Maria T. Walker v. Capurro Trucking

Plain-English summary

Maria Walker filed her own Mine Act discrimination case after MSHA declined to prosecute her complaint against former employer Capurro Trucking. She alleged disparate treatment and challenged the company's reasons for terminating her ore-haul truck driver employment. Judge John T. Sullivan reviewed the matters reported to MSHA, including a driver work stoppage over masking and temperature checks, speeding discipline, truck repairs, washing time, and an allegation of altered safety documents. He found no genuine factual dispute showing that Walker had engaged in protected Mine Act activity that could have motivated her discharge. The judge granted Capurro's motion for summary decision and dismissed the complaint without reaching whether any protected activity was the but-for cause of termination.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 2700.42 and 2700.67(a)-(d); 30 U.S.C. §§ 815(c)(1)-(3) and 816(a)(1)
• Outcome: Capurro's motion for summary decision was granted and Walker's discrimination proceeding was dismissed.
• Key point: Disparate treatment alone does not establish Mine Act discrimination without evidence that the miner engaged in protected safety or health activity.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

MARIA T. WALKER,

Petitioner,

v.

CAPURRO
TRUCKING,

Respondent.

DISCRIMINATION
PROCEEDING

Docket No.
WEST 2021-0183

MSHA Case
No. WE-MD-21-20

Mine ID:
26-01089 / F732

Mine:
Goldstrike Mine

DECISION ON RESPONDENT’S

MOTION FOR SUMMARY DECISION

Before:                        Judge
Sullivan

This
discrimination proceeding is before the Commission 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). Respondent Capurro Trucking (“Capurro”), pursuant to
Commission Procedural Rule 67(a)-(c), 29 C.F.R. §2700.67(a)-(c), has filed a Motion
for Summary Decision (“Resp’t Mot.”) on the pro se discrimination complaint
brought against it by its former employee, Complainant Maria T. Walker. Complainant
opposes the Motion for Summary Decision.

I.         
GENERAL
FACTUAL AND PROCEDURAL BACKGROUND

Capurro,
headquartered in Sparks, NV, provides trucking services as a contractor under
the Mine Act from its Carlin, NV Mining Division facilities to nearby mines,
including the Goldstrike Mine of Nevada Gold Mines LLC. Complainant started as
a Capurro ore haul truck driver on November 25, 2019, with approximately three weeks
of training. [1]
She worked as a Capurro Mining Division driver until her termination on September
3, 2020.

According to the
Exit Interview that Complainant attached to her Commission Complaint,
(hereinafter “105(c)(3) Compl.”), Capurro informed the Complainant that she was
being terminated for her “[f]ailure to take direction from supervisors without
constant argument” and “[d]isruption of workforce.” The Exit Interview further
stated that “all communications and directives given from any management or
supervision is a debate or argument” and are “very disruptive and time
consuming.” Id. [2]

Complainant, pursuant
to section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), subsequently filed
a discrimination complaint against Capurro with the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) (hereinafter “MSHA Compl.”). [3] However, by
letter dated March 19, 2021, MSHA notified Complainant that the Secretary of
Labor would not be filing a discrimination complaint on her behalf with the
Commission, because “[b]ased on a review of the information gathered during the
investigation, MSHA does not believe that there is sufficient evidence to
establish, by a preponderance of the evidence, that a violation of Section
105(c) occurred.”

Along the lines
suggested in MSHA’s March 19th letter, and as discussed in further detail below,
Complainant filed her own discrimination complaint with the Commission, dated
April 13, 2021. Capurro timely filed its Answer, and on June 7, 2021, Chief
Administrative Law Judge Glynn F. Voisin assigned me this matter.

On June 15, 2021, I
conducted a conference call with the parties. Among the topics discussed was
the scope of a Commission discrimination proceeding. [4] I granted
Complainant’s request that a hearing not be held in the near term, primarily in
order to permit her to receive and review documents she had requested from MSHA
through the Freedom of Information Act (“FOIA”). [5]
I explained to both parties that it was unrealistic to expect that any of the materials
obtained from MSHA pursuant to a FOIA request would include MSHA’s view on the
merits of the Complainant’s discrimination allegations. However, given the
circumstances and that the request was from a pro se Complainant, I viewed it
as reasonable one and issued a Notice of Hearing and Prehearing Order for
December 2021. See Ribble v. T & M Dev. Co. , 22 FMSHRC 593, 595 (May
2000) (holding that pro se complainant who met Commission’s minimal section
105(c)(3) proceeding pleading requirements be afforded opportunity to prove
discrimination allegations under the Commission’s Procedural rules). [6]

After both parties
conducted discovery, on November 15, 2021, Capurro filed its Motion for Summary
Decision, along with a five-page Statement of Undisputed Facts, two affidavits,
and approximately 600 additional pages of exhibits (“Resp’t Ex.”).

