager (Thielen)
with Sterling’s assistance. II:179-84, 224-25.

Sterling and Lee
interviewed Smitherman and Salyers after the end of the March 1st owl shift. They
met with Smitherman first. Sterling claims Smitherman denied falling asleep but
conceded that he had not completed his assigned work. Smitherman gave Sterling
the names of two miners he claimed had seen him working shortly before 6:00 a.m.,
expressed unhappiness with the safety culture at the mine, and (either during
the interview or a later phone call) informed Sterling that people had been
bolting without proper ventilation. I:184, 187-89, 192, 208, 212; II:188, 193. She
did not speak with Smitherman again until the union meeting. II:209.

Sterling and Lee
next met with Salyers, who told them he had found Smitherman “slumped over with
his lights off . . . asleep, and that he didn’t complete [his] assignments.” II:189-90.
They asked Salyers to give a written statement, which provided a similar
description but did not use the word “sleeping.” I:77. Sterling claims she
asked for a written statement from Salyers (but not Smitherman) because Salyers’
allegation was “detailed” while Smitherman’s account was “simple”—he was not
sleeping and did not complete his tasks. II:190, 224-25. Salyers had no further
involvement other than a brief call with a union representative. I:98.

Smitherman was suspended
pending investigation. II:191-92. Sterling and Thielen then conducted various
interviews. They spoke with the two miners Smitherman claimed had seen him
working: according to Sterling they said they had not seen Smitherman that
shift, while according to Thielen they said they saw someone running the
Lo-Trac and assumed it was Smitherman. Sterling and Thielen also asked Banks
about the fly pad incident, and asked others on the section what they thought
of Salyers. II:18-19, 26, 193-97, 201-04, 274-76, 280.

Sterling and
Thielen also reviewed Smitherman’s personnel file and discovered that he had
been suspended in 2018 for sleeping (dozing near the end of an owl shift). I:122,
127-28; II:197. The resulting disciplinary agreement stated that “any further
violations of work rules . . . will result in immediate discharge.” Gov. Ex.
14.

On March 8,
Smitherman was issued a 5-day suspension with intent to discharge. Gov. Ex. 4. The
relevant paperwork lists a violation of Work Rule 1 (wasting time, loitering,
neglect of duties) and a violation of Work Rule 5 (sleeping on the premises).  

Thielen and
Sterling claimed that the loafing violation was uncontested because Smitherman
conceded he had not completed his assigned tasks. II: 221, 242, 281. Specifically,
Smitherman was disciplined for not working while tasks remained undone, i.e., taking
an “unauthorized break.” I:192; II:230, 281. Sterling testified that miners
should not take a break before completing their assignments. However, she was
unable to point to a written policy on breaks and could not recall any prior
discipline for taking a rest break. II:227-32. Smitherman testified that he had
never heard of an unauthorized break, never had to request permission for a
break, or heard of any miner previously being disciplined for an unauthorized
break. I:192-94.

Sterling and
Thielen found the sleeping violation based on Salyers’ account and Smitherman’s
previous suspension for sleeping. II:284-86. Sterling explained that she chose
to believe Salyers’ version of events because she found Smitherman to be
untruthful, based on the two miners’ failure to confirm that they had seen
Smitherman working. II:243-44, 249-50.

Thielen,
Sterling, and Smitherman met with union representatives on March 15, 2021, after
which Thielen upheld his decision to discharge Smitherman. II:210-11.

B.     Judge’s
Decision and Arguments on Appeal

The Judge
analyzed this matter under the Commission’s traditional Pasula-Robinette test,
in which a miner establishes a prima facie case of discrimination by showing
that he engaged in protected activity and was subject to an adverse action at
least partially motivated by that protected activity, while operators may
defend affirmatively by proving that the adverse action was also motivated by
the miner’s unprotected activity and would have been taken for the unprotected
activity alone. [8]
E.g. , Sec’y of Labor on behalf of Riordan
v. Knox Creek Coal Corp. , 38 FMSHRC 1914, 1919, 1923 (Aug.
2016). Neither party challenges the application of this test. Op. Br. at
21; Sec’y Br. at 3 n.1.  

The Judge found
that Smitherman engaged in protected activity primarily by raising the fly pad safety
complaint during the February 28th owl shift. 44 FMSHRC at 97. Although the
complaint was conveyed by other miners, the Judge found that Salyers made the “logical
connection” to Smitherman given their history of safety disputes, the fact that
Smitherman was working with the other roof bolters, and the coincidence in time
between the complaint and Smitherman’s transfer request. Id. at 73, 81, 98.
The Judge also found a causal nexus between the complaint and Smitherman’s
termination, noting Salyers’ knowledge of the complaint, the proximity in time
between the “core events,” and indicators of hostility. Id. at 98.

