Pete Tartaglia, Jr. v. Freeport-McMoRan Bagdad, Inc.

Plain-English summary

Pete Tartaglia alleged that Freeport-McMoRan Bagdad breached an earlier settlement, improperly recouped money from his pay, and disciplined him in retaliation for Mine Act activity. Judge David Simonton found that the company fulfilled the settlement and that the payroll deductions recovered a duplicate bonus payment rather than funding the settlement. The judge excused the timing of the bonus claim because Tartaglia had called MSHA's hotline, but held that correcting the accounting error was not a discriminatory adverse action. Tartaglia established an initial inference concerning a final written warning issued soon after protected activity. The company rebutted that inference by showing that the warning resulted from Tartaglia's repeated refusal to attend assigned equipment training. The judge dismissed the discrimination complaint and awarded no remedies.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(1)-(3)
• Outcome: The discrimination complaint was dismissed.
• Key point: Close timing can support an initial discrimination inference, but documented discipline for refusing assigned training can rebut that inference.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th ST.
SUITE 443

DENVER, CO 80202-2500

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

December 2, 2020

PETE TARTAGLIA, JR.,

Complainant,

v.

FREEPORT-MCMORAN BAGDAD INC.,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. WEST 2019-0382-DM

MSHA Case No. RM-DM-2019-08

Mine ID: 02-00137

Mine: Freeport-McMoRan Bagdad
Inc.

DECISION AND
ORDER

Appearances:              Pete
Tartaglia, Jr., 8340 N. Thornydale Road #209, Suite 110, Tucson, AZ 85741

Laura E. Beverage, Jackson Kelly
PLLC, 1099 18 th Street, Suite 2150, Denver, CO 80202

Karl
F. Kumli, Jackson Kelly PLLC, 1099 18 th Street, Suite 2150, Denver,
CO 80202

Before:                       Judge Simonton

This case is before me upon a
complaint of discrimination filed by Pete Tartaglia, Jr. (“Tartaglia” or
“Complainant”) against Freeport-McMoRan Bagdad Inc. (“FMBI” or “Respondent”),
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). [1] Tartaglia complains
of numerous occurrences in which he believes FMBI has improperly discriminated
or retaliated against him. In particular, he asserts that FMBI violated a
settlement agreement reached in WEST 2018-0362-DM, wrongfully took money from
his paychecks, and disciplined him in April 2019 in response to his protected
activity. FMBI denies these claims and asserts that it fulfilled its
obligations under the settlement agreement, properly recouped a double payment
made to Mr. Tartaglia, and disciplined him in April 2019 solely because of his
refusal to complete assigned work.

A hearing was held on March 11,
2020 in Phoenix, Arizona. Based on my full consideration of the testimony and
exhibits presented at hearing, the stipulations of the parties, my observations
of the demeanors of the witnesses, and the parties’ post-hearing submissions, I
find that neither party violated the settlement agreement reached in
Tartaglia’s prior section 105(c) case. Further, I find that FMBI did not
violate the Mine Act in recouping money erroneously paid twice to Tartaglia or
in disciplining him on April 11, 2019.

I.          
STIPULATIONS

At hearing, the parties agreed to
the following joint stipulations:

The Freeport-McMoRan Bagdad Inc. Mine, Mine I.D. No.
02-00137, is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 801 et seq . (the “Mine Act”).

Freeport-McMoRan Bagdad Inc. is an operator within the
meaning of the Mine Act.

The Administrative Law Judge has jurisdiction of this
matter.

Tartaglia was employed by Freeport-McMoRan Bagdad Inc. and
was therefore a “miner” as defined by § 3(g) of the Act, at all times
relevant to this proceeding.

Tartaglia filed a complaint under § 815(c) on or about
March 20, 2019.

That complaint was investigated by MSHA and on or about
May 20, 2019, MSHA indicated to Tartaglia that it would not pursue the
claim. Tartaglia then initiated his Pro Se Discrimination Complaint on or
around June 19, 2019.

Tartaglia filed a hotline complaint with MSHA on November
20, 2018.

Tr. 11–16.

II.          
ISSUES

Tartaglia’s pleadings were unclear
regarding the scope of the claims he would pursue at hearing. On December 30,
2019, FMBI filed a motion in limine to limit the scope of issues before the
court, requesting that the issues to be tried be limited to those Tartaglia
articulated in his March 20, 2019 complaint to the Mine Safety and Health
Administration (MSHA) or that arose during the pendency of the investigation of
that complaint. Following a conference call and a response submitted by
Tartaglia, I enumerated the issues that would be entertained at hearing in a
February 10, 2020 order. After further submissions and another conference call
with the parties, some additions were made to that list. As announced and
agreed to by the parties at hearing, the five issues before the court are:

Whether either party violated the settlement agreement entered
into at hearing in WEST 2018-0362-DM.

Whether Tartaglia’s allegation regarding FMBI’s recovery
of bonus money erroneously paid twice is time-barred under section
105(c)(2) of the Mine Act.

If not time-barred, whether the recovery of bonus money
erroneously paid twice to Tartaglia is an adverse action motivated by
protected activity.

Whether disciplinary action taken against Tartaglia on
April 11, 2019, was an adverse action motivated by protected activity.

If a violation of section 105(c) is found, what remedies
are available to Tartaglia.

Tr. 22–23.

III.          
FINDINGS OF FACT

A.     Tartaglia’s
First MSHA Action and Settlement

The instant case is not Tartaglia’s
first action before this court. Tartaglia’s prior section 105(c) case, assigned
Docket No. WEST 2018-0362-DM, went to hearing before me on September 19–20, 2018.
At that hearing, the parties reached a settlement and read the terms of the
agreement into the record. The terms provided that (1) FMBI would make a cash
payment to Tartaglia for housing costs, (2) FMBI would provide a neutral reference
for Tartaglia from a Freeport-McMoRan employee outside of FMBI, (3) Tartaglia
would maintain the confidentiality of the settlement terms, and (4) Tartaglia
would release all pending and potential claims up to the time of hearing. Respondent’s
Post-Hearing Brief (Resp. Br.) at 3.

