Secretary of Labor obo Alvaro Saldivar vs. Grimes Rock, Inc.

Plain-English summary

Alvaro Saldivar alleged that Grimes Rock fired him one day after his latest safety complaint about mine equipment and after repeated requests for task-specific training. Grimes Rock relied on disciplinary write-ups but did not call witnesses to establish its asserted reason for the termination, and Saldivar disputed the write-ups. Judge Margaret A. Miller found evidence of protected complaints, management knowledge, close timing, and alleged hostility sufficient to show the discrimination claim was not frivolously brought. She rejected the company's argument that it had been denied a full hearing because its proposed relevant witnesses were permitted and it chose not to call them. Saldivar was ordered immediately reinstated to his former position with the same pay and benefits, and the Commission later affirmed the order.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1) and 815(c)(2)
• Outcome: Alvaro Saldivar was ordered immediately temporarily reinstated with his former pay and benefits.
• Subsequent review: The Commission affirmed the order in west-2021-0178-dm-commission.
• Key point: Safety complaints followed by termination the next day supported a nonfrivolous discrimination claim despite disputed disciplinary records.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

721 19TH STREET, SUITE
443

DENVER, CO 80202-2500

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

SECRETARY
OF LABOR,                                 :     APPLICATION FOR

MINE
SAFETY AND HEALTH                        :     TEMPORARY REINSTATEMENT

ADMINISTRATION
(MSHA),                          :    

on behalf
of ALVARO SALDIVAR,                  :     Docket No. WEST 2021-0178-DM

Complainant,                    :    

:

v.                                                   :

:

GRIMES
ROCK, INC.,                                        :     Mine: Grimes Rock,
Inc.

Respondent.                      :     Mine
ID: 04-05432

DECISION AND ORDER OF REINSTATEMENT

Appearances:
Karla Malagon, Jessica Flores, and Bruce Brown, Office of the Solicitor,

U.S. Department of Labor, Los
Angeles, California, for the Complainant

Peter
Goldenring and Mark Pachowicz, Pachowicz & Goldenring PLC,

Ventura, California, for the
Respondent

Before:
           Judge Miller

This case is before me
upon an application for temporary reinstatement filed pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (“Mine Act”), and 29 C.F.R. § 2700.45 et seq. On April 12, 2021, the Secretary
filed the application on behalf of Alvaro Saldivar seeking his reinstatement as
a lube and water truck/equipment operator at the Grimes Rock, Inc. Mine in
Fillmore, California, pending the final disposition of Saldivar’s
discrimination complaint.

This case was
originally assigned to Judge Richard Manning on April 13, 2021. Two days later,
the Respondent requested a hearing on the application for temporary
reinstatement. The parties agreed that the hearing could be set beyond the ten
calendar days provided for by Commission Rule 45, and Judge Manning set the
hearing for May 11, 2021.

The case was reassigned
to my docket on May 4, 2021. A hearing was held via Zoom for Government
videoconference on May 11, 2021. The parties presented witnesses and exhibits
and each filed a brief following the hearing.  For the reasons set forth below,
I grant the application for temporary reinstatement and retain jurisdiction
until final disposition of the complaint on the merits.

I.                
SUMMARY
OF THE EVIDENCE

Alvaro Saldivar, a
miner under the Mine Act, testified that he worked for Grimes Rock on two
separate occasions. He was first employed as a welder from May 2019 through
July 2019. Tr. 16. After leaving, Saldivar was hired again as a service
technician and an operator on October 5, 2020. Tr. 15-16. His employment was
terminated on January 15, 2021.

Saldivar testified
that, during his most recent stint of employment, he reported several safety
issues to his direct supervisor as well as mine management. Many of the issues involved
the water truck that he was tasked with operating. Saldivar was concerned with
the condition of the tires on the truck, which he claims were “bad,” “balding,”
and missing tread. Tr. 17. He stated that, as a result of the worn tires, he
was involved in an accident on December 10, 2020 in which the truck lost
traction as it drove uphill, ultimately sliding down the incline and hitting a
cinder block. Tr. 19. Saldivar was also concerned about mechanical issues with
the truck, including a long-term oil leak, leaking antifreeze, and a missing
shock absorber. Tr. 20.  According to Saldivar, he reported all of these issues
to his direct supervisor Rene Garcia and general manager Ernie Melendez on
multiple occasions. Tr. 18, 20. Saldivar testified his supervisors took no
action to remedy these issues, and that he was required to continue using the
truck in its poor condition. Tr. 18, 21.