In response, Complainant
filed a one-page opposition to Capurro’s Motion, to which she appended a two-page
“response” to Capurro’s initial Answer. Complainant also submitted 356 pages of
documents she characterized as exhibits (“Walker Ex.”). Many of the documents
were copies of repetitive instances of the same text conversation, and many
documents included Complainant’s undated annotations. Also accompanying the
exhibits was a four-page “Exhibit Form” in which Complainant tersely summarized
the documents and her view of their import. Because the Complainant is pro se,
I have liberally construed Commission Rule 67(d), 29 C.F.R. § 2700.67(d), which
governs the form of opposition to motions for summary decision.

With
the prospect of a hearing that could only be held via Zoom video conferencing, [7] I held a Zoom
session with the parties on December 9, 2021. The purpose of the session was to
explore their respective abilities to conduct a full video conference hearing, as
well as to discuss the issues in the case, including those raised by a
voluminous summary decision record.

At that time,
Complainant requested a continuance to the hearing so that she could continue with
what she represented were ongoing conversations with experienced Mine Act
counsel regarding his serving as her attorney in the case. I granted the
continuance request, indicating that I had not yet decided how I would rule on
the Motion for Summary Decision, but would do so in a written order or decision
before ordering further proceedings in the case, if any. I also suggested that Complainant
respond in good faith to Capurro’s outstanding offer to discuss potential
settlement, informing the parties, as I had before, that the Commission could
assist these discussions by appointing settlement counsel in the case.

A month later, Complainant
has yet to provide a definitive answer on whether she will be retaining the counsel
she referenced at the conference (or any other), and recent indications are she
is not interested in participating in settlement discussions. Consequently, due
process and fairness considerations require that I rule upon Capurro’s Motion
for Summary Decision now.

II.         
SUMMARY
OF APPLICABLE LAW

A.        
Establishing
Discrimination Under the Mine Act

The pertinent
provision of the Mine Act, section 105 (c)(1),
provides that “No person shall discharge or in any manner discriminate against
or cause to be discharged or cause discrimination against or otherwise
interfere with the exercise of the statutory rights of any miner . . . in any
coal or other mine subject to this Act because such miner, . . . has filed or
made a complaint under or related to this Act, including a complaint notifying
the operator or the operator’s agent . . . of an alleged danger or safety or
health violation in a coal or other mine.” 30 U.S.C. § 815(c)(1). In cases such
as this one, that are potentially reviewable by the United States Court of
Appeals for the Ninth Circuit under section 106(a)(1) of the Mine Act, 30
U.S.C. § 816(a)(1), the key term in section 105(c)(1) is “ because .” A discrimination
complainant must show that (1) she engaged in what is known as
“protected activity” (i.e., “the exercise of statutory rights”); and (2) that
the adverse action complained (here the Complainant’s termination) was “ because ”
of that protected activity. In other words, at least in cases ultimately
subject to Ninth Circuit review, a Complainant must show that her employer
would not have taken the adverse action against her “but for” the protected
activity she engaged in. Thomas v. CalPortland Co. , 993 F.3d 1204, 1210
(9th Cir. 2021) (remanding 105(c)(3) case for Commission to apply “but-for
standard”); Docket No. WEST 2018-0402 (Dec. 2, 2020), at 11 (ALJ) (decision on
remand applying but-for standard), pet. for rev. filed Dec. 29, 2021; see
also Sec’y on behalf of Alvaro v. Grimes Rock, Inc. , 43 FMSHRC 299, 302-03
(June 2021).

The question of whether an employer would
not have taken an adverse action “but for” a complainant’s protected activity
is one of motivation. Motivation can be established either directly or
indirectly, through circumstantial evidence. Relevant considerations in
determining motivation are the employer’s knowledge of the protected activity,
its hostility towards the protected activity, the coincidence in time between
the protected activity and the adverse action, and disparate treatment of the complainant.
See Sec’y on behalf of Chacon v. Phelps Dodge Corp. , 3 FMSHRC
2508, 2510 (Nov. 1981)), rev’d on other grounds , 709 F.2d 954 (D.C. Cir.
1983).

