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

Plain-English summary

Alvaro Saldivar alleged that Grimes Rock fired him after he complained about unsafe water-truck tires and inadequate equipment training at its sand and gravel mine. Judge Margaret Miller found that both complaints were protected activity and that Saldivar established an initial discrimination case based largely on management's knowledge and the timing of his discipline and termination. Grimes Rock presented evidence of documented performance problems, property damage, workplace conflict, and attendance issues. The judge found that protected activity played a part in the firing, but also found that Grimes Rock would have terminated Saldivar for legitimate performance reasons even without his complaints. Because the Secretary did not prove the protected activity was a but-for cause of the termination, the discrimination complaint was dismissed and temporary economic reinstatement ended.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 815(c)(1) and 825(a)(4)
• Outcome: The discrimination complaint was dismissed, and the related temporary economic reinstatement order was terminated.
• Key point: An initial inference of retaliation did not satisfy the Ninth Circuit's but-for causation standard when credited evidence showed the operator would have fired the miner for performance reasons.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

721 19th St., Suite 443

Denver, CO 80202-2500

Office: (303)
844-5266/Fax: (303) 844-5268

SECRETARY
OF LABOR,                                 :            DISCRIMINATION PROCEEDING

MINE
SAFETY AND HEALTH                        :    

ADMINISTRATION
(MSHA),                          :    

on behalf
of ALVARO SALDIVAR,                  :     Docket No. WEST 2021-0265-DM

Complainant,                    :     MSHA
Case No. WE MD 21-06

:

v.                                                   :

:

GRIMES
ROCK INC,                                          :     Mine: Grimes Rock Inc

Respondent.                      :     Mine
ID: 04-05432

DECISION AND ORDER

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

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

Mark
Pachowicz, Pachowicz & Goldenring PLC, Ventura, California,

for the Respondent

Before:  Judge
Miller

This case is before me
upon a complaint of discrimination filed by the Secretary of Labor
(“Secretary”) on behalf of Alvaro Saldivar against Grimes Rock Inc. (“Respondent”)
under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (“Mine Act” or “Act”). Mr. Saldivar alleges that he was terminated
for making safety complaints that are protected under the Mine Act. Both parties
presented witnesses and evidence at the hearing that took place from January
25-27, 2022 and subsequently briefed the Court on issues of fact and law. For
the reasons outlined below, I find that the Secretary has failed to prove a
violation of section 105(c) of the Mine Act.

I.       FINDINGS OF FACT

The
findings of fact detailed below are based on the record as a whole and my
careful observation of the witnesses during their testimony. My credibility
determinations are based in part on my close observation of the witnesses’
demeanors and vocal intonations. In resolving any conflicts in testimony, I
have taken into consideration the interests of the witnesses, corroboration or
the lack thereof, and consistencies and inconsistencies in each witness's
testimony and among the testimonies of the various witnesses. Any failure to
provide detail on each witness’s testimony should not be deemed a failure to
have fully considered it. The fact that some evidence is not discussed does not
indicate that it was not considered. See Craig v. Apfel , 212 F.3d 433,
436 (8th Cir. 2000).

Grimes Rock operates a
small sand and gravel mine located in Fillmore, California. This surface mine falls
under the jurisdiction of the Mine Act, and its miners are covered by the Act’s
protections. See Jt. Stip. ¶ 1; 30 U.S.C. § 803. Alvaro Saldivar worked
at Grimes Rock during two separate periods of employment. Grimes Rock first
employed Saldivar as a welder in 2019. Jt. Stip. ¶ 7. Then, Grimes Rock
re-hired Saldivar on October 5, 2020, and he continued working at the mine
until he was terminated on January 15, 2021. Jt. Stip. ¶ 6. Saldivar’s second
stint of employment at Grimes Rock is the focus of the present discrimination
proceeding.

Grimes Rock is owned by
Russell Cochran and is managed by Ernesto Melendez, who oversees all operations
at the mine. Melendez made the decision to rehire Saldivar in October 2020,
motivated in part by Saldivar’s high quality of work during his first term of
employment. Tr. 389. Melendez testified that while there was no welder position
available, he recognized the need for consistent servicing of the mine’s mobile
equipment, and he hired Saldivar to fill the role of “lube guy.” Tr. 387.

The parties dispute
certain details about Saldivar’s precise title and role at Grimes Rock during
the second period of his employment—Saldivar claims he was rehired as a “lube
service technician and as an equipment operator” rather than a “lube guy”—but both
sides largely agree as to what his duties were. Tr. 34. Grimes Rock rehired Saldivar
to operate a lube truck that would carry oil and other automotive fluids around
the mine and service its mobile equipment. However, at the time of Saldivar’s
rehiring, the lube truck had not yet been acquired, and so Saldivar was asked
to help with other jobs around the mine. Tr. 36, 388. He was tasked with
operating a water truck to assist with dust control, as well as operating a
motor grader to help flatten and grade the roads at the mine. Tr. 36, 388. Management
also asked Saldivar to service mobile equipment in the absence of the lube
truck. Both sides agree that plant manager Rene Garcia and plant supervisor
Aureliano Ruiz oversaw Saldivar’s work, in addition to Melendez. Jt. Stip. ¶¶ 15,16.