Saldivar explained that
he made reports regarding a variety of faulty equipment. He testified that he
advised management of the bad brakes on an outdated motor grader, missing
roll-over protection system (ROPS) labels on the DAL #1 and #2 dozers, and
leaking diesel on service truck #40 at the mine. Tr. 22, 24, 26.

Saldivar also testified
that he had complained about the lack of proper training received. While he
signed documents stating that he received new miner training, Saldivar believed
that he did not receive the required specific task training relating to the
large equipment that he was required to operate. Tr. 21, 25-26, 28, 44; see
Ex. R-C. He testified that he had continually asked for task training on the
water truck, the motor grader, the dozers, and the service truck. Tr. 21,
25-26, 28. He said that he even made his requests in writing on his daily
pre-shift reports. According to Saldivar, his requests for additional training went
unaddressed. Tr. 22. On cross examination, Saldivar admitted that he received
training from the Quinn Company, but asserted that the training did not relate
to operation of the equipment but rather maintenance of certain equipment. Tr. 46-47,
74.

Grimes Rock issued five
disciplinary warnings to Saldivar during his second tenure of employment at the
mine. See Ex. K. For each warning, Saldivar testified that he did not
commit the infraction as written on the discipline form, and that he signed the
forms only to avoid losing his job. Tr. 49-50, 54-56, 59, 62-63, 64, 75. Saldivar
also testified as to his belief that his supervisors were acting in a
“malicious” manner towards him and that the discipline was being issued in
retaliation for his frequent complaints about jobsite safety hazards. Tr. 28,
59.

On January 15, 2021,
Saldivar was terminated by Grimes Rock. Tr. 27. He testified that his
termination occurred just one day after he last reported a safety issue on
January 14. Tr. 40.

II.             
DISCUSSION

Section 105(c) of the
Mine Act, 30 U.S.C. § 815(c), prohibits discrimination against miners for
exercising any protected right under the Act. The purpose of this protection is
to encourage miners “to play an active part in the enforcement of the Act,” in
recognition of the fact that “if miners are to be encouraged to be active in
matters of safety and health they must be protected against . . .
discrimination which they might suffer as a result of their participation.” S.
Rep. No. 95–181, 95th Cong. 1st Sess. 35 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., 95th Cong. 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 , at 623 (1978).

A miner that lodges a
complaint of discrimination under section 105(c) is entitled to “immediate
reinstatement . . . pending final order on the complaint” as long as the
complaint was “not frivolously brought.” 30 U.S.C. § 815(c)(2). The Commission
has stated that the scope of a temporary reinstatement proceeding is therefore
“narrow, being limited to a determination by the judge as to whether a miner's
discrimination complaint is frivolously brought.” Sec'y of Labor on behalf
of Price v. Jim Walter Res., Inc ., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd ,
920 F.2d 738 (11th Cir. 1990). This standard reflects a Congressional intent
that “employers should bear a proportionately greater burden of the risk of an
erroneous decision in a temporary reinstatement proceeding.” Jim Walter
Res., Inc. v. FMSHRC , 920 F.2d 738, 748 (11th Cir. 1990).

In a temporary
reinstatement hearing, a judge is tasked with evaluating the evidence of the
Secretary’s case and determining whether the miner’s complaint appears to have
merit. Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC , 31
FMSHRC 1085, 1089 (Oct. 2009). The Secretary must prove only a nonfrivolous
issue of discrimination and need not make a full showing of its prima facie
case of discrimination. Id . at 1088. Nevertheless, it may be “useful to
review the elements of a discrimination claim” when gauging whether a claim is
nonfrivolous. Id . Those elements include (1) that the complainant was
engaged in a protected activity and (2) that the adverse action complained of
was motivated in part by that activity. 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). [1] The Secretary may establish the
motivational nexus between the protected activity and the adverse action with
indirect or circumstantial evidence such as (i) the employer’s knowledge of the
protected activity, (ii) hostility or animus towards the protected activity, (iii)
coincidence in time between the protected activity and the adverse action, and (iv)
disparate treatment of the complainant. Sec’y of Labor on behalf of Chacon
v. Phelps Dodge Corp ., 3 FMSHRC 2508, 2510 (Nov. 1981).