The Judge
rejected Warrior Met’s alleged business justification–that Smitherman was
terminated for violating work rules—as pretextual. Procedurally, the Judge found
the operator’s investigation was cursory, superficial and biased. Id. at

99. Substantively, he found that the allegations were ambiguous and not
    supported by the record. Id. at 84, 87, 91, 93, 97.

The Judge found
a section 105(c) violation, assessed a $20,000 civil penalty, and ordered
backpay for the period between Smitherman’s suspension and his temporary
reinstatement and reimbursement of Smitherman’s 401(k) early withdrawal fees. Id.
at 100; April 25, 2022 Order.

On appeal, Warrior
Met challenges the Judge’s findings of protected activity, causal nexus, and
pretext. [9]
The operator claims Smitherman never made a safety complaint to Salyers about
the fly pads (either directly or indirectly), challenges the Judge’s findings as
to knowledge and animus, and claims that the disciplinary investigation had a
reasonable basis for concluding that Smitherman was sleeping and loafing.

II.   

Disposition

The Judge found that Smitherman
engaged in protected activity, that the protected activity motivated his
termination, and that Warrior Met’s business justification was pretextual. A
Judge’s factual findings in the context of a discrimination proceeding are
reviewed under the substantial evidence standard. E.g. , Sec’y of
Labor on behalf of Knotts v. Tanglewood Energy, Inc. , 19 FMSHRC 822, 837
(May 1997). “Substantial evidence” means “such relevant evidence as a
reasonable mind might accept as adequate to support [the judge’s] conclusion.” Rochester
& Pittsburgh Coal Co. , 11 FMSHRC 2159, 2163 (November 1989)
(quoting  Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229
(1938)). As discussed below, substantial evidence in the record supports his
findings of protected activity, improper motivation and pretext. Accordingly,
we affirm the Judge’s conclusion that discrimination occurred.

A.     Substantial evidence supports the Judge’s
finding of protected activity.

The
Judge found that Smitherman engaged in protected activity by raising the
February 28th fly pad complaint. [10]
44 FMSHRC at 97. As a preliminary matter, the ventilation issue reached Salyers
indirectly, through Banks and Volts. I:150, 260-61. The Commission has found
discrimination where an operator mistakenly believed a miner had engaged in
protected activity. Moses v. Whitley Development Corp. , 4 FMSHRC 1475,
1480 (Aug. 1982). Applying the same framework, protected activity here turns on
whether Salyers believed Smitherman was involved in raising the
complaint.

The
Judge discredited Salyers’ claim that he was unaware of Smitherman’s involvement
in the ventilation complaint. [11]
Noting the two men’s history of friction and Salyer’s awareness that Smitherman
was on the section with Banks and Volts that shift, the Judge concluded that
Salyers “made the logical connection between Smitherman and his fellow bolters’
complaints.” 44 FMSHRC at 73. In other words, the Judge inferred that Salyers
believed Smitherman was involved in raising the ventilation issue because
Salyers was aware Smitherman had both the propensity and clear opportunity to
do so.

Elements
of a prima facie case may be sustained by reasonable inferences drawn from the
record. Con-Ag Inc. v. Sec’y of Labor , 897 F.3d 693, 700 (6th Cir.
2018). Such inferences are permissible provided they are inherently reasonable
and there is a logical and rational connection between the evidentiary facts
and the ultimate fact inferred. Mid-Continent Res., Inc. , 6 FMSHRC 1132,
1138 (May 1984).

Here,
the record clearly establishes the underlying evidentiary facts. Salyers
conceded that he and Smitherman had at least one prior disagreement regarding
dust bags, and the Judge reasonably credited Smitherman’s testimony regarding
three additional incidents between the two men. [12] I:42-48; 44
FMSHRC at 80. Salyers also testified that he assigned Smitherman to assist
Banks and Volts as the third “bolt man” on the February 28th owl shift. II:133.
In sum, the record clearly shows that three roof bolters were working together
on a shift, two of them raised a safety issue with their supervisor, the third roof
bolter had a history of raising safety issues, and the supervisor was aware of all
this. Given these evidentiary facts, it was reasonable for the Judge to infer Salyers’
belief in Smitherman’s involvement.

The
record establishes that Salyers believed Smitherman had the predisposition and clear
opportunity to be involved in the February 28th fly pad complaint. Based on
those underlying evidentiary facts, the Judge reasonably inferred Salyers’ belief
that Smitherman was involved. Accordingly, we affirm the finding of protected
activity.