A.     Saldivar’s training at Grimes Rock

Saldivar’s training
upon returning to Grimes Rock began with a text message. On October 5, 2020,
Ernesto Melendez texted Saldivar a link to an MSHA training video. See
Sec’y Ex. 19. Melendez testified that he sent a link to the virtual training
instead of conducting an in-person training because Grimes Rock offices were
closed due to the COVID-19 pandemic. Tr. 391. On October 6, Saldivar signed and
dated a certificate of training indicating that he completed the video
training. Resp. Ex. E. Saldivar signed a similar form confirming additional
training the next day.  Both forms indicate that the type of training received
was “New Miner” training. Resp. Ex. E.

Saldivar began
operating the Peterbilt water truck and motor grader within the first few weeks
of returning to Grimes Rock. He testified that he was asked to operate these
pieces of equipment before he was trained on them. Tr. 36-38. Saldivar said at
hearing that he operated the equipment for one month without training, and that
he requested training for this equipment in his preoperational inspection
forms. Tr. 96, 100. Eventually, Grimes Rock enlisted electrician Vic Lester to
train Saldivar on the water truck and motor grader. Saldivar characterized the
training on the water truck as a “360 walk around” and described the training
on the motor grader as “improper.” Tr. 98, 100. Vic Lester testified that water
truck training involved the two men entering the cab, reviewing the controls,
and then allowing Saldivar to operate the truck while Lester sat in the
passenger seat. Tr. 610. Saldivar disputed this. Tr. 168. Lester also testified
that he trained Saldivar on the motor grader by showing him the equipment,
getting in the cab together, instructing him on how to operate the handles and
levers to control the blade, and reviewing what to watch for while operating
the grader. Tr. 613. Lester’s testimony was corroborated by Melendez and
Garcia, who testified that they witnessed Lester and Saldivar operating the
equipment together. Tr. 396, 401, 465. Ruiz testified that Saldivar told him
that he had been trained by Lester. Tr. 511. No information regarding the
timing of the training is contained in the record.

Within the first few
weeks of returning to Grimes Rock, Saldivar was also asked to begin servicing
mobile equipment at the mine. This task included replenishing the fuel,
checking the fluids, greasing the pinpoints, and performing other routine
service on equipment such as the excavators, bulldozers, front loaders, and a
backhoe at the mine. Tr. 38-39. Saldivar claimed that Grimes Rock only provided
instruction on servicing the mobile equipment after he complained about
the lack of training on his preoperational inspection forms. Tr. 96. Jordan Van
Wie from Quinn Company led a training session that Saldivar described as a “360
walk around” of the equipment and a basic demonstration on how to “check fluids.”
Tr. 96, 101. Van Wie, a certified instructor of equipment maintenance,
testified that he spent two or three hours showing miners the basic service
techniques on four different pieces of equipment. Van Wie did not say if the
training was before or after Saldivar made a complaint. Tr. 676, 679-80.

On occasion, Saldivar
would have to move mobile equipment to the location where the grease and fluids
were kept in order to service the equipment. According to Saldivar, he was
directly ordered to move the equipment in this manner. Tr. 40. Saldivar testified
that he was not trained on how to operate the heavy equipment, such as the
backhoe. Tr. 40. He claimed that he directly requested training on the backhoe
from Melendez and Garcia, but that the only training he received was a “360
walk around” of the equipment. Tr. 95-96. Melendez testified that neither he
nor anyone else at the mine trained Saldivar regarding operation of the backhoe
because Saldivar “was not an operator, there was no need for him to be on a
backhoe.” Tr. 405. According to Melendez, Grimes Rock equipment operators
parked the mobile equipment on flat surfaces and “[t]here is no need to move
any of the equipment” to service it, beyond maybe moving it “four feet.” Tr.
434-35.

B.     Saldivar’s first disciplinary
action

Three weeks after resuming
work at Grimes Rock, Saldivar received his first disciplinary writeup. On
October 27, Rene Garcia issued Saldivar a disciplinary form because the “water
truck again for the third time was found with no coolant and very low on engine
oil.” Sec’y Ex. 2. Saldivar testified that, on that date, he had likely not yet
received the Quinn Company training on equipment maintenance, and that the
training he did receive lacked adequate instruction on how to service the water
truck. Tr. 106.

C.     The water truck tires, incident,
and disciplinary action

Saldivar noticed issues
with the tires of the Peterbilt water truck early in his second stretch of
employment at Grimes Rock. He testified that some tires were “bald,” “cracked,”
and had “wires exposed.” Tr. 43. Saldivar claimed that he verbally reported
these issues to Melendez and Garcia and that he also informed management of the
issues on his preoperational inspection sheets. Tr. 43-45. Melendez denied
being told about balding tires. Tr. 412. Melendez testified that when a miner
reports worn tires on a preoperational inspection form, Melendez will inspect
the tires and make a “business decision” about whether they need to be
replaced. Tr. 429.