While it is true that a
judge may consider these factors, a temporary reinstatement case remains
“conceptually different” than the underlying case of discrimination. Jim
Walter Res., Inc. v. FMSHRC , 920 F.2d at 744. The Mine Act envisions an
“expedited basis” for a temporary reinstatement proceeding that does not permit
full discovery or complete resolution of conflicting testimony. 30 U.S.C. §
815(c)(2); Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC , 34
FMSHRC 1875, 1879 (Aug. 2012). In fact, Commission case law indicates that resolving
credibility issues or conflicts in testimony is beyond the scope of a temporary
reinstatement hearing. Williamson , 31 FMSHRC at 1089. Similarly, a judge
is not permitted to weigh the operator’s evidence against the Secretary’s
evidence when determining whether to grant temporary reinstatement. Id .
at 1091.

Here, I find that
Saldivar’s complaint of discrimination was not frivolously brought. Saldivar
testified that he made several safety complaints to both his immediate
supervisor and the mine manager from October 2020 until the time he was
terminated in January 2021. These complaints concerned the safety of several
pieces of equipment that Saldivar was obliged to use on a daily basis, as well
as the lack of task-specific training necessary to operate the equipment
safely. Lodging these complaints constitutes a protected activity under section
105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1). Saldivar also testified that
he was fired by Grimes Rock on January 15, 2021, the day after he made a
complaint about the safety of the truck he was told to drive. It is clear that
Saldivar engaged in protected activity and that he suffered an adverse action.

There is also a
sufficient motivational nexus between the protected activity and the adverse
action to support Saldivar’s temporary reinstatement. Saldivar testified that
he made a final safety complaint on January 14, 2021 and that his employment
was terminated the following day. The coincidence in time between the protected
activity and the adverse action is evidence of a discriminatory motive. Sec'y
on behalf of Stahl v. A&K Earth Movers, Inc. , 22 FMSHRC 323, 325 (Mar.
2000). Saldivar also testified that he had continuously made mine management
aware of his safety complaints. The employer’s knowledge of the protected
activity is another factor that may establish a motivational nexus. Chacon ,
3 FMSHRC at 2510. Additionally, Saldivar claimed that his supervisor treated
him badly after he made complaints, and that he was ultimately fired in
response to the number of complaints that he made, suggesting hostility towards
the protected activity. See id . The Respondent, while disputing these
points in its brief, did not introduce a witness to disprove Saldivar’s claims
or offer an alternative reasoning for his termination. [2]  Regardless, it is not necessary
to resolve conflicts between the parties’ accounts at this stage in the
proceedings. Sec'y on behalf of Albu v. Chicopee Coal Company, Inc. , 21
FMSHRC 717, 719 (July 1999). The Secretary has therefore introduced sufficient
evidence to show that Saldivar’s complaint was not frivolously brought. See
29 C.F.R. § 2700.45(d) (“[T]he Secretary may limit his presentation to the
testimony of the complainant.”).

The Respondent argues that it was
denied a full hearing on the issue of temporary reinstatement, relying heavily
on the recent Commission decision in Secretary of Labor on behalf of Cook v.
Rockwell Mining, LLC , 42 FMSHRC __, slip op., No. WEVA 2021-0203 (Apr. 23,
2021). In Rockwell, the Commission determined that a judge must conduct
a “full hearing” during the temporary reinstatement case, and that judges
should admit any relevant evidence that is offered at hearing. Id . In
this case, the Court issued an order that specifically approved two witnesses that
the Respondent wished to call (one of whom was expected to be called to discuss
animus) and repeatedly advised the Respondent at hearing that it was free to
call witnesses to testify on relevant issues, such as the mine’s motivation for
terminating Saldivar. See, e.g. , tr. 53, 81. The Respondent elected not
to call any witnesses. Further, no evidence that the Respondent presented at
hearing was excluded. [3]
There is therefore no indication that the Respondent was denied a full hearing.

The Respondent also contends in its
brief that the exhibits showing disciplinary write-ups are enough to show that
his claim is frivolous. I disagree. For one, the Respondent was asked at
hearing whether the write-ups (Exhibit K) were being used to demonstrate that
his employment was terminated based on those write-ups. The Respondent said no:

Judge Miller: So you
have submitted a number of exhibits that are disciplinary – are write-ups. So
is it your position – your client’s position that Mr. Saldivar was terminated
based – because he received these write-ups? Is that your position?