B.     Substantial evidence supports a causal connection
between the complaint and Smitherman’s termination.

The Commission
looks to four indicia to establish whether an adverse action was motivated by
protected activity: (1) knowledge of the protected activity, (2) hostility
toward the protected activity, (3) coincidence in time between the protected
activity and the adverse action, and (4) disparate treatment of the
complainant. E.g. , Riordan , 38
FMSHRC at 1919, 1923.

Here, the Judge
found a causal connection between Smitherman’s discharge and his fly pad
complaint based on knowledge of the protected activity, coincidence in time,
and hostility. 44 FMSHRC at 98. As discussed above, substantial evidence
supports the Judge’s conclusion that Salyers knew Smitherman was involved in the
complaint. The coincidence in time—between one day and two weeks—is also well
within the bounds of Commission precedent. [13]
Finally, the record clearly indicates that at least some degree of safety-related
hostility existed: Salyers and Smitherman’s prior disagreement regarding dust
bags is uncontested, and the Judge reasonably credited Smitherman’s account of
other safety-related disputes, including a ventilation-related confrontation
that “got loud.” See supra pp. 8, 8 n.12; I:138-40.

The Judge also points
to two other potential indicators of hostility: Smitherman’s reassignment from
roof bolter to Lo-Trac operator, and the confrontation in the supply hole.   44
FMSHRC at 98; I:160-61, 168-69.

The record
clearly establishes sufficient evidence to support findings on knowledge,
coincidence in time, and a degree of hostility. The Commission has recognized
that a coincidence in time between protected activity and an adverse action may
alone be sufficient to establish discriminatory intent. E.g. , Pendley
v. Fed. Mine Safety & Health Review Comm’n , 601 F.3d 417, 427-28 (6th
Cir. 2010). Accordingly, substantial evidence supports the Judge’s finding of
improper motivation.

C.     Substantial evidence supports the Judge’s
finding of pretext for the affirmative defense.

Warrior Met could
have established an affirmative defense by showing that Smitherman’s termination
was also motivated by a belief that Smitherman had engaged in unprotected
activity, and that he would have been terminated for that unprotected activity
alone. E.g. , Knox Creek , 38 FMSHRC at 1919; Pendley , 601
F.3d at 426. Warrior Met claims Smitherman was legitimately discharged for
violating work rules against sleeping and loafing. Smitherman’s 2018
last-chance agreement clearly required his discharge in the event of a work
rule violation. I:287; Gov. Ex. P14. Accordingly, the question is whether the
alleged work rule violations credibly factored into Warrior Met’s motivation,
or whether the proffered business justification was pretextual. See Chacon ,
3 FMSHRC at 2516.

Substantial
evidence supports the Judge’s finding of pretext. [14] Two elements
of the record particularly support this finding. First, as the Judge notes, there
is a lack of clarity regarding the loafing charge. 44 FMSHRC at 93, 99, 99
n.23. The Commission has found pretext where a rule is applied “in a manner
deliberately calculated to render compliance difficult or impossible.” Sec’y
on behalf of Price v. Jim Walter Res., Inc. , 12 FMSHRC 1521, 1534 (Aug. 1990).
Here, Smitherman was allegedly discharged for taking an “unauthorized break”
before completing his tasks. I:192; II:277, 281, 287. However, the record shows
this concept of an “unauthorized break” was not clearly or consistently applied.
Sterling testified that employees should seek permission before taking a “breather,”
but that restroom and water breaks were permitted. She could not explain why only
some breaks were permitted, conceded there was no written policy on breaks, and
could not recall discharging any miner for taking a break. II:227-32. Smitherman
had never previously heard of an unauthorized break or heard of other miners
being discharged for taking a break. I:192-94. Without a policy or history of
enforcement, Smitherman had no guidance as to what constituted an “unauthorized
break.”

Second, a
conflict between Sterling and Thielen’s testimony seriously erodes the
legitimacy of the sleeping charge. Sterling testified that she chose to believe
Salyers’ account (Smitherman was sleeping) over Smitherman’s (he was not) because
Smitherman was untruthful on a related matter: he claimed two other miners saw
him working shortly before Salyers found him in the supply hole, but they denied
it when interviewed by Sterling and Thielen. II:243-51. Effectively, Sterling’s
conclusion that Smitherman violated Work Rule 5 depends on the two miners’
statement that they did not see Smitherman that shift , because it
convinced her to credit Salyers’ version of events. [15]

According to
Thielen, however, the miners claimed they saw someone operating the  Lo-Trac and
assumed it was Smitherman . II:275-76, 280, 295. Based on Thielen’s
testimony, Sterling loses her justification for crediting Salyers’ sleeping
allegation. As HR manager and mine manager, Sterling and Thielen were the two
people responsible for deciding whether Smitherman had violated work rules. Yet
their testimony regarding a key justification for finding the violation
of Work Rule 5 is incompatible. This inconsistency supports the finding of
pretext.