Following that hearing, FMBI
produced a written version of the parties’ agreement. The court held numerous
conference calls to address concerns Tartaglia had with the details and
language of the written version. After revisions were made, Tartaglia
ultimately signed the written agreement, but later determined that he did not
wish to adhere to its terms. FMBI elected not to submit the written agreement
for review and approval. On January 14, 2019, I directed Tartaglia to either
provide proof that he complied with the settlement terms reached orally at
hearing or to notify the court that he wished to submit a post-hearing brief
and pursue a decision on the merits. He failed to timely elect either option.

On January 25, 2019, FMBI submitted
a motion to enforce the settlement agreement as stated on the record and to
file that portion of the hearing transcript under seal. Tartaglia then
submitted a brief response reiterating his intention not to comply with the
settlement terms. On February 11, 2019, I issued a Decision Approving
Settlement Under Seal and Order Enforcing Settlement Agreement finding that the
agreement entered into at the hearing on September 20, 2018 was valid and
enforceable. Tartaglia had not put forth any evidence that FMBI misrepresented
or failed to comply with its responsibilities under the settlement agreement. Having
received no valid legal justification to set aside the agreement and no request
from Tartaglia stating he wished to pursue a decision on the merits, I granted
Freeport's motion to enforce the settlement agreed to on the record at hearing.

In the present matter, Tartaglia alleges
that FMBI violated the settlement agreement. Complainant’s Complaint Letter received
June 24, 2019. In particular, he asserts that FMBI stole money from his
paychecks and then paid that money out to him in his settlement check. Id. ;
Tr. 210, 223–24.

FMBI proffered evidence of its attempt to
provide Tartaglia with the settlement money. Following my February 11, 2019
decision upholding the settlement and dismissing the first action, FMBI sent a
check via certified mail on March 5, 2019 for the agreed-upon amount. Tr. 327–28;
Ex. R-I. The check was accompanied by a letter signed by FMBI’s human resources
manager, Michelle Kessler, which referenced the docket number in that case and
the confidential agreement the parties had entered. Ex. R-I; Tr. 327–28.

As he asserted at hearing in this
case, Tartaglia had no interest in cashing the check because he believed the
money was wrongfully taken out of his pay. Tr. 233. However, as explored in
more detail below, the withdrawals made from his pay between November 11, 2018
and December 28, 2018 were unrelated to the settlement check. They were
necessary due to an accounting error FMBI made when it economically reinstated
Tartaglia pursuant to an arbitration decision issued in July 2018. The details
of that error are discussed infra .

Following the March 11, 2020 hearing in this
case, Tartaglia asked FMBI to send him a another check to replace the original one
which he had not posted. Resp. Br. at 7, Attach. A. The replacement check was
sent on March 25, 2020. Resp. Br. at 7, Attach. B. On April 11, 2020, after the
replacement check had been sent but before Tartaglia had retrieved it,
Tartaglia submitted a request to the court for a “Default Penalty Due to the
Failure to Comply Accordingly.” In the request, he asserted that FMBI had not
paid him the settlement money. FMBI, through counsel, provided the court with
the tracking information showing that the check had arrived at the post office
on March 28, 2020. Having determined that Tartaglia’s check had been available
at the address he provided for over two weeks, I denied his request for a
default penalty. Tartaglia then posted the check on April 16, 2020. Resp. Br.
at 7, Attach. F.

B.     Recovery
of Tartaglia’s Duplicate Bonus Payment

Prior to the September 2018 hearing,
Tartaglia participated in FMBI’s internal problem solving process which resulted
in a July 6, 2018 arbitration decision. Resp. Br. at 2–3, 7. That decision
required FMBI to reinstate Tartaglia to his former position and pay him for all
lost wages and benefits, less interim earnings. Id. at 2–3. Tartaglia
was economically reinstated effective July 29, 2018, and he returned to work on
or about August 20, 2018. Id. at 3.

In economically reinstating
Tartaglia, FMBI made a substantial error. Tartaglia was owed a $6,520.00 bonus,
and the company mistakenly disbursed it to him twice. First, the bonus amount
was added to an initial gross back pay calculation. Delbert Tso, a human
resource specialist employed by Freeport-McMoRan in Phoenix, was responsible
for calculating the back pay award owed to Tartaglia based on information
provided to him “from various sources.” Tr. 106–07; Resp. Br. at 4. Tso created
a spreadsheet which showed the back pay owed to Tartaglia from October 2017
through his return to work in August 2018. Tr. 107–08; Ex. R-EE. The
spreadsheet lists the regular earnings, overtime earnings, and $6,520.00 bonus
Tartaglia was owed, as well as vacation and sick leave owed. Tr. 108; Ex. R-EE.
Tso also incorporated into the spreadsheet a deduction of $6,240.00 for
unemployment benefits Tartaglia received between his termination and his
reinstatement. Tr. 108–09; Ex. R.-EE. Deducting unemployment in this way is a
standard practice. Tr. 109, 129.

Per Tso’s calculations as displayed
on the spreadsheet, Tartaglia was owed $50,896.53. Ex. R-EE. After approval
from the mine site, benefits department, and legal department, Tso emailed the corporate
payroll office for payout of the back pay award. Tr. 111. Tso’s involvement in
the process ended once he sent that email. Tr. 111.

Payroll supervisor Christina Jordan
testified about the payout from FMBI to Tartaglia. Tr. 167–70. She explained
that the $50,896.53 amount arrived at in the spreadsheet was the gross back pay
award and did not reflect taxes or other deductions. Tr. 168–69. After $18,935.91
in taxes and $9,296.62 in other deductions, the $50,896.53 back pay award owed
to Tartaglia totaled 22,663.80, [2] and that
amount was paid to him via direct deposit on August 30, 2018. Ex. R-FF.