B.        
Summary
Decision Standard

Commission
Procedural Rule 67(b) provides that a motion for summary decision shall be
granted only if “the entire record, including the pleadings, depositions,
answers to interrogatories, admissions, and affidavits, shows: (1) [t]hat there
is no genuine issue as to any material fact; and (2) [t]hat the moving party is
entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b). The
Commission analogizes summary decision to Rule 56 of the Federal Rules of Civil
Procedure governing summary judgment. Lakeview Rock Prods., Inc. ,  33
FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The Supreme Court, as the
Commission observes, determined that summary judgment is only appropriate “upon
proper showings of the lack of a genuine, triable issue of material fact.” Id.
at 2987-88 (citing Celotex Corp. v. Catrett , 477 U.S. 317, 327 (1986)).

The Supreme Court
has also held that both the record and “inferences drawn from the underlying
facts” must be viewed in the light most favorable to the party opposing the
motion. Id. at 2988 (quoting Poller v. Columbia Broad. Sys. , 368
U.S. 464, 473 (1962)). However, only such inferences that are “reasonable” may
be drawn. Reeves v. Sanderson Plumbing Prod. , 530 U.S. 133, 150 (2000); Tolan
v. Cotton , 572 U.S. 650, 660 (2014). Consequently, in ruling upon motions
for summary judgment, courts have refused to indulge inferences from
non-movants that are “farfetched or fantastic” ( Int’l Ass’n of Machinists
and Aerospace Workers, AFL-CIO v. Winship Green Nursing Ctr. , 103 F.3d
196, 206 (1st Cir. 1996)), that do not that do not follow rationally from facts
presented to the judge ( Iglesias v. Mutual Life Ins. Co. of New York ,
156 F.3d 237, 240 (1st Cir. 1998)), or that require the court to “accept .
. . sheer speculation as fact.” Robbins v. Becker , 794 F.3d 988, 997
(8th Cir. 2015). In short, a non-moving party “cannot rely on conclusory
allegations, improbable inferences, acrimonious invective, or rank
speculation.” Thompson v. Gold Medal Bakery, Inc ., 989 F.3d 135, 141 (1st
Cir. 2021).

III.         
DISCUSSION
AND ANALYSIS

In its Motion for
Summary Decision, Capurro argues that Complainant has not alleged, much less provided
any evidence, that she engaged in activity protected by the Mine Act. Resp’t Mot.
at 11-13. Capurro maintains that the scope of any discrimination complaint
before the Commission is strictly circumscribed by matters raised in the
initial complaint to MSHA, because only those matters could have been
investigated by that agency. Id. at 16. Capurro further argues that the
evidence it submitted establishes beyond any doubt that Complainant was
terminated for cause, and thus, under the “but for” section 105(c) test for
discrimination, its Motion should be granted. Id. at 13-15.

In opposing the
motion, Complainant argues that Capurro still fails to sufficiently document
why it terminated her. She further contends that Capurro did not address her
section 105(c) complaints and that the “constant absences” of Capurro Mining
Division General Manager David Peck “left unknowledgeable and untrained . . .
managers/supervisors in his stead.”

A.        
The
Permissible Scope of a Section 105(c)(3) Complaint

I first address Capurro’s
arguments on the scope of the section 105(c)(3) complaint that the Commission
can entertain in this case. In Hatfield v. Colquest Energy, Inc. , the
Commission held that the scope of a section 105(c)(3) proceeding is not defined
solely by the original complaint to MSHA but can also include additional matters
that were “reported to” MSHA for investigation. 13 FMSHRC 544, 546 (Apr. 1991).
A section 105(c) proceeding is not strictly circumscribed by the original
complaint to MSHA if, during MSHA’s subsequent investigation, additional
information relevant to the question of whether discrimination occurred is uncovered.
Hopkins Cty. Coal, LLC , 38 FMSHRC 1317, 1322-26 (June 2016) (detailing
MSHA investigatory process in discrimination cases).

The MSHA
investigatory process can hardly be described as transparent when the Secretary
declines to file a discrimination complaint with the Commission. Hence why it
is difficult for a section 105(c)(3) complainant, especially a pro se one, to
establish the actual extent of matters that MSHA investigated. Here, however,
there is no question regarding what matters Complainant “reported to” MSHA
during its investigation, and thus provided the agency the opportunity to
investigate.