The
Judge took issue with other aspects of Warrior Met’s investigatory process. While
these additional factors do not necessarily establish pretext, neither do they
contradict a finding of pretext. [16]

Ultimately, as discussed
above, two key elements clearly establish pretext: the vagueness of the
“unauthorized break” charge, and the inconsistencies in critical testimony
regarding Sterling’s justification for concluding that Smitherman was sleeping.
The record contains sufficient evidence to support the Judge’s finding of
pretext. Accordingly, the Judge’s rejection of Warrior Met’s affirmative
defense is affirmed.

III.          

Conclusion

For
the reasons stated above, substantial evidence supports the Judge’s finding of discrimination.
Accordingly, we affirm the Judge’s decision.

/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

Distribution:

Brock Phillips

Maynard Cooper
& Gale, P.C.

1901 Sixth
Avenue North

1700 Regions /
Harbert Plaza

Birmingham, AL
35203

[email protected]

T. Hill Pickens

United Mine
Workers of America

18354 Quantico
Gateway Drive, Suite 200

Triangle, VA
22172

[email protected]

Juan Smitherman

924 Aster Place

Helena,
AL 35022

[email protected]

Susannah
M. Maltz, Esq.

Office of the
Solicitor

U.S. Department
of Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Emily
Toler-Scott, Esq.

Office of the
Solicitor

U.S. Department
of Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office of the
Solicitor

U.S. Department
of Labor

Division of
Mine Safety and Health

201 12th Street
South, Suite 401

Arlington, VA
22202

[email protected]

Administrative
Law Judge William B. Moran

Federal Mine
Safety & Health Review Commission

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

Washington, DC
20004-1710

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

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

Washington, DC
20004-1710

[email protected]

[1] Commissioner Timothy J. Baker has recused himself
from this matter.

[2] Section 105(c)(1) of the Act provides in relevant
part:

No person shall discharge or in any manner
discriminate against or cause to be discharged or cause discrimination against
. . . any miner . . . because such miner . . . has filed or made a complaint
under or related to this Act, including a complaint notifying the operator . .
. of an alleged danger or safety or health violation in a coal or other mine .
. . .

30 U.S.C. § 815(c)(1). Section
105(c)(2) provides that the Secretary shall file a complaint with the Commission
on behalf of a miner if she determines that section 105(c)(1) has been violated.

[3] Transcript volumes one and two are cited as “I:--”
and “II:--,” respectively.

[4] Smitherman
described dust bags as akin to a vacuum cleaner bag for the roof bolter’s dust
filter. I:131-32.

[5] Fly pads are
temporary curtains that direct air while allowing people and equipment to pass
through, akin to the plastic sheeting in industrial freezers. Fly pads are hung
from a drop board, which is a long piece of wood mounted to the ceiling. I:49-51,
145.

[6] Smitherman also looked for Salyers to discuss the fly
pad issue but did not find him. I:150. Smitherman never directly mentioned the
fly pad issue to Salyers. I:260.

[7] Smitherman had asked his shift foreman for a transfer
a few days earlier. I:155-56.

[8] Sec’y of
Labor on behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786 (Oct.
1980),  rev’d on other grounds ,  663 F.2d 1211 (3d Cir. 1981) ; Sec’y
of Labor on behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC 803
(Apr. 1981). The Ninth Circuit has since rejected Pasula-Robinette in
favor of a “but-for” standard. Thomas v. CalPortland Co ., 993 F.3d 1204
(9th Cir. 2021). Thomas is not binding here, as Warrior Met’s No. 4 Mine
is not located in the Ninth Circuit. Nevertheless, the Judge noted that he
would find discrimination under either standard. 44 FMSHRC at 97.

[9] Warrior Met also briefly challenges aspects of the
Judge’s order regarding remedies in a footnote of its petition for
discretionary review, without substantive discussion in either the petition or
subsequent briefing. PDR at 32 n.10. Each
issue raised in a petition must be “supported by detailed citations to the
record . . . and by statutes, regulations, or principal authorities relied
upon.” 30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(d). We find that Warrior
Met’s remedies arguments have been abandoned and decline to address them. See
RNS Services, Inc. , 18 FMSHRC 523, 526 n.6 (Apr. 1996), aff’d ,
115 F.3d 182 (3d Cir. 1997); Asarco Mining Co. , 15 FMSHRC
1303, 1304 n.3 (July 1993).