On the evening of
December 10, 2020, Saldivar was involved in an incident while driving the
Peterbilt water truck. Saldivar operated the water truck that evening for
dust-control purposes. He sprayed the roadside as he traveled downhill on the
main mine road connecting the plant on top of the hill and the scales below. Saldivar
turned the truck around at the bottom of the hill and returned uphill toward
the plant. Saldivar testified that, as he drove up the steep grade, the truck’s
tires lost traction and the truck started sliding back downhill. Tr. 49. Saldivar
sensed that he had lost control of the vehicle, and he tried to steer the truck
into a nearby row of cinderblocks to stop the truck’s slide. He succeeded, and
the truck collided with the cinderblocks. The collision caused damage to a tire
and a rim on the water truck. See Sec’y Ex. 6. Saldivar immediately
radioed the night manager of the plant, Aureliano Ruiz, and informed him of the
incident. Tr. 54-55. Ruiz told Saldivar to try to drive the truck up the hill
in first gear and park it at the plant so that Ruiz could inspect the damage. Tr.
54-55, 247. Saldivar was able to get the truck to the plant safely in first
gear. Tr. 247.

The next morning,
Saldivar informed Melendez about the incident via text message. See
Sec’y Ex. 5. He detailed how he lost control of the truck and damaged a rim and
a tire. Melendez responded by saying, “You need to be careful we will write you
up on it.” Sec’y Ex. 5. When Saldivar arrived at work the next morning, Rene
Garcia issued him a discipline form for damaging company property. See
Sec’y Ex. 3. Melendez testified that he “investigated” the water truck incident
before authorizing the discipline form, but he and Saldivar agreed in their
testimony that Melendez did not contact or interview Saldivar before the discipline
was issued, apart from the single text message. Tr. 71, 358-59. Later that day,
Melendez hired Pinky’s Tire Service to replace the tire and rim on the water
truck. Both Melendez and the tire technician testified that no tires had been
replaced between October and December 10, that only a single tire was replaced
on December 11, and that the remaining tires were in passable condition. Tr.
425-26, 597.

D.     Subsequent disciplinary actions

After receiving the
writeup about the water truck incident on December 11, Saldivar received his
third disciplinary action the very next day. On December 12, Aureliano Ruiz
issued Saldivar a writeup for arriving to work four hours late. See
Sec’y Ex. 7. Ruiz issued this form on Rene Garcia’s behalf, after Garcia told
Ruiz that Saldivar failed to show up on time. Tr. 502. Ruiz testified that
Saldivar gave no excuse for his tardiness except that “he ran late, that’s it.”
Tr. 505. To Saldivar, the timing of this discipline form was suspicious because
he had been tardy in the past without receiving any admonishment. Tr. 79. Saldivar
admitted that he was late to work about once a week but claimed that he had obtained
permission for these instances. Tr. 176-77. He also testified that he was late
without permission “[m]aybe a couple of times.” Tr. 178. Melendez testified
that Saldivar’s attendance record “wasn’t good.” Tr. 429. Oscar Nava, a former
coworker of Saldivar at Grimes Rock, said that “everybody is late to work” at
the mine. Tr. 316.

On January 13, 2021,
Saldivar noticed that the transmission fill tube on a dozer was missing its
cap, and he reported the missing cap to Garcia and Melendez. Tr. 83; Sec’y Ex.

8. Saldivar was ultimately written up for the missing cap. Sec’y Ex. 8. According
   to Saldivar, he received the writeup in retaliation for reporting the unsafe
   condition. Tr. 84-85. Yet Rene Garcia, who issued the writeup, said both at
   hearing and on the disciplinary form that Saldivar admitted to having left the fill
   tube uncapped after being confronted by the dozer operator. Tr. 472; Sec’y Ex.
9. The dozer operator confirmed this at hearing. Tr. 659. Saldivar denied
   having made any such admission. Tr. 84.

Saldivar’s fifth and
final writeup came the next day. Saldivar testified that he was assigned to
grade the roads on January 14, and he was using the backhoe to collect the
material needed as “base” in order to perform the grading. Tr. 86. When he was
operating the backhoe, one of the tires was flat and appeared to separate from
the rim. Tr. 85; Sec’y Ex. 10. Garcia issued Saldivar a writeup for the damage
incurred to company property when Saldivar was “not paying attention” and
“drove the tire off the wheel” of the backhoe. Sec’y Ex. 9. Garcia testified
that he issued the disciplinary form because Saldivar was not supposed to be
operating the backhoe and could not account for the damage to the tire. Tr.
469.

E.    
Saldivar’s
termination

On January 15, 2021,
Melendez radioed Saldivar to meet him at the scale house, where he informed
Saldivar that he was fired. Tr. 173. Melendez gave Saldivar his final check and
had him sign a termination letter. The letter indicated that Saldivar’s
employment was terminated due to “damaged company property and performance
issues.” Sec’y Ex. 15. Melendez testified at hearing that the factors he
considered in terminating Saldivar included “his attitude, attendance, damaging
the company property, not [being] willing to listen to anybody, [and] thinking
he can do what he pleases at the mine.” Tr. 432-33. Several employees of Grimes
Rock testified that Saldivar’s attitude was an issue at the mine. Tr. 407-19, 660-61,
669.