That is because Complainant
appended to her Commission Complaint not only the required original
discrimination complaint to MSHA and the Capurro Exit Interview previously
discussed, but also copies of two other documents detailing the information she
provided to MSHA in support of her initial complaint. The first is a six-page
document containing answers the Complainant appears to have provided to various
MSHA questions on October 29, 2020 (hereinafter “Questionnaire”). The second is
a more formal document, the signed “Statement of Maria Walker” that Complainant
gave to MSHA Special Investigator Kyle E. Jackson on November 17, 2020
(hereinafter “Complainant Statement”).

Consequently, in
ruling upon the Motion for Summary Decision, I will review the allegations in the
Complaint to the Commission to the extent that they were reported to MSHA in the
Complaint to MSHA, the Questionnaire, or the Complainant Statement. I will not
address the additional allegations Complainant made to MSHA in the latter two
documents that she did not include in either of her complaints. See
Carmichael v. Jim Walters Res., Inc. , 20 FMSHRC 479, 484 n.9 (May 1998)
(“Whatever its value as evidence, the [section 105(c)(3)] complaint to the
Commission, much like a complaint in a court proceeding, is a basic pleading
that serves to frame the issues to be tried.”). Such review will be conducted
in accordance with the standard for summary decision.

B.        
Whether
the Section 105(c)(3) Complaint Includes Allegations of Protected Activity
Raised in the Complaint to MSHA or the Subsequent Investigation

Much of the Complaint
to the Commission is a compendium of accusations against Capurro, many of which
are quite serious. For instance, as she had to MSHA, Complainant alleges
criminal conduct on the part of Capurro and its agents. Included are allegations
of “fraud” carried out by Capurro’s agents, “payoffs of mine employees,” and
theft from the company. While Complainant identifies those she accuses by name,
most of those names will not be repeated here, given the Complainant’s tendency
to cavalierly allege criminal conduct, not only by individuals within Capurro’s
Mining Division management but outside of it as well. [8] With the
exception of one serious accusation, none of the claims will be addressed in
this decision because, even if true (which the record indicates there is much reason
to doubt), they have nothing to do with workplace safety. Rather they only concern
how Capurro carried out other aspects of its business operations. [9]

The Complainant
maintains that the reason she was terminated was not related to how she carried
out her job duties, but rather because she knew “too much” regarding the
criminal conduct at Capurro. 105(c)(3) Compl. at 1. According to the
Complainant, she posed a risk to the company’s management personnel, in that
she could inform Capurro’s owner in Reno “of all the going-on’s” at the Carlin
location. The Complainant further alleges that because she knew “too much,” she
was treated differently from other drivers by management with respect to enforcement
of company rules. Her ultimate request is that, before the Commission, she be
permitted to “challenge Capurro, in which to produce true and correct
documentation against their falsified and sparse history” of her employment
there. Id. at 2.

At bottom, Complainant’s
case revolves around allegations of disparate treatment of her by management. Of
course, a Mine Act discrimination case based on disparate treatment must
contain some plausible allegation that a miner had engaged in protected
activity and was subsequently treated differently than employees who had not
engaged in protected activity. See, e.g., Pero v. Cyprus Plateau Mining
Corp. , 22 FMSHRC 1361, 1364-67 (Dec. 2000).

Keeping in mind
that Complainant is pro se, I have thoroughly reviewed her Complaint to the
Commission, as supported by her original Complaint to MSHA and the additional
MSHA investigation documents she included, to discern any recognizable allegation
of protected activity under the Mine Act that may have motivated Capurro to
terminate Complainant’s employment. My conclusions are as follows:

1. “Stop work”
   Incident

The closest
mention of protected activity in the Complaint to the Commission is what led to
what Complainant refers as the “stop work” incident. 105(c)(3) Compl. at 2. Capurro
described the incident as a “disruption of [the] work force” and included it as
a reason for Complainant’s termination.

According to the
information Complainant provided to MSHA, on August 3, 2020, she and other drivers
on her shift learned that due to a mine’s Covid-19 concerns, driver compliance
with masking and temperature checks were now conditions of truck entry through the
mine’s gate. MSHA Compl. at 2; see also Walker Ex. WI-6 (L). It is
undisputed that the new requirements were the subject of a driver group text
involving the Complainant, and she and several other drivers subsequently
parked their trucks. [10]