Tartaglia was mistakenly paid the
$6,520.00 bonus a second time the following week, on September 7, 2018. Tr. 170–71.
That check was for $4,410.78, reflecting the bonus amount less taxes and other
deductions. Ex. R-GG. In explaining the error, payroll supervisor Jordan stated
that her department’s standard practice is to issue reinstatement amounts
separately from bonus checks. Tr. 170. Of course, in this instance, the bonus
amount had already been incorporated into the reinstatement amount. Human
resources manager Kessler informed Jordan of the error after it occurred. Tr.
171.

Kessler did not discover the error,
but testified that she was notified by her supervisor in Phoenix that the bonus
had been paid twice. Tr. 340–42. Apparently, the mistake happened because the original
back pay spreadsheet included the bonus, and then the compensation department
sent over a “separate ticket,” which initiated the mistaken second payment. Tr.

343. After she was notified of the error, Kessler called Tartaglia to inform
     him of what had happened. Tr. 350. As Kessler recalls, Tartaglia hung up on her
     before she could explain everything, so she called back and left a voicemail. Tr.
     350.

Following the phone communication,
Kessler sent Tartaglia a letter explaining the error and the recoupment options.
Tr. 258, 342, 350–51; Ex. R-HH. Notably, this letter informing Tartaglia of the
payment error was sent on September 17, 2018, just a few days prior to the September
19–20, 2018 hearing in WEST 2018-0362-DM. Tr. 258; Ex. R-HH. In the letter,
Kessler presented Tartaglia with two options for correcting the error. Ex. R-HH.
He could either provide payment for the net amount of $4,410.78 by September
28, 2018 or the company could deduct the total net amount from four paychecks
in approximately equal amounts. Id. The letter requested that Tartaglia
respond by September 28, 2018 to inform Kessler if he disputed the overpayment,
or, if not, to advise Kessler which option he wanted to elect for repayment of
the extra bonus. Id.

Tartaglia failed to timely respond
to Kessler’s letter. Tr. 354. Accordingly, as specified in the letter, Kessler
assumed that Tartaglia did not dispute the overpayment and that he would prefer
to have the $4,410.78 deducted from four paychecks. Tr. 354. The money was then
deducted from five of Tartaglia’s paychecks as follows:

Pay Date

Amount Withheld

11/02/2018

$1,304.00

11/16/2018

$1,304.00

11/30/2018

$1,304.00

12/14/2018

$800.63

12/28/2018

$1,807.37

TOTAL

$6,520.00

Ex. R-II; Tr. 173–74. The parties did not specifically address
why five withdrawals were made instead of four, but Jordan testified that the
fourth was for only $800.63 because Tartaglia did not have enough wages in that
pay period to cover the full $1,304.00. Tr. 194–95. Jordan further testified
that the gross bonus amount, $6,520.00, was deducted rather than the net amount
because taxes “self-adjust.” Tr. 174.

Prior to and at the hearing,
Tartaglia disputed FMBI’s assertion that the deductions were proper,
maintaining instead that FMBI stole this money from his checks in order to pay
his settlement. See, e.g. , Tr. 201, 224; Complainant’s Post-Hearing
Brief (Comp. Br.) at 3, 4. At Tartaglia’s request, FMBI senior human resources
generalist David Fendrich provided Tartaglia with requested copies of his check
stubs and reviewed the back pay spreadsheet with him. Tr. 427–28, 436. Tartaglia
remains unconvinced that the overpayment actually occurred and, thus, that the
recoupment was proper. Tr. 339, 344; Comp. Br. at 3, 4; see also Tr.
261, 437. Tartaglia has put forth no evidence to support his assertion that he
was not paid twice for the same bonus or that recoupment was improper. In fact,
he acknowledged at hearing that he did receive two direct deposits in his bank
account, one for $22,663.80 and a second for $4,410.78. Tr. 257; Ex. R-JJ. Though
these numbers align with FMBI’s position, Tartaglia seems to believe that the
first disbursement was for wages only and the second was for a bonus. See
Tr. 257.

On November 14, 2019, the parties
returned to the arbitrator who issued the July 2018 reinstatement award to
resolve this double payment issue and address the misunderstanding between the
parties about the implementation of the award. Tr. 437–39; Resp. Br. at 5. On
January 16, 2020, the arbitrator issued a decision upholding FMBI’s calculated
remedy and finding that Tartaglia was double-paid his bonus. Ex. R-DD; Tr. 439;
Resp. Br. at 5.

C.     Tartaglia’s
Complaints to MSHA

The parties agree that Tartaglia
filed a discrimination complaint with MSHA on or about March 20, 2019. Jt.
Stip. 5. The filing of that complaint marks the inception of this case. In that
document, Tartaglia alleged that he was being discriminated against by FMBI
because the company was “still blaming” him for an incident that took place in
October 2017, the payroll department was “wrongfully taking monies” from him, and
company housing was “wrongfully taking monies” from his payroll. Ex. R-A. The
complaint also made generic references to “criminal activity” and “interference
in the work place.” Id.

The parties further stipulated at
hearing that Tartaglia called MSHA’s hotline on November 20, 2018, four months
before he submitted the March 20, 2019 complaint. Jt. Stip. 7. Tartaglia produced
the MSHA Escalation Report documenting this hotline call in order to show that
“the complaint was filed in a timely manner.” Tr. 497. The report states that
the caller, Tartaglia, called to report retaliation for going to court regarding
safety issues he reported to MSHA. Ex. C-3. It notes that Tartaglia stated that
the case was closed with a settlement and that FMBI was now taking money out of
his paychecks and that he wanted an MSHA inspector to contact him. Id. No
further evidence relating to this hotline complaint was introduced, so it
remains unclear whether MSHA took any steps to investigate as Tartaglia
requested on the call.