II.    ANALYSIS

Section 105(c)(1) of the Mine Act
prohibits a mine operator from discharging a miner, discriminating against him,
or interfering with the exercise of his statutory rights “because . . . he has
filed or made a complaint under or related to this chapter, including a
complaint notifying the operator . . . of an alleged danger or safety or health
violation” or “because of the exercise of such miner . . . of any statutory
right afforded by this Act.” 30 U.S.C. § 815(c)(1).  Congress intended for the
protections of section 105(c) “to be construed expansively to ensure that miners
will not be inhibited in any way in exercising any rights afforded” by the Mine
Act. S. Rep. 95-181, at 36 , reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., Legis. History of the Federal
Mine Safety and Health Act of 1977, at 624 (1978).

A.    
The
standard for discrimination

For decades, the Commission and its
courts adjudicated claims of discrimination brought under section 105(c) of the
Mine Act using the Pasula-Robinette framework. Sec’y on behalf of
Robinette v. United Castle Coal Co. , 3 FMSHRC 803, 817-18 (Apr. 1981); Sec’y
on behalf of Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786, 2799-2800
(Oct. 1980). This framework was recently abrogated by the United States Court
of Appeals for the Ninth Circuit. Specifically, the Ninth Circuit found flaw in
the causation aspect of the Pasula-Robinette standard. Now,
discrimination claimants within the Ninth Circuit must prove that unlawful
discrimination was a “but-for” cause of the alleged adverse action. Thomas
v. CalPortland Co. , 993 F.3d 1204, 1210 (9th Cir. 2021). The Ninth Circuit
did not announce how this new standard would interact with the rest of the
Commission’s precedent regarding discrimination claims, and the Commission
itself has not yet had the opportunity to opine on this matter. This Court must
apply a test of discrimination that embeds a but-for causation standard and
that also hews to the Commission’s robust body of discrimination case law. Accordingly,
this Court will adopt the test for discrimination as applied in the matter of
first impression that appeared before the courts of the Commission. See Thomas
v. CalPortland Co ., 43 FMSHRC 531, 538-40 (Dec. 2021) (ALJ). [1]

The test for discrimination under
section 105(c) of the Mine Act is therefore whether the complainant has proven,
by a preponderance of the evidence, an adverse action that would not have been
taken but for his engagement in protected activity.

In the absence of direct evidence
of discrimination, a complainant may assert a prima facie case of
discrimination under the Mine Act by showing that he engaged in protected
activity and that the adverse action complained of was motivated in any part by
that activity. This lower standard is not the ultimate standard of
discrimination , but rather an evidentiary device that allows a miner to
state a claim of discrimination using indirect evidence of discrimination, such
as the operator’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. Sec’y of
Labor on behalf of Johnny Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508, 2510
(Nov. 1981). If the miner successfully states his prima facie case, he has
established a rebuttable presumption of discrimination under the Mine Act.

The mine operator then has an
opportunity to rebut the miner’s prima facie case by producing evidence showing
that no protected activity occurred or that the adverse action was not
motivated by the protected activity. This is merely a burden of production, not
of persuasion. An operator’s failure to produce any legitimate evidence in
rebuttal to the prima facie case would result in a judgment in favor of the
complainant. However, when an operator produces such evidence, the presumption
of discrimination is nullified, and the judge must weigh the conflicting
evidence according to the substantive “but-for” standard. During this final phase,
the complainant must have an opportunity to show that the operator’s
explanation in rebuttal is pretextual. Throughout this entire process, the
burden of persuasion never shifts to the mine operator.

B.    
Saldivar’s
claim of discrimination

Under this newly articulated test,
Alvaro Saldivar must prove that he suffered an adverse action and that the
adverse action would not have been taken but for his protected activity. As an
initial offering, Saldivar must first establish a prima facie case of discrimination.

1. Saldivar’s prima facie case

A prima facie case of
discrimination requires a showing (i) that the complainant engaged in protected
activity, (ii) that he suffered an adverse action, and (iii) that there is a
motivational nexus between the protected activity and the adverse action. See
Driessen v. Nevada Goldfields, Inc. , 20 FMSHRC 324, 328 (Apr. 1998); Pasula ,
2 FMSHRC at 2799. The burden on the complainant is not onerous. He must only
produce “evidence sufficient to support a conclusion” that he was discriminated
against. Driessen , 20 FMSHRC at 328. A miner has proven his prima facie
case when he has “present[ed] evidence from which the trier of fact could infer
retaliation.” Turner v. National Cement Company of California , 33
FMSHRC 1059, 1065 (May 2011).

i.               
Protected
activity

Alvaro Saldivar engaged in at least
two instances of protected activity. First, Saldivar engaged in
protected activity when he lodged safety complaints about the condition of the
tires on the water truck. Saldivar testified that he had issues with the water
truck’s tires from the moment he was rehired. In his opinion, the tires were
“bald” and “cracked” with “wires exposed.” Tr. 41-45. He testified that he
alerted management of the poor tire condition both verbally and on his preoperational
inspection sheets. I find Saldivar’s testimony on this issue to be credible. Melendez
denied that Saldivar made such complaints, but he did acknowledge his policy of
allowing some wear and tear on the tires as part of his “business decision”
regarding whether they need to be replaced. Tr. 429. Also, I find it suspicious
that the mine failed to produce the preoperational inspection sheets when asked
by the Secretary. Since they were not produced as requested, I credit the testimony
of Saldivar that he did list his complaints on those sheets. Safety complaints
like the ones made by Saldivar are quintessential protected activities under section
105(c)(1) of the Mine Act, which expressly protects a miner who makes a “complaint
notifying the operator . . . of an alleged danger or safety or health violation.”
30 U.S.C. § 815(c)(1).