While the Mine Act
grants miners the right to complain of a safety, health, or danger violation,
it does not expressly state that miners have the right to refuse to work under
such circumstances. Nevertheless, both the Commission and the courts have
recognized the right to refuse to work in the face of such perceived danger. See
Dolan v. F & E Erection Co. , 22 FMSHRC 171, 177 (Feb. 2000) (citing Price
v. Montery Coal Co. , 12 FMSHRC 1505, 1514 (Aug. 1990); Sec’y of Labor on
behalf of Cooley v. Ottawa Silica Co. , 6 FMSHRC 516, 520 (Mar. 1984)). To
be considered “protected,” work refusals must be based upon a “good faith,
reasonable belief in a hazardous condition.” Sec’y of Labor on behalf of
Robinette v. United Castle Coal Co. , 3 FMSHRC 803, 812 (Apr. 1981); accord
Gilbert v. FMSHRC , 866 F.2d 1433, 1439 (D.C. Cir. 1989). Consistent with
the requirement that the complainant establish a good faith, reasonable belief
in a hazard, “a miner refusing work should ordinarily communicate, or at least
attempt to communicate, to some representative of the operator his belief in
the safety or health hazard at issue.” Sec’y of Labor on behalf of Dunmire
v. N. Coal Co ., 4 FMSHRC 126, 133 (Feb. 1982).

In this instance,
Complainant has not alleged that the work stoppage arose from concerns regarding
potential adverse health or safety impacts associated with the new mine site
requirements. Rather, she stated that the basis for her and other drivers’ objections
was that the policy was understood to have been newly instituted during that
shift, and that it was contrary to the policy that previously applied to
drivers who would not be exiting their trucks while at the mine. In bringing
her complaint to MSHA regarding this incident, Complainant never alleged that
concern with health or safety impacts prompted her involvement in it. Rather, her
concern was solely regarding how the issue was handled internally by Capurro. See
MSHA Compl. at 2 (“As it turns out, [Capurro’s] acting supervisor was wrong
[about the new mine policy] and the whole incident was a waste of time, energy
and emotion by her lack of due diligence. . . [O]ur Supervisor then got
involved when the issue became too big for our acting supervisor . . . .” [11]

In responding to
Capurro’s Motion, Complainant provides contemporaneous evidence, in the form of
copies of her own texts with General Manager of Mining Division Peck. The texts
further establish that she was not objecting to compliance with the mine’s new
masking and temperature check requirement on safety or health grounds. See Walker
Ex. WI-6 (c) (“I’m trying to work within the rules but don’t [think?] that that
was cool to spring [on] us. Was there not a meeting?”); Walker Ex. WI-6 (h)
(“Did you guys have a meeting on this with the mine? Feels really weird we were
informed on the road like that[.]”).

Thus, there is no
claim by Complainant that any disparate treatment of her with respect to the
August 3rd incident is connected to any activity protected by the Mine Act in
which she alleges to have engaged. Instead, this incident is more in line with what
appears to be her myriad other general complaints regarding how Capurro Mining
Division management carried out day-to-day operations. [12]

Complainant’s
issues with masks extend beyond requirements imposed by the mine, to also
include how Capurro carried out its own masking policy. Again, however,
Complainant’s issue was not that wearing masks posed any sort of health or
safety hazard, either in general or while carrying out her duties. Rather, her
objection was that the policy was inconsistently enforced. Walker Ex. WI-6 (x);
(a-1). Complainant pointed to when she was asked to wear a mask by management while
indoors, and although she proceeded to go outside instead of putting a mask on,
management still requested that she put one on. MSHA Compl. at 2 (“made to put
on a mas[k]outside just so my safety director could see me, ‘Wear one for a few
seconds’”); Walker Ex. WI-6 (t). When describing this incident, the Complainant
provided no indication that this request impacted her medically, but rather
just that she was asked to do so – again, aligning more with a general
grievance.

Moreover,
Complainant’s issues with masks appear to stem from her personal views, as she
states in texts with management, that she is an employee who is against masks. Ex.
WI-6 (o). While Complainant indicated in texts with management that she could
wear a mask while working, she also communicated during the same text exchange
that she and her husband will “stand true to beliefs” and “will not bow to our
generation of sheeples[s]” if they are asked to wear a mask in a situation that
can be “worked around.” Walker Ex. WI-6 (R).

2. Speeding
   Infractions

Complainant also
alleges that Capurro treated her differently than other drivers, including her
own husband, with respect to discipline for violating Capurro’s speeding policies.
105(c)(3) Compl. at 2. As background, in her Complaint to MSHA, Complainant
stated that she “spent many days off for speeding and held accountable as I
accepted my responsibility for my actions. It was later after checking that
others also had speeding infractions but were not given days off and batches
were even thrown in the garbage with no time off.” MSHA Compl. at 2.