D.     April 11,
2019 Disciplinary Action

At the time of his discharge by
FMBI in October 2017, Tartaglia was classified as a Truck Driver I and had just
successfully bid for the position of Shovel Operator I, though he had not yet
started training for the shovel operator position. Tr. 235–37, 276; Ex. R-Y. Tartaglia
was then reinstated pursuant to the July 2018 arbitration decision, and
physically returned to work in August 2018. Tr. 410; Resp. Br. at 5.

Upon his return to work, Tartaglia resumed
his previous position. He was retrained on a piece of equipment called a rubber
tire dozer (RTD), which is one skill required for the Shovel Operator I
position. Tr. 276, 370. Usually, miners progress from haul trucks to RTDs to
shovels. Tr. 93, 414. Crucially, however, RTD is not a standalone position: RTDs
support the shovel and are typically operated by haul truck drivers who have
completed necessary RTD training. Tr. 92–93, 414–15; Ex. R-W. Tartaglia had
operated an RTD prior to his termination, and completed task training in
October 2018 to get requalified on it when he came back to work. Tr. 276.

Because RTD is not a standalone
position, and since Tartaglia had bid successfully for the shovel position, he
was then due to move on to shovel training after getting requalified on the RTD.
Tr. 276, 373. He began Shovel Operator I training in December 2018, but quickly
discontinued it because he felt there were too many ongoing issues with FMBI. Tr.
238, 276, 418–19. He was uncomfortable with continuing the training at that
time. Tr. 203, 238.

Human resources generalist Fendrich,
mine supervisor Steve Rusinski, and senior supervisor Tommy O’Neill all asked
Tartaglia on various occasions whether he wanted to complete shovel operator
training. Tr. 277, 417; Exs. R-K, R-L, R-M. Tartaglia testified that he wanted
to continue operating a RTD, and he was surprised when the company told him
that RTD operator was not a standalone position. Tr. 203, see Tr. 291–96.
FMBI had another shovel coming online in 2019, and thus had a business need for
more shovel operators. Tr. 412; Exs. R-J, R-K, R-L; Resp. Br. at 5–6.

On February 6, 2019, Rusinski had a
conversation with Tartaglia about the shovel training. Ex. R-J. He told
Tartaglia that the company needed to train someone on the shovel, so Tartaglia
had to either begin training or give the company the go-ahead to train someone
else. Tr. 277; Ex. R-J. Tartaglia told Rusinski that the company could go ahead
with training someone else until he was done with his issues with FMBI. Tr.

279. Rusinski collected a written statement from Tartaglia to this effect. Ex.
     R-LL. Rusinski also asked Tartaglia to let him know if he wanted to run an RTD
     or a haul truck, and, according to Rusinski, Tartaglia communicated that he
     wanted to do both. Ex. R-J; Tr. 279–80.

On February 22, 2019, Fendrich and
O’Neill had a conversation with Tartaglia during which O’Neill informed
Tartaglia that the company needed a final answer from him regarding whether he
wanted to move forward with his shovel operator bid or go back to his previous classification
as a truck driver. Tr. 418–19; Exs. R-K, R-L. During that conversation,
Tartaglia was presented with the two unambiguous options, but seemed unwilling
to definitively select one. See Ex. R-L. He told O’Neill, as he had
previously told Rusinski, that the company could train someone else on the
shovel because he “didn’t have time for any training.” Tr. 419; Exs. R-J, R-L. Tartaglia
seemed to think that someone could be trained on the shovel without Tartaglia
losing his successful bid, but O’Neill informed him that that was not an
option. See Ex. R-K. O’Neill told Tartaglia that he would be requalified
on a truck and classified as a Truck Driver I and that he could re-apply for
future shovel positions. Id. Fendrich then stated his belief that the
next truck training class was scheduled to begin on April 1, 2019. Ex. R-L.

One month later, on March 22, 2019,
Fendrich had another conversation with Tartaglia about truck training. Tr. 423.
That day, Tartaglia was given a letter signed by O’Neill which memorialized the
February 22, 2019 conversation and again presented Tartaglia with the two
options. Ex. R-M. It communicated that the company “needs all employees in the
Shovel Operator I position to complete their training promptly.” Id. The
letter clarified that it was Tartaglia’s “final opportunity” to elect one of
two options:

(1) You will begin the shovel operator
training no later than April 9, 2019 and complete such training within nine
weeks. If you do not timely complete the training, you will receive a lateral
transfer back to the position of Truck Driver I (no reduction in pay) and be
required to take the next scheduled training necessary to requalify you on a
truck and complete such training within six weeks of starting it.

(2) You will receive a lateral transfer
back to the position of Truck Driver I (with no reduction in pay) and be
required to complete any training necessary to be requalified on a truck within
six weeks of such transfer. Of course, as we discussed (assuming you're
qualified), you may apply for any shovel operator bids that arise in the
future.

Id. The letter directed Tartaglia to provide an “ unqualified
decision . . . in writing ” to O’Neill or Fendrich by 5:00 p.m. on March
31, 2019. Id. It further notified Tartaglia that, if he failed to submit
a decision on time, the company would assume that he selected the second option
for a lateral transfer back to Truck Driver I. Id.

Tartaglia failed to submit a decision before the
5:00 p.m. deadline on March 31, 2019. At 6:39 p.m., he emailed Fendrich to declare
that he was “not up for any training” and that he was “on the Rubber Tire Dozer
and will stay there until everything is resolved . . . Final Response.” Ex. R-N.

According to a letter from O’Neill,
Tartaglia was instructed at the end of his shift on March 31, 2019 to attend
haul truck training, and Tartaglia stated at the time that he would not attend
the training. Ex. R-T. On April 1, 2019, Tartaglia reported to work and was
again notified that he was scheduled to begin haul truck training that day. Tr.
280–81. Tartaglia then informed Rusinski that he was not going to attend the
training because he had a lot going on with the company. Ex. R-Q. Rusinski understood
Tartaglia’s response to be a refusal to attend the training, and accordingly collected
written statements from Tartaglia. Tr. 280; Exs. R-O, R-P. In one of the
statements, Tartaglia stated that he had “made it clear to David Fendrich” that
he was “not up for no training” because he had “hearing, deposition,
investigations coming up.” Ex. R-O. In the other, Tartaglia claimed that the
actions FMBI was taking were retaliatory and noted that “[t]his will be reported
as retaliation.” Ex. R-P.