Second, Saldivar’s
complaints to management about inadequate task training also constitute
protected activity under the Mine Act. Saldivar believed that he needed
additional training on several pieces of equipment, and he testified that he
made both verbal and written reports of poor training to Grimes Rock
management. Again, I find Saldivar’s testimony on this point to be credible. While
mine management generally denied that Saldivar made such reports, Melendez did
admit at hearing that Saldivar had told him that he “need[ed] more practice” on
the motor grader. Tr. 400. Proper task training is paramount under the Mine
Act, see 30 U.S.C. § 825(a)(4), and inadequate training constitutes a
major health and safety risk. Id . at § 814 (declaring that an untrained
miner is a “hazard to himself and others.”). Making a report of inadequate
training is therefore equivalent to making a report about unsafe working
conditions, and it is protected activity under section 105(c) of the Act. Cf.
Thomas , 43 FMSHRC at 542. Accordingly, Saldivar has established his
engagement in at least two protected activities.

ii.              
Adverse
action

The Commission
has defined “adverse action” to mean “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). Here, the parties agree that Saldivar was
terminated by Grimes Rock on January 15, 2021. Jt. Stip. ¶ 11. There is
therefore no dispute that Saldivar suffered an adverse action as defined by the
Commission.

iii.            
Motivational nexus

The next relevant inquiry is
whether a motivational nexus exists between Saldivar’s complaints and his
firing. Because “[d]rect evidence of motivation is rarely encountered,” the
Complainant may initially show this motivational nexus with the four
circumstantial indicia of discrimination described by the Commission in its
case law: the operator’s knowledge of the protected activity, the operator’s
hostility, timing, and disparate treatment. Chacon , 3 FMSHRC at 2510.  The
complainant need not establish all four indicators of discrimination, but
rather each factor proven by the miner contributes cumulatively to his case of
discriminatory motive.

In this case, two factors are most
persuasive: knowledge and timing. An operator’s knowledge of protected activity
“is probably the single most important aspect of a circumstantial case.” Chacon ,
3 FMSHRC at 2510. Management at Grimes Rock knew about Saldivar’s safety
complaints. Saldivar testified that he repeatedly made complaints about the
water truck tires and about his inadequate training to Melendez and Garcia,
both verbally and in writing. Additionally, Melendez acknowledged at hearing
that Saldivar had asked for additional practice on the motor grader before he
would feel comfortable operating it. Tr. 400.

Timing is another
factor that weighs in favor of Saldivar. Coincidence in timing between the
protected activity and the alleged adverse action can point toward
discriminatory motive. The Commission has noted that it “applies no hard and
fast criteria in determining coincidence in time” and that “[s]urrounding
factors and circumstances may influence the effect to be given.” Hicks v.
Cobra Mining Inc. , 13 FMSHRC 523, 531 (Apr. 1991). Saldivar testified that
he began making safety complaints within the first few weeks of returning to
work at Grimes Rock on October 5, 2020. Tr. 96. By October 21, Saldivar had
received the first in a series of disciplinary actions. Sec’y Ex. 2. These
actions escalated until Saldivar was terminated on January 15, 2021. Therefore,
at most three months elapsed between the first instances of protected activity
and the adverse action, and disciplinary actions were progressively being
issued during those three months. Under Commission case law, this temporal
proximity can be an indication of discriminatory motive. See Pero v. Cyprus
Plateau Mining Corp ., 22 FMSHRC 1361, 1365 (Dec. 2000) (finding that timing
weighed in favor of complainant when four months elapsed between protected
activity and adverse action).

Knowledge and timing
are the two strongest factors supporting Saldivar’s claim of discriminatory
motive, and these two factors alone can support a prima facie case. See Pero ,
22 FMSHRC at 1365.  But the Secretary has also offered some evidence regarding
the final two factors, hostility and disparate treatment. Saldivar testified at
hearing that Melendez and Garcia acted “malicious” toward him “every time [he]
would complain about something.”  Tr. 211. He viewed the progressive
disciplinary actions as evidence of management’s mounting hostility for him in
response to his complaints. Tr. 211. Furthermore, the Secretary argues that
mine owner Russell Cochran displayed animus toward Saldivar when he called
Saldivar’s subsequent employer, Brett Jones. According to MSHA Special
Investigator Troy VanWey, Jones told VanWey about how Cochran warned him to “be
cautious” because “if [Saldivar] was willing to file [a discrimination]
complaint against [Cochran], he could also file it against Mr. Jones as well.” Tr.