Again, Complainant
fails to suggest in either complaint that there was any protected activity in
which she engaged that may have prompted this alleged disparate treatment. At
most, during the MSHA investigation Complainant attributed some of the speeding
infractions she incurred to the lack of a working speedometer in the first truck
she was assigned, Truck 29, and claims that she had earlier alerted Capurro to
that fact. Complainant Statement at 2; Questionnaire at 3, 4. Capurro, in its Motion,
disputes that Complainant had previously notified it as to the condition of the
speedometer. Resp’t Mot. at 12-13. This conflict need not be resolved, however,
because Capurro provided documentary evidence indicating that Complainant was assigned
Truck 29 only during her first month and was soon assigned other trucks to
drive for the remaining eight or so months while she drove for Capurro. Resp’t
Mot., Ex. 10 (timecards) & 12 (truck assignments). Complainant does not
dispute this, nor has she alleged speedometer problems with those other trucks
led to her additional speeding infractions. Cf. Metz v. Carmeuse Lime, Inc. ,
34 FMSHRC 1820, 1825-26 (Aug. 2012) (finding termination of complainant two to
three weeks after his safety-related complaints indicated employer’s
discriminatory motivation); Bradley v. Belva Coal Co. , 4 FMSHRC 982,
983, 992-93 (June 1982) (concluding that termination of complainant the same
day he had engaged in a protected work refusal was indicia of employer’s
discriminatory motivation).

Capurro cited
Complainant 21 more times for speeding instances during that period. While Complainant
took issue with the basis for a few of the later infractions during the MSHA
investigation (Complainant Statement at 4-5), consistent with her earlier
admission that she accepted responsibility for her speeding infraction record,
she does not dispute that she incurred many additional speeding infractions
that she did not challenge at the time. [13]

3. Repair Incident

In her complaint
to MSHA, the Complainant obliquely referred to another incident that occurred
on March 2, 2020—again relatively early in her tenure at Capurro. She described
it as her as having been required to wait for truck repairs at a mine site. MSHA
Compl. at 2. In her statement to MSHA, the Complainant alleged that she “one
time red tagged the truck and they cut it off and put it back in service.” She
subsequently explained, however, that, at that point, the truck had already
been repaired at the mine, which permitted her to return to the Capurro truck
shop. It was there that she proceeded to red tag the repaired truck out of an
admitted fit of pique, stating “I was tired and upset that I was getting told
two different things. So that is when I red tagged the truck and told them they
can figure it out.” Complainant Statement at 3.

When the MSHA Investigator
asked Complainant how her reporting of safety issues led to her termination,
she responded not with specifics but instead simply claimed that she had become
a “pain” on reporting to Capurro issues with trucks and safety procedures not
being followed. Id . at 4. However, text messages between Complainant and
Capurro management, provided by the Complainant herself, include positive management
feedback to Complainant’s safety suggestions. Walker Ex. WI-6 (p), (w).

4. Down
   Time for Necessary Truck Washing

Complainant also
alleges disparate treatment regarding the discipline she received following
instances in which she admitted to taking more time than routinely allotted to
wash her assigned truck. While her Complaint can certainly be read to involve a
safety matter (“when it is wet and the mag on the mine dries in your sensors,
it is like concrete, therefore setting off the ABS”), her claim is not that the
discipline she received was for taking too long to clean her truck to fix the
problem. Rather, the discipline was for her not obtaining the required prior
approval before taking additional time. See MSHA Compl. at 2. Complainant
does not dispute that Capurro contemplated as a matter of policy that
additional truck washing time could be necessary. See Resp’t Ex. 8 at
MSD0110 (noting the Plan for Improvement states “Be in contact with immediate
supervisor to inform them of any washing of trucks going longer than 30
mins.”). Complainant again raises the issue as one in which allegedly
similarly-situated drivers were not disciplined, but also again without
alleging that Capurro’s disparate treatment towards her was due to her exercise
of protected activity. As with the speeding infractions, Capurro documented the
imposition of progressive discipline for not obtaining the required prior
approval, starting with coaching from her supervisor. Id., Ex. 10 at
MSD0551, MSD0574, MSD0533.

5. Falsification of
   Documents

The final
allegation contained in the Complaint to the Commission that bears any
resemblance to a claim that the Complainant engaged in an exercise of protected
activity is her contention that she could prove that Capurro had “falsified
MSHA documents.” Specifically, she stated “[p]lease also be aware that I will
also be filing [an] MSHA Hazard complaint that will contain actual mine safety
documents of falsification by” Capurro’s Mine Division management. 105(c)(3)
Compl. at 1.