Based on his testimony at hearing,
it appears that Tartaglia believes he did not need to attend the training because
he had upcoming days off that had been approved by management. See Tr. 308–10.
However, Tartaglia did not put forth any evidence to show that the training
would have prevented him from taking his scheduled time off.

Following Tartaglia’s refusal to go
to the scheduled training, Rusinski placed Tartaglia on investigatory leave
with pay (IWP). Tr. 285; Ex. R–R. On the top of the IWP form, Tartaglia wrote
“This is under protest” and “This is not a refusal as well they are aware.” Ex.
R-R. Rusinski stated at hearing that Tartaglia “grabbed the paper and wrote
that on there and gave it back to me.” Tr. 285. Other than this statement, the
evidence and testimony support that the haul truck training was a work
assignment and that Tartaglia was unwilling to attend the training that day. See
Tr. 280–82, 429; Exs. R-O, R-P, R-Q, R-T.

After an investigation, FMBI made a
decision to issue a disciplinary action to Tartaglia. Tr. 432–33. On April 11,
2019, Tartaglia was issued a “final written warning” for his refusal to attend
the April 1, 2019 training. Tr. 433; Ex. R-S. In both the written warning and
in a letter issued by O’Neill the same day, the evolution of the problem was
recounted. Exs. R-S, R-T. In the letter, O’Neill explained to Tartaglia that

the Company has a business need for
you, in your position of Truck Driver I, to complete your truck driver training
and be certified to operate a Haul Truck. You will again be enrolled in the
next available Truck Driver training class, to begin no later than May 20,
2019, and expected to attend this assigned work. Per the Company's Guiding
Principles, for which you signed the most recent certification form on
12/19/2018, “Refusal to do assigned work . . .” is an action considered serious
in nature and may result in discipline, up to and including termination.

Ex. R-T. 

IV.          
DISPOSITION

Tartaglia alleges that FMBI
violated the settlement agreement entered into in WEST 2018-0362-DM. He further
asserts that FMBI violated the Mine Act when it recovered a duplicate bonus
payment and when it disciplined him on April 11, 2019. FMBI contends that it
did not violate the settlement agreement. Respondent also claims that the issue
of whether the recovery of the duplicate bonus payment violated the Mine Act is
time-barred. FMBI further maintains that neither the recovery of the duplicate
payment nor the April 11, 2019 discipline were adverse actions motivated by
protected activity under the Mine Act.

Below, I address the five issues
enumerated and agreed to by the parties at hearing.

A.     Neither
party violated the settlement agreement reached in WEST 2018-0362-DM.

FMBI did not allege at any point in
these proceedings that Tartaglia violated the settlement agreement. Accordingly,
my analysis on this issue is limited to whether FMBI violated the agreement as
alleged by Tartaglia in his filings and at hearing.

Tartaglia does not believe that FMBI
erroneously disbursed the same bonus to him twice. Tr. 204, 225, 256, 257, 266.
Rather, he believes that money was taken out of his paychecks in order to source
the money for the settlement check FMBI owed him. See Tr. 201, 224. This
assertion is without support. FMBI has shown that it did in fact pay Tartaglia twice
for a bonus and that the amount withdrawn from Tartaglia’s pay was equal to the
amount mistakenly paid. Moreover, FMBI sent the notice regarding the erroneous
double payment and Tartaglia’s options for returning the excess money to him on
September 17, 2018, before the hearing in the first case and thus before
the settlement was reached. Ex. R-HH; Tr. 258. Though the timing may be
suspect to Tartaglia, the evidence makes clear that the recovery of the
duplicate bonus is unrelated to the settlement.

Per the terms of the settlement
reached orally at hearing in Tartaglia’s prior case, FMBI was obligated to pay
Tartaglia a cash payment for housing expenses and to provide a neutral
reference from a Freeport-McMoRan employee outside of FMBI. As explained above,
FMBI sent a settlement check to Tartaglia on March 5, 2019. Ex. R-I. After
refusing to cash that check for over a year, Tartaglia requested a replacement
check following the hearing in this case. Resp. Br. at 7, Attach. A. One was
provided to him, and he posted it on April 16, 2020. Resp. Br. at 7, Attach. B,
Attach. F. Tartaglia made no allegations and put forth no evidence concerning
FMBI’s other obligation under the settlement—to provide him a neutral
reference. Human resources manager Kessler testified that to her knowledge
Tartaglia has not requested a reference from the company. Tr. 329.

FMBI has not claimed that Tartaglia
violated the settlement agreement, and Tartaglia has put forth no evidence to
suggest that FMBI failed to fulfill its obligations. Accordingly, based upon
the evidence and testimony presented at hearing, I find that neither party
violated the settlement reached in WEST 2018-0362-DM.

B.     The issue
regarding recovery of bonus money erroneously paid twice to Tartaglia is not
time-barred.

Section 105(c)(2) of the Mine Act
provides an avenue through which miners who believe they have been
discriminated against may file a complaint with the Secretary alleging such
discrimination. 30 U.S.C. § 815(c)(2). Complaints are to be filed “within 60
days after such violation occurs.” Id. In this case, Tartaglia filed his
section 105(c) complaint with MSHA on March 20, 2019. Jt. Stip. 5. This was some
six months after FMBI’s September 17, 2018 notice informing him that he had
been erroneously paid twice for a bonus. Ex. R-HH. It was also more than 60
days after December 28, 2018, which was the date FMBI completed its recoupment
of the erroneous payment. Ex. R-II. Thus, FMBI argues that the double bonus recovery
issue is time-barred under the Mine Act. Resp. Br. at 16–19.