543. Cochran denied ever having such a conversation. Tr. 587. Finally, the
     Secretary also alleges that Saldivar was treated differently than other miners once
     he lodged his complaints. A fellow miner, Oscar Nava, recounted times when he
     was late or when he damaged company property, but he told the Court that he was
     never fired for this conduct.  Tr. 319-21. According to the Secretary, no other
     Grimes Rock employee had been terminated for performance issues in the two
     years prior to Saldivar’s firing, except for an accountant. See Sec’y
     Br. at 16 (citing tr. 379).

The Secretary has introduced
enough circumstantial evidence to support a conclusion or inference of
retaliation. See Turner , 33 FMSHRC at 1065; Driessen , 20
FMSHRC at 328. Accordingly, a successful prima facie case of discrimination has
been shown.

2. Grimes
   Rock’s rebuttal

Grimes Rock now has an
opportunity to rebut Saldivar’s prima facie case by producing evidence
indicating either (i) that no protected activity occurred or (ii) that the
adverse action was not motivated by the protected activity. The company has
offered arguments and evidence addressing both issues.

i.               
Grimes
Rock’s argument that no protected activity occurred

The first argument
advanced as part of the operator’s rebuttal is that Saldivar never engaged in
protected activity. Grimes Rock contends that Saldivar did not complain about
the water truck tires, nor about his inadequate training at the mine.

First, Grimes Rock
denies that Saldivar reported the poor condition of the tires on the Peterbilt
water truck. In its brief, Grimes Rock first points out the absence of
documentary evidence (notes, text message, preoperational inspection forms)
showing that Saldivar ever made such a report. While Saldivar testified that he
had reported the unsafe tires, mine management directly denied this claim at
hearing. Tr. 411. Grimes Rock failed to point out at hearing that the Secretary
repeatedly asked for such documentation, including preoperational reports, and
the mine failed to provide it. Grimes Rock has also introduced pictures and
testimony indicating that at least some of the tires that Saldivar complained
about were in relatively good condition. See Resp. Ex. J; tr. 425-26,

597. This evidence does not nullify Saldivar’s prima facie case, because a
     miner only needs a reasonable, good-faith belief about the existence a safety
     issue to support his protected activity. See Kelly Diede v. Summit
     Inc. , 13 FMSHRC 1155, 1162 (July 1991) (ALJ) (“The fact that there may have
     been no objective underlying safety problem would not invalidate a miner's good
     faith reasonable safety complaint.”).

Second, Grimes Rock
denies that Saldivar ever complained about inadequate training. Again, it
argues that the Secretary has failed to introduce any evidence of the complaints
beyond Saldivar’s own testimony. But once again, Grimes Rock failed to produce
the documents when asked by the Secretary. Furthermore, Grimes Rock argues that
inconsistencies in Saldivar’s testimony about his level of training diminishes
his credibility on this point. Resp. Br. at 3. Finally, the company questions
whether the underlying safety issue (the lack of training) was legitimate,
detailing the variety of training that Saldivar went through while employed at
Grimes Rock. The evidence points to the fact that, while Saldivar received new
miner training and perhaps other training, he did not receive adequate task
training. Grimes Rock produced no evidence of task training records for
Saldivar.

ii.              
Grimes
Rock’s argument that the adverse action was not motivated by the protected
activity

Grimes Rock also argues
that its termination of Saldivar was unrelated to his safety complaints. Instead,
the operator asserts that it fired Saldivar due to his poor work performance,
poor attendance, poor attitude, and the damage he caused to company property. 

First, Grimes Rock
claims that Saldivar’s poor work performance was one reason for his termination.
The company points to Saldivar’s disciplinary actions as evidence of his unacceptable
performance. Management issued the first writeup after Saldivar drove the water
truck with low coolant and engine oil, risking damage to company equipment. The
second writeup was issued in the wake of the water truck incident. Grimes Rock
argues that Saldivar caused the incident by overwatering the road and driving
up the slick road in second gear. See Resp. Br. at 15-16. Rene Garcia issued
two additional writeups: one for leaving the transmission fill tube of the
dozer uncapped, and one for not paying attention while using the backhoe and
causing damage to the tire. To Grimes Rock, these disciplinary forms stand as
documentation of Saldivar’s careless performance on the job.

The alleged performance
issues extend beyond those documented on discipline forms. Rene Garcia
testified that, on several other occasions, Saldivar failed to properly service
the mine’s mobile equipment. Tr. 475. These instances included failures to
replenish hydraulic fluids and to clean the air filters. Tr. 475. This
testimony was supported by equipment operator Mauricio Garcia, who testified
that the fluid levels on his dozer were “either way too low or they were way
over the [proper] amount” after Saldivar had performed the lube service. Tr.
669.  