Complainant
did not include this falsification allegation in either her Complaint to MSHA
or in her formal November 17, 2020 statement to MSHA Special Investigator
Jackson. However, because it is a serious allegation, I have endeavored to
discern from the documents provided what the Complainant is referring to, in
the context of her relationship with Capurro, during the period of her
employment and afterwards.

The
Complainant’s only mention of “falsification” involving mine safety documents
is in her October 29, 2020 answers to questions from MSHA when she stated she
was not seeking reinstatement because her “safety information had also been
altered and signature forged” by Capurro. Questionnaire at 2. Complainant
clearly did not provide to MSHA during its investigation any support for this
claim, thus her statement to the Commission almost six months later that she
“will be filing” an MSHA Hazard Complaint regarding falsification of mine
safety documents.

Just
as importantly, if not more so, the Complaint to the Commission does not come
close to alleging that Complainant held this belief regarding falsification, in
good faith or otherwise, prior to her termination, and that Capurro had any
knowledge that Complainant held this view. Cf. Pero , 22 FMSHRC at 1364-65
(finding that complainant had engaged in protected activity prior to her
discharge when she had informed superiors that she believed company was
falsifying lost-day information on MSHA 7000-1 forms). Absent any claim by
Complainant that such was the case, her prolonged and mere promise to provide evidence
of falsification, now that she no longer works for the company, does not
qualify as protected activity that could have motivated the company to
terminate her.

Accordingly,
I grant Capurro’s Motion on the ground that there remains no genuine issue of
material fact as to whether Complainant engaged in protected activity as
alleged in her Complaint to the Commission. I thus do not reach Capurro’s
alternative ground for summary decision, which is that it has established as a
matter of law that any protected activity on the part of Complainant was not
the “but for” cause of her termination.

CONCLUSION

For the foregoing
reasons Respondent’s Motion for Summary Decision in this proceeding is GRANTED
and Complainant’s section 105(c)(3) proceeding is DISMISSED .

/s/
John T. Sullivan

John T. Sullivan

Administrative Law
Judge

Distribution:

Maria T. Walker, 115
Selway Rd., Kooskia, ID 83539 ( [email protected] )

Sarah A. Ferguson,
Esq., McDonald Carano, 100 W. Liberty St., 10 th Floor, Reno, NV
89501 ( [email protected] )

[1] Prior to her
employment at Capurro, Complainant had six years of truck driving experience. Questionnaire
at 2. Complainant’s husband, Mr. William Walker, was hired in the same position
by Capurro at approximately the same time. Resp’t Mot. Ex. 1, ¶ 13.

[2] The Exit Interview
cited a specific example of disruption it attributed to the Complainant. According
to Capurro, Complainant had recently, in a group text thread, objected to a
Covid-19 temperature check protocol, which in turn caused “several others to
fear temperature checks and park several pieces of equipment causing hardship
to the employer and the employer[’]s inability to perform customer needs.”

[3] The MSHA
complaint includes (1) a completed MSHA Form 2000-123 titled, “Discrimination
Complaint,” and (2) MSHA Form 2000-124 titled, “Discrimination Report,” a
one-page narrative dated October 13, 2020, describing the basis for the
complaint. While her MSHA Form 2000-123 stated that she would “possibly” seek
temporary reinstatement, Complainant later informed MSHA that she was not interested
in returning to work for Capurro.

[4] The initial
pleadings in this case, along with the initial conversation with the parties,
indicated that not only the pro se Complainant, but also Capurro’s able
counsel, viewed this Commission proceeding as an appeal of the Secretary’s
decision not to pursue the case, rather than the de novo proceeding
contemplated by section 105(c)(3). Such an erroneous impression may have
resulted from the final instruction in the MSHA form letter concerning the
filing of a section 105(c)(3) complaint, which refers to any subsequent Commission
case as an “appeal file.”

[5] MSHA had
indicated that the agency would take approximately three months to fully answer
the FOIA request. During this time Complainant was expecting to complete her planned
relocation to a town in Idaho approximately 500 miles from Carlin.

[6] In the interim,
Commission staff attempted to cure the absence in her section 105(c)(3) Complaint
of the relief that Complainant was seeking. See Commission Procedural
Rule 42, 29 C.F.R. § 2700.42 (“A discrimination complaint shall include . . . a
statement of the relief requested.”). By e-mail dated September 20, 2021,
Complainant responded she was seeking $5,000,000. She also indicated her desire
that the case result in Capurro firing or otherwise disciplining various members
of its Mining Division management.