The 60-day time limit is intended
to avoid stale claims, but the Commission has held that “a miner’s late filing
may be excused on the basis of ‘justifiable circumstances.’” David Hollis v.
Consolidation Coal Co. , 6 FMSHRC 21, 24 (Jan. 1984) (citation omitted). In
urging the court to find that this claim is time-barred, Respondent draws
comparisons to the Commission’s decision in Hollis v. Consolidation Coal Co.
Resp. Br. at 17–18. In that case, the complainant, Hollis, waited more than
four months after his discharge to file a complaint with the Secretary. Hollis ,
6 FMSHRC at 24. The judge did not find Hollis’ claimed ignorance of his rights
to be credible, since Hollis was chairman of his union’s safety committee, had
filed numerous safety complaints in the past, and had deliberately chosen to
seek other avenues of relief during the 60-day period following his discharge. Id.

The upshot of Hollis is that
“[t]imeliness questions must be resolved on a case-by-case basis, taking into
account the unique circumstances of each situation.” Id. While Tartaglia
has previously filed a discrimination complaint under section 105(c), the facts
of this case do not warrant a comparison to Hollis . Undoubtedly,
Tartaglia missed the 60-day filing window by a substantial margin when considering
he filed his complaint on March 20, 2019. However, Tartaglia made a call to the
MSHA hotline on November 20, 2018, approximately 60 days after he was notified
of the duplicate payment. Jt. Stip. 7; Ex. C-3. MSHA’s documentation of that
call states that Tartaglia called to “report retaliation” and assert that “the
Mine is taking money out of his paychecks.” Ex. C-3. It also notes that Tartaglia
requested that an inspector get in contact with him. Id.

At hearing, in response to the
court’s admission of the MSHA hotline call, FMBI pointed to its Freedom of
Information Act request response from MSHA, which indicates that Tartaglia’s complaint
was received by MSHA on March 27, 2019 and does not mention any investigation
arising out of the November call. Tr. 496–97; Ex. R-KK. Respondent argues that
the hotline call did not properly conform to the section 105(c) discrimination
complaint process. See Resp. Br. at 16–19. I am unwilling to hold Tartaglia
to the strict standard Respondent seems to urge given the absence of evidence
regarding MSHA’s actions in processing the hotline complaint. While Tartaglia
has some experience with filing section 105(c) complaints, his familiarity with
the process does not rise to the level shown in Hollis . FMBI has failed
to establish that Tartaglia knew that a hotline call was an insufficient way to
lodge a discrimination complaint with MSHA, and the court will not assume this
fact. This is especially true with regard to both the time requirements for
perfecting his discrimination complaint and his misunderstanding that his
hotline complaint met minimum filing requirements.

Accordingly, I find the November
20, 2018 MSHA hotline call to be a “justifiable circumstance” and excuse
Tartaglia’s late filing. The merits of the issue of the duplicate bonus
recovery are analyzed below.

C.     The
recovery of the duplicate bonus payment was not an adverse action motivated by
protected activity under the Mine Act.

Tartaglia asserts that FMBI did not
pay him twice for the same bonus. Tr. 204, 225, 256, 257, 266. As discussed
above, he believes that the withdrawals made from his paychecks were utilized
to pay his settlement. See Tr. 201, 224. The evidence put forth by FMBI
clearly shows that this is not the case, and that he was erroneously paid the
same bonus twice. Exs. R-EE, R-FF, R-GG, R-HH.

Having established that the
duplicate payment occurred , the issue here is whether FMBI violated the
Mine Act in recovering the erroneous payment. For the reasons set forth
below, I find that FMBI did not violate the Mine Act in recovering the money.

Section 105(c)(1) of the Mine Act
provides that a miner shall not be discharged or otherwise discriminated
against because they have made a complaint regarding an alleged safety or
health violation. 30 U.S.C. § 815(c)(1). Under the traditional Pasula-Robinette
framework, the Commission has held that a miner alleging discrimination
establishes a prima facie case of prohibited discrimination by presenting
evidence sufficient to support a conclusion that (1) the complainant engaged in
protected activity, and (2) the adverse action complained of was motivated in
any part by the protected activity. Jayson Turner v. Nat'l Cement Co. ,
33 FMSHRC 1059, 1064 (May 2011);  Driessen v. Nev. Goldfields, Inc. ,
20 FMSHRC 324, 328 (Apr. 1998);  Sec'y of Labor on behalf of Pasula v.
Consolidation Coal Co. , 2 FMSHRC 2786, 2799 (Oct. 1980),  rev'd
on other grounds sub nom. Consolidation Coal Co. v. Marshall , 663 F.2d
1211 (3d Cir. 1981);  Sec'y of Labor on behalf of Robinette v. United
Castle Coal Co. , 3 FMSHRC 805, 817–18 (Apr. 1981).

If a miner establishes a prima facie
case, the operator may rebut that case “by showing either that no protected
activity occurred or that the adverse action was in no part motivated by the
protected activity.” Turner , 33 FMSHRC at 1064. If the operator cannot
rebut the prima facie case, it may nevertheless defend affirmatively by proving
by a preponderance of the evidence that, although part of its motivation was
unlawful, the adverse action was also motivated by the miner’s unprotected
activity and it would have taken the adverse action against the miner
for the unprotected activity alone. Id. ; Pasula , 2 FMSHRC at
2799–2800.

1. Protected
   Activity

Complainants bear the burden of
establishing protected activity. Pasula , 2 FMSHRC at 2799–2800;  Sec’y
of Labor on behalf of Riordan v. Knox Creek Coal Corp. , 38 FMSHRC 1914,
1920–21 (2016). A miner has engaged in protected activity if they (1) have
“filed or made a complaint under or related to this Act, including a complaint
. . . of an alleged danger or safety or health violation;” (2) are “the subject
of medical evaluations and potential transfer under a standard published
pursuant to section 101;” (3) have “instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify
in any such proceeding;” or (4) have “exercised on behalf of himself or others
. . .any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1).