Second, Grimes Rock
points to Saldivar’s poor attendance as a factor in the decision to terminate
him. Saldivar admitted at hearing that he had been tardy on multiple occasions,
and he was written up for being four hours late to work on December 12, 2020. Tr.
175; Sec’y Ex. 7. When asked about Saldivar’s overall attendance, Melendez said
that “[i]t wasn’t good.” Tr. 429. Saldivar missed days at work due to meetings
with his probation officer, often with Melendez’s permission. Tr. 176-77. According
to mine management, these frequent meetings had become quite disruptive to
Saldivar’s work schedule. Melendez recounted telling Saldivar to have his
probation officer contact Melendez so that he could relay that Saldivar would “end
up losing his job due to attendance” if the meetings continued with the same
frequency. Tr. 430. Melendez also said at hearing that Saldivar’s timecard
revealed further attendance issues that went beyond the excused absences with
his probation officer. Tr. 430.  

Third, the operator cites
Saldivar’s poor attitude as a reason for his firing. Melendez testified that
Saldivar butted heads with other employees. Tr. 409-14. According to Melendez,
Saldivar did not take criticism well and would act more knowledgeable than his
coworkers. Tr. 409-14. Rene Garcia testified that other employees began to ask him
whether anyone else could service their equipment because “they did not want to
deal with Mr. Saldivar.” Tr. 474. Mauricio Garcia told the Court that he
stopped asking Saldivar to correct his mistakes because Saldivar got so
“bothered” if confronted about his errors. Tr. 669. When counseled by
management, Saldivar “would get upset” and ignore the directives given to him. Tr.
410, 474. While the write-ups and the tardiness alone do not support a basis
for terminating Saldivar, the testimony of a number of witnesses regarding
Saldivar’s attitude and inability to get along with other miners is persuasive.

Finally, Grimes Rock
claims that it terminated Saldivar in part due to the damage he caused to
company property. The company asserts that Saldivar’s carelessness resulted in
tire and rim damage on the water truck and the backhoe. Other documented
performance issues, like leaving the transmission fluid uncapped and failing to
replenish fluids on mobile equipment, could have caused further damage,
according to Grimes Rock. Melendez testified that he “hired [Saldivar] to make
sure that we kept our equipment safe and good, and he was actually costing me
more money [with] every [piece of] equipment he would touch.” Tr. 432.

In sum, Grimes Rock has
presented evidence rebutting the existence of the discriminatory motive behind
the adverse action. The Respondent’s burden in making its rebuttal is merely
one of production. Grimes Rock has introduced legitimate evidence that, if
taken as true, would permit a factfinder to conclude that it did not
discriminate against Saldivar. Accordingly, Grimes Rock has satisfied its
burden of production and successfully rebutted the presumption of
discrimination.

3. Disposition

Saldivar established a
prima facie case, and Grimes Rock offered evidence in rebuttal. The rebuttable
presumption of discrimination has dissipated. Now, the only inquiry remaining
in this case is whether the Secretary has shown by a preponderance of the
evidence that Saldivar’s engagement in protected activity was a but-for cause
of his termination.

In his brief, the Secretary argues
that certain aspects of Grimes Rock’s asserted rationales for terminating
Saldivar are illegitimate and pretextual. The opportunity to prove pretext is
an important part of the complainant’s final burden in
employment-discrimination cases. The complainant “must . . . have an
opportunity to prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but were a pretext
for discrimination.” Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S.
248, 253 (1981) (under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (“Title VII”)). [2]
Indeed, “a plaintiff’s prima facie case, combined with sufficient evidence to
find that the employer’s asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully discriminated.” Reeves v.
Sanderson Plumbing Prod., Inc ., 530 U.S. 133, 148 (2000) (under Title VII).

The Commission has explained that
“pretext may be found . . . where the asserted justification is weak,
implausible, or out of line with the operator’s normal business practices.” Sec'y
on behalf of Price v. Jim Walter Res., Inc ., 12 FMSHRC 1521, 1534 (Aug.
1990) (internal citations omitted). In previous cases, the Commission has
outlined the types of evidence that may show pretext: a complainant may
demonstrate “either (1) that the proffered reasons had no basis in fact, (2)
that the proffered reasons did not actually motivate his discharge, or (3) that
they were insufficient to motivate discharge.” Turner , 33 FMSHRC at 1073
(emphasis omitted).

Here, the Secretary offers three showings
of pretext. First, he points to inconsistencies among Melendez’s statements about
his reasons for terminating Saldivar. In the termination letter, Melendez told
Saldivar that he was being fired for “damage [to] company property and
performance issues,” but he did not mention attendance or attitude issues as a
motivating factor. Sec’y Ex. 15. Then, in a later letter to MSHA, Melendez said
“[t]he reason I terminated Alvaro was for damaging company property.” Sec’y Ex.

14. These inconsistencies allegedly shed doubt upon at least two of the operator’s
    stated rationales for firing Saldivar. Second, the Secretary argues that
    Melendez’s readiness to hire Saldivar after his first period of employment and,
    subsequently, to provide a positive reference for Saldivar shows management’s satisfaction
    with Saldivar’s work performance. Third, the Secretary asserts that the
    evidence of disparate treatment, discussed supra , demonstrates that two
    nondiscriminatory rationales are pretextual.