Complainant was
thereupon informed that such requests far exceeded any remedy conceivably
permitted by section 105(c). See Sec’y on behalf of Rieke v. Akzo Nobel
Salt, Inc. , 19 FMSHRC 1254, 1257-60 (July 1997) (discussing that goal of
Mine Act is to make discriminatees whole). In the absence of a serious response
from Complainant, I am assuming that her statement to MSHA during its
investigation that she was seeking backpay, but not reinstatement, extends to
her case before the Commission.

[7] The Commission
was not holding in-person hearings through 2021 due to the changing
circumstances regarding Covid-19.

[8] In responding to
the Motion for Summary Decision, Complainant included a copy of her letter to
the superior of a Nevada Highway Patrol Commercial Enforcement Officer, in
which she accused the officer of having accepted a bribe from Capurro. Dated
October 19, 2021, the letter appears to have been prompted by information
Complainant would have then recently learned through the discovery process in
this case. See Walker Ex. WV-1(a) & (b).

[9] The section
105(c)(3) Complaint also included absurdly false information. It stated that
“[m]y Exit interview did not even specify what I was being fired for.” As
discussed, the Capurro Exit Interview sheet clearly and succinctly provided the
reasons Capurro gave Complainant for her termination, doing so under the
heading “Reason for Termination.” Complainant not only attached this to her
Complaint to the Commission, but her very first exhibit submitted is a copy of
the Exit Interview (which also indicates that she refused to sign it). Walker
Ex. WI-1.

[10] Contrary to the
section 105(c)(3) Complaint, the Exit Interview does not state that the
Complainant initiated the work stoppage by being the first to park her truck. Rather,
the Exit Interview merely states that after the Complainant stated in the group
text her refusal to comply with the temperature check, several other drivers
also parked their equipment.

[11] The MSHA
Complaint goes on to allude to Complainant having, on more than one occasion,
“issues with ‘Fill-in’ supervisors, as my boss was gone on many personal
trips.” There is no mention of protected activity having prompted any of the
“issues.”

[12] Other documents
submitted by the Complainant in response to Capurro’s Motion indicate that at one
time she feared an adverse impact from the use of the specific temperature
check device being used by the mine. Complainant’s fear, however, had to do
with whether she would be able to subsequently continue with her side avocation
as a “light worker,” not as a driver for Capurro. Walker Ex. WI-6 (C),
WII-3(k),(l)). Complainant’s documents describe a “light worker” as someone who
facilitates “quantum healing hypnosis.” Walker Ex. WV-2 (a)-(h). Even then, as
her own documents show, Capurro Trucking management sent her pictures and
additional information regarding the type of thermometer used for temperature
checks and allowed the Complainant to take a day off, at her request, while
management “figures out particulars.” Walker Ex. WI-6 (g)-(j). This appears to
have alleviated Complainants’ concern, and she did not subsequently raise with
MSHA her concern that the temperature check device would adversely impact her “light
worker” capabilities or that the prospect for its use on her prompted her to
park her truck.

[13] Absent an
allegation of protected activity that prompted the Capurro’s alleged disparate
treatment of the Complainant with respect to speeding infractions, any further
conflicts between the parties’ accounts on this issue need not be resolved. I
note, however, that in its Motion Capurro documented that Complainant was not
the only driver suspended for speeding infractions over the course of her
employment. See Resp’t Mot. at 4 & Ex. 5 (showing documentation of six
other drivers suspended). Complainant herself also provided documentation of
other drivers receiving suspensions after speeding, contradicting her own complaints.
Walker Ex. WI-7 (A)-(B), WI-7 (J), (O), (P), and WI-7 (a) 24, 26 (featuring records
of various other drivers who received one-day and three-day suspensions for
speeding). Capurro’s documents further contradict Complainant’s claim to MSHA
that “[e]very time I was written up for speeding, I was given 3 days off.” Questionnaire
at 3. Of the 22 times Capurro cited the Complainant for speeding, the company’s
records show that only six times was she disciplined, only twice was she
suspended, and only once was she suspended for three days. Resp’t Mot. at 6-7
& Resp’t Ex. 5. Thus, there is evidence in the case that Complainant also
benefitted from any tendency on the part of Capurro to not strictly enforce its
disciplinary policies with respect to speeding infractions.