Mr. Goldenring :
So it wasn’t because he received the write-ups. He was terminated because he
placed himself, others, and equipment at risk and damaged equipment and not for
any animus or motivation about complaints about anything, Your Honor, and he
has . . . no documents to substantiate that.

Tr. 51-52. In any event, Saldivar
disputed what was written in those write-ups, and Grimes Rock presented no
evidence to demonstrate that Saldivar was terminated for damaging equipment or that
a certain number of disciplinary actions results in an employee’s termination
at its mine. The write-ups alone do not constitute proof that Saldivar’s claim
is frivolous.

III.           
ORDER

The application for
temporary reinstatement is hereby GRANTED . Respondent is ORDERED
to, immediately upon receipt of this decision, reinstate Mr. Saldivar to his
former position at the mine effective as of the date of this decision. The
employment of Mr. Saldivar shall be at the same rate of pay and with all benefits,
including any raises, that he received prior to discharge, pending a final
Commission order on the complaint of discrimination.

/s/
Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:
(Electronic Mail and Certified U.S. First Class Mail)

Karla Malagon, U.S. Department of Labor, Office of the
Solicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, [email protected]

Jessica M. Flores, U.S. Department of Labor, Office of the
Solicitor, 350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, [email protected]

Bruce L. Brown, U.S. Department of Labor, Office of the Solicitor,
350 S. Figueroa Street, Suite 370, Los Angeles, CA 90071, [email protected]

Peter Goldenring, Pachowicz & Goldenring PLC, 6050
Seahawk Street, Ventura, CA 93003, [email protected]

Mark R. Pachowicz, Pachowicz & Goldenring PLC, 6050
Seahawk Street, Ventura, CA 93003, [email protected]

Alvaro Saldivar, 1241 Lookout Drive, Oxnard, CA 93035, [email protected]

[1] The Ninth Circuit
recently rejected the Pasula-Robinette framework in Thomas v.
CalPortland Co ., 993 F.3d 1204 (9th Cir. 2021). Specifically, the Court
struck down the requirement that the adverse action was motivated “at least
partially” by the protected activity in favor of a but-for causation standard. Id .
at 1209-11. The Commission has not articulated a new
standard in the wake of Thomas , but the case may require an examination
of elements different than those set forth in current Commission case law. However,
the standard for temporary reinstatement would not be affected. A miner shall
be reinstated if the complaint was not frivolously brought, and the elements of
a discrimination claim are merely “useful” guideposts under that standard. Williamson ,
31 FMSHRC at 1088. Here I look to whether the alleged adverse action occurred “because
[a] miner . . . filed or made a complaint . . . including a complaint notifying
the operator . . . of an alleged danger or safety or health violation in a . .
. mine . . . or because of the exercise by such miner . . . of any other
statutory right afforded by this chapter.” 30 U.S.C. § 815(c)(1). If I were to
use the but-for standard articulated in Thomas, the outcome does not
change here.

[2] The Respondent
did file a list of witnesses to be called at hearing as well as a lengthy list
of exhibits, but chose not to call any witnesses in the end. Instead, the
Respondent filed a “Post Hearing Griefing” ( sic ) that was combative,
inflammatory, and relied solely on Saldivar’s testimony on cross-examination
and on evidence not in the record. 

[3] Respondent did
provide a list of exhibits, some of which were rejected prior to hearing
because they either contained personal identifying information such as social
security numbers, or they included reference to a criminal record of Saldivar
which I deemed prejudicial. In its brief, the Respondent contends, for the
first time, that evidence of Saldivar’s criminal record should have been
admitted under Federal Rule of Evidence 609. This rule allows the use of a
felony record to impeach a witness for his character of truthfulness. The
Federal Rules do not control evidentiary issues in front of the Commission, but
they can be helpful when the policy supporting a rule is relevant. See
Leeco, Inc ., 38 FMSHRC 1634, 1639 (July 2016). However, a rule about attacking
a witness’s truthfulness is inapposite here because credibility is not at issue
in a temporary reinstatement case. Since Respondent indicated that Saldivar was
hired with full knowledge of his criminal background, there was no need to
include such records and the inclusion would have been prejudicial.