[10] The
Secretary claims the earlier dust bag dispute and Smitherman’s transfer request
independently constitute protected activity. Sec’y Resp. at 18-19. The
Commission has held that protected activity is not limited to the four corners
of the initial complaint, noting the Secretary’s authority to address
issues uncovered during the investigation. Sec’y on behalf of Dixon v.
Pontiki Coal Corp. , 19 FMSHRC 1009, 1016-18 (June 1997). Here,
however, the prior dispute and transfer request were not mentioned in either
the initial complaint or MSHA’s post-investigatory findings. Regardless,
we affirm the Judge’s finding that the “core charge” of the ventilation
complaint is sufficient to establish protected activity. 44 FMSHRC at 97-98, 98
n.20.  

[11]
The Judge generally did not find Salyers credible, noting inconsistencies in
his testimony and a “reluctance to answer straightforward questions.” 44 FMSHRC
at 75. Judges’ credibility determinations are entitled to great weight and are
only overturned for compelling reasons. E.g. , KenAmerican Res., Inc. ,
42 FMSHRC 1, 3-6 (Jan. 2020) aff’d , 33 F.4th 884, 891-92 (6th Cir. 2022) .

[12] The Judge noted that Smitherman described the
incidents “in detail and with particularity.” 44 FMSHRC at 80. While Smitherman
did not provide dates or locations for these additional incidents, he did
recall the relevant conversations in moderate detail. I:138-41.

[13] The fly pad complaint occurred on the February 28th
owl shift, the reassignment and supply hole confrontation occurred during the
March 1 owl shift, and the decision to terminate was made on March 8. The
Commission regularly finds a coincidence in time when the protected activity
and adverse action are separated by a longer period, even a few months
apart. E.g. , Pero v. Cyprus
Plateau Mining Corp. , 22 FMSHRC 1361, 1365 (Dec. 2000); Riordan , 38
FMSHRC at 1924.

[14] Warrior Met
claims the Judge failed to analyze its affirmative defense. Op. Br. at 27-28. The
Judge calls Warrior Met’s argument a “rebuttal” but his analysis is consistent
with an affirmative defense. See 44 FMSHRC at 99.

[15] The Judge
appears to have fundamentally disagreed with Sterling’s credibility-based
approach, instead focusing on whether there was sufficient evidence to support
Salyers’ claims. II:216-17, 243-51; 44 FMSHRC at 91, 94-95. An investigation is
not pretextual simply because a Judge disagrees with the investigatory
approach. See Chacon , 3 FMSHRC at 2517. Insofar as the Judge found
pretext because he would have required Salyers to prove his
allegations rather than deciding the issue based on credibility, t he Judge
erred by imposing his own judgment as to the appropriate burden of proof. However,
as discussed supra , there is reason to believe this particular
credibility determination was pretextual.

[16] The
Judge took issue with the operator’s investigation, finding it cursory and
superficial. 44 FMSHRC at 99. Certainly, t he quality of an
operator’s investigation may be considered in a pretext analysis. In this case,
the record suggests that the operator followed its normal processes, and it is
unclear the degree to which the cursory nature of this investigation
supports a finding of pretext. Cf. Con-Ag , 897 F.3d at 704. The
Judge also found evidence of bias in Sterling’s search of Smitherman’s
personnel file. 44 FMSHRC at 91, 93, 99, 99 n.22. It is not improper for an
investigator to check the file of someone under disciplinary investigation. Finally,
in taking issue with Warrior Met’s conclusion that Smitherman was loafing
and/or sleeping, the Judge implied Warrior Met had the burden of showing
that unprotected activity in fact occurred , and Warrior Met failed to do
so. 44 FMSHRC at 84, 87. In the affirmative defense context, the Commission
looks to the operator’s actual belief at the time rather than the ultimate
truth of the alleged unprotected activity. Pendley , 601
F.3d at 426; Chacon , 3 FMSHRC at 2517; Smith v. Chrysler Corp. , 155 F.3d 799, 806 (6th Cir.
1998) . We find that the Judge’s additional considerations constitute
harmless error at worst. See Fed. R. Civ. P. 61. Ultimately, given the
preponderance of evidence as discussed above, none of these issues call into
question the decision in this case.