Tartaglia has engaged in numerous
instances of protected activity. In WEST 2018-0362-DM, he filed a complaint
which initiated proceedings under the Mine Act and culminated in a hearing on
September 19–20, 2018 with a settlement reached at that hearing. In further
proceedings in that case, the matter was remanded back to me by the Commission.
I issued a decision upholding the settlement on February 11, 2019. Tartaglia’s November
20, 2018 hotline call and his March 20, 2019 MSHA complaint filed in this
matter also constitute protected activity. Accordingly, Tartaglia has satisfied
this element of the prima facie case.

2. Adverse
   Action Motivated by Protected Activity

The Commission has defined “adverse
action” as “an action of commission or omission by the operator subjecting the
affected miner to discipline or a detriment in his employment relationship.” Sec’y
on behalf of Pendley v. Highland Mining Co. , 34 FMSHRC 1919, 1930 (Aug.
2012) (citations omitted). The question of whether an employer’s action
qualifies as “adverse” is thus decided on a case by case basis. Sec’y of
Labor ex. rel. Jenkins v. Hecla-Day Mines Corp. , 6 FMSHRC 1842, 1848 n.2
(Aug. 1984).

Tartaglia has failed to show how
the recovery of a bonus payment FMBI erroneously disbursed to him twice is an
adverse action motivated by his protected activity. He proffered no evidence suggesting
that the bonus payment subjected him to detriment in his employment
relationship. For its part, FMBI has shown precisely how the error was made and
how it went about correcting the error.

Imprudent as it was, I find that
the double payment was simply an accounting error, a mistake made by the people
in charge of Tartaglia’s economic reinstatement. It does not rise to the level
of an adverse employment action motivated in any part by Tartaglia’s protected
activity. Consequently, Tartaglia is unable to meet the elements of a prima
facie claim of discrimination on the bonus recovery issue.

D.     The April
11, 2019 discipline was not an adverse action motivated by protected activity
under the Mine Act.

Tartaglia’s second claim of
discrimination involves the final written warning he was issued on April 11,
2019 for his refusal to attend truck training on April 1, 2019. Though this
warning was issued several weeks after Tartaglia submitted his March 20, 2019
complaint to MSHA, it arose during the pendency of MSHA’s investigation and was
accepted as an issue in these proceedings. For the reasons that follow, I find
that FMBI did not violate the Mine Act in issuing Tartaglia a final written
warning.

1. Prima
   Facie Case

It bears repeating that to make out
a prima facie case of discrimination, a complainant need only present “evidence
sufficient to support a conclusion that the individual engaged in
protected activity and that the adverse action complained of was motivated in
any part by that activity.” Driessen , 20 FMSHRC at 328 (emphasis added).
“This burden is lower than the ultimate burden of persuasion, which the
complainant must sustain as to the overall question of whether section
105(c)(1) has been violated.” Turner , 33 FMSHRC at 1065. For the reasons
that follow, I find that Tartaglia has met this initial, low burden and
established a prima facie case of discrimination.

a.      Protected
Activity

FMBI argues that this claim does not
involve protected activity and insists that Tartaglia’s refusal to do the
training is not protected under the Mine Act. Resp. Br. at 20. However, as
noted above, Tartaglia engaged in numerous instances of protected activity
between September 2018 and March 2019, including a call and complaint to MSHA
and the engagement in the 105(c) process before this court. He has satisfied
the protected activity element of the prima facie discrimination case.

b.      Adverse
Action Motivated by Protected Activity

Regarding this issue, Tartaglia has
also shown that he was subject to an adverse action. The discipline he received
on April 11, 2019 fits plainly within the Commission’s definition of adverse
action as “an action of commission or omission by the operator subjecting the
affected minor to discipline or a detriment in his employment relationship.” Pendley ,
34 FMSHRC at 1930 (citations omitted).

In addition to protected activity and an adverse
action, the prima facie case requires the Complainant to demonstrate that there
is evidence sufficient to support an inference of a causal nexus—that is, that the
protected activity motivated Respondent to take the adverse action.

A miner need not provide direct
evidence of an operator’s discriminatory motive, but may provide
“circumstantial evidence . . . and reasonable inferences drawn therefrom may be
used to sustain a prima facie case.” Turner , 33 FMSHRC at 1066–67
(quoting Bradley v. Belva Coal Co. , 4 FMSHRC 982, 992 (June 1982)). In
evaluating whether a causal connection exists between the protected activity
and the adverse action, the Commission looks to four factors: “(1) the mine
operator's knowledge of the protected activity; (2) the mine operator's hostility
or ‘animus’ toward the protected activity; (3) the timing of the adverse action
in relation to the protected activity; and (4) the mine operator's disparate
treatment of the miner.”  Cumberland River Coal Co. , 712 F.3d at
318;  see also Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp. ,
3 FMSHRC 2508, 2510–12 (Nov. 1981),  rev'd on other grounds , 709
F.2d 86 (D.C. Cir. 1983). I will examine these factors in turn.

i.      Knowledge
of Protected Activity

Tartaglia’s engagement of the
105(c) process in his prior case before this court, his call to MSHA in
November 2018, and his March 2019 complaint are all sufficient to establish
that he engaged in protected activity. FMBI does not dispute these instances of
protected activity. While I acknowledge that FMBI was unaware of the November
2018 MSHA hotline call for some time, I find that, all told, Respondent had
knowledge of Tartaglia’s protected activity.

ii.      Animus
or Hostility Toward the Protected Activity

Throughout the hearing, Tartaglia
suggested that FMBI scheduled him for truck training in order to interfere with
his upcoming, approved days off which he was taking in order to engage in
depositions and other protected activity related to his claims against FMBI. See,
e.g. Tr. 465, 474. However, Tartaglia did not put forth any evidence to
demonstrate that the training schedule would interfere with his planned
activities outside of work. Tartaglia’s wholly unsupported allegations are
insufficient to support an inference that FMBI had any animus or hostility
toward his protected activity as it relates to his scheduled truck driver
training.

iii.      Timing

Tartaglia was disciplined on April
11, 2019, just a few weeks after he submitted his March 20, 2019 complaint to MSHA.
Ex. R-S; Jt. Stip. 5. The Commission does not apply “hard and fast criteria in
determining coincidence in time between protected activity and subsequent
adverse action when assessing an illegal motive.” Hicks v. Cobra Mining,
Inc. , 13 FMSHRC 523, 531 (Apr. 1991). Given the objectively short amount of
time between this instance of protected activity and the adverse action, I find
that a coincidence in time exists in Tartaglia’s case.

iv.      Disparate
Treatment

Tartaglia has not shown that he was
subject to disparate treatment. “Typical forms of disparate treatment are
encountered where employees guilty of the same, or more serious, offenses than
the alleged discriminatee escape the disciplinary fate which befalls the
latter.” Chacon , 3 FMSHRC at 2512. It is unclear whether any other
miners employed by FMBI have failed to attend training like Tartaglia. However,
the evidence overwhelmingly shows that Tartaglia was given numerous
opportunities to not only complete his required training but to choose which
position he desired to hold and be trained for. Tr. 277, 417–19, 423; Exs. R-J,
R-K, R-L, R-M, R-LL. Tartaglia’s refusal to attend assigned training
constitutes a “refusal to do assigned work,” which under Freeport-McMoRan’s
“Guiding Principles” is a serious action which “may result in immediate
discharge.” Ex. R-Z, p. 23–24; Tr. 39, 408–09. The final written warning was
less severe than the termination expressly permitted by the Guiding Principles
for this type of infraction. I find that Tartaglia was not subject to disparate
treatment.

v.      Conclusion

Because the facts and evidence put
forth in this case satisfy the knowledge and timing factors, and bearing in
mind that the prima facie burden is minimal, I find that Tartaglia has put
forth evidence that “ could support an inference” that the adverse action
was motivated, at least in part, by his protected activity. Turner , 33
FMSHRC at 1066 (citation omitted). As discussed below, however, I find that FMBI
has successfully rebutted Tartaglia’s prima facie case.

2. Rebuttal

The operator may rebut the miner's
prima facie case by showing either that no protected activity occurred or that
the adverse action was in no part motivated by the protected activity. Id.
at 1064. Having already rejected FMBI’s argument that no protected activity
occurred, I turn to its motivation behind the adverse action.

The evidence in this case is clear.
FMBI had a legitimate business need for a shovel operator, Tartaglia had an
outstanding bid for that position, and Tartaglia was notified numerous times of
the company’s need for him to be trained on the equipment. Tr. 418, 236–37;
Exs. R-M, R-T. Tartaglia started shovel training, discontinued it, and was
asked several times whether he would be availing himself of his bid. Tr. 238, Exs.
R-L, R-K, R-M. Tartaglia wished to continue operating the RTD, and was
surprised to learn it was not a standalone position. See Tr. 203, 292. Tartaglia
was then given a choice between Truck Driver I and Shovel Operator I. Ex. R-M. Both
positions required Tartaglia to attend training and both paid the same amount. Id.

FMBI went to great lengths to allow
Tartaglia the choice of which position he wanted to hold at the mine, and
eventually presented the ultimatum with a deadline. Id. Tartaglia was
informed that failure to make a timely decision would result in FMBI proceeding
under the assumption that he wished to give up his bid and return to the truck
driver position he had previously held. Id. He failed to make a
selection by the deadline, and thus it should have been no surprise to
Tartaglia that FMBI enrolled him in the next scheduled truck driver training.

Though he has shown coincidence in
time between the protected activity and adverse action and FMBI’s knowledge of
his protected activity, Tartaglia has failed to sustain the ultimate burden of
persuasion as to whether section 105(c) has been violated. FMBI has thoroughly
established that Tartaglia’s discipline was issued because of his refusal to do
assigned work. The final warning was issued after Tartaglia was instructed
numerous times over several months that he needed to attend training, either
for the shovel operator position or for his return to a truck driver role. Because
Tartaglia failed to proffer any evidence that the decision to discipline him was
motivated by his protected activity, I find that FMBI has successfully rebutted
Tartaglia’s prima facie case.

E.     FMBI has
not violated section 105(c), so no remedies are available to Tartaglia.

The final issue enumerated for
decision in this case is what remedies are available to Tartaglia if a
violation of section 105(c) were found. Because Tartaglia has failed to
establish that FMBI either breached the settlement agreement or improperly
discriminated against him, I need not reach the remedy issue.

V.          
ORDER

Accordingly, it is ORDERED that
the complaint of discrimination brought by Peter Tartaglia, Jr. is hereby DISMISSED .

/s/ David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (Email [3] )

Pete Tartaglia, Jr., [email protected]

Laura E. Beverage, Jackson Kelly PLLC, [email protected]

Karl F. Kumli, Jackson Kelly PLLC, [email protected]

[1] In this decision, the joint stipulations,
transcript, the Complainant’s exhibits, and Respondent’s exhibits are abbreviated
as “Jt. Stip.,” “Tr.,” “Ex. C-#,” and “Ex. R-#,” respectively.

[2] The court
recognizes that $50,896.53 minus $18,935.91 minus $9,296.62 equals $22,664.00,
not $22,663.80. However, in the check stub testified to by Jordan, Ex. R-FF, it
appears that the starting number was $50,896.33, $0.20 less than the number
arrived at in Tso’s spreadsheet, Ex. R-EE. This minor $0.20 discrepancy was
neither explained by FMBI nor challenged by Tartaglia, so I accept that $22,663.80
is the correct amount owed to Tartaglia after taxes and other deductions.

[3] For the
foreseeable future, Federal Mine Safety and Health Review Commission (FMSHRC)
notices, decisions, and orders will be sent only through electronic mail.
Because FMSHRC will not be monitoring incoming physical mail or faxes, parties
are encouraged to submit all filings through the agency’s electronic filing
system. If you are not able to file through our electronic filing system,
please send an email copy and we will file it for you.