None of the proffered theories of
pretext are compelling. The inconsistencies in Melendez’s statements are minor,
and they do not necessarily show that Melendez was dishonest. Perhaps Melendez
should have been more thorough in his statements but failing to do so does not stand
as evidence of discrimination. Similarly, pretext is not found in Melendez
rehiring Saldivar. Melendez testified that Saldivar is a skilled welder. Rehiring
him based on that performance, or even offering a positive reference based on
his welding [3] ,
is not inconsistent with firing him for poor performance in a different role. Finally,
the alleged disparate treatment does not prove pretext. The Secretary notes that
another Grimes Rock employee, Oscar Nava, also had attendance issues.

Grimes Rock did not fire Nava for those
attendance issues—but Melendez did demote him. Further, Nava was not a
“similarly situated” employee when compared to Saldivar. Nava worked at Grimes
Rock for five years and had been promoted multiple times during that tenure. Saldivar,
in contrast, worked for Grimes Rock for just three months and remained at an
entry-level position. Both parties failed to provide evidence in the record to
demonstrate how Grimes Rock routinely hires or fires employees, and on what basis.
Without such evidence it is difficult to conclude that Saldivar was treated
differently than others. All of the Secretary’s evidence regarding disparate
treatment is unpersuasive because it fails to identify, with any specificity,
true comparators that were treated differently than Saldivar. [4]

The Secretary’s limited showing of
pretext, particularly evidence regarding disparate treatment, cannot support a
finding of discrimination on behalf of Saldivar. The Secretary’s case rests
almost exclusively upon Saldivar’s testimony. While I find Saldivar to be a
credible witness, the record is simply devoid of other testimonial or physical
evidence substantiating Saldivar’s claims. I also find Melendez’s testimony to
be credible. The two men rarely deviated in their recitation of the facts, but
instead disagree on how to interpret those facts. The weight of the evidence in
this case tilts in favor of the interpretation advanced by Melendez and Grimes
Rock.

The mine operator has established a
reasonable nondiscriminatory rationale for firing Saldivar. His performance
issues are well documented in the discipline forms, as well as in testimony
from his coworkers and supervisors. Grimes Rock has introduced photographs and
other documentation showing the property damage incurred by Saldivar, and the
company has also elicited testimony from several mine employees attesting to
Saldivar’s bad attitude at work. As for attendance, Saldivar admitted to a
certain amount of tardiness, and his supervisors all testified to additional
attendance issues. Given the testimony in the record, I
find the attendance issue to be pretextual, thrown into the mix to support the
allegation that Saldivar was terminated due to his performance.  However, the
other bases raised by Grimes Rock may have played a part in the firing. The
record supports a conclusion that Saldivar was fired for legitimate reasons.

By comparison, the Secretary’s case
is limited. In many instances, the Secretary’s claim of discrimination relies
upon uncorroborated witness testimony instead of tangible documentary evidence. [5] For example, there is little, if
any, evidence beyond Saldivar’s own testimony that demonstrates Grimes Rock’s hostility
toward his protected activity.

I accept the Secretary’s view that
Grimes Rock, through its owner, tried to influence Saldivar’s subsequent employer
by relating that Saldivar had filed a discrimination complaint against Grimes Rock
and by warning that he may do the same thing to the new employer. However, that
is not enough to establish animus. The Secretary also characterizes as hostile
the issuance of the five disciplinary writeups, but those disciplinary actions
are more likely attributable to Saldivar’s poor performance at work. The
Respondent has offered documentation and testimony supporting the allegations
put forth in those discipline forms. In contrast, the Secretary offers very
little evidence demonstrating that those writeups are marked by hostility or pretext.

Finally, the Secretary argues that
“Grimes [Rock] should not be able to violate the Mine Act by failing to provide
the required training and then blame Mr. Saldivar” when his inadequate training
led to accidents or property damage. Sec’y Br. at 16. The Secretary’s point is
well taken. The fault for equipment damage should not be laid upon an untrained
miner, and the Secretary alleges that Grimes Rock consistently neglected to
provide its miners with the task training mandated by law. Based on my review
of the record, the Secretary is likely correct. Unfortunately for the
Secretary, that is not enough to negate the evidence supporting the operator’s reasons
for termination. Ultimately, the Secretary has failed to adequately refute the mine’s
legitimate nondiscriminatory rationale for firing Saldivar.

This case is a close call.  I
recognize that the Complainant is at a disadvantage because “it is the employer
who is in the best position to prove what [it] would have done,” Pasula ,
2 FMSHRC at 2800, but the Secretary must still satisfy his burden to show by a
preponderance of the evidence that discrimination was a but-for cause of
Saldivar’s termination. The evidence offered by the Secretary in this case does
not satisfy that burden. I find that Saldivar was terminated for both protected
activity and poor performance; however, the protected activity was not a
but-for cause of his firing.

In conclusion, I find that the
Secretary has demonstrated a prima facie case of discrimination but has failed
to adequately establish that the proffered reasons for terminating Saldivar
were pretext.  The Secretary did not show by a preponderance of the evidence
that Saldivar’s protected activity was a but-for cause of his termination. Instead,
the weight of the evidence suggests that Grimes Rock would have terminated
Saldivar for legitimate reasons even in the absence of his complaints. Therefore,
I find that the Secretary has not met the required burden of proof pursuant to
section 105(c) of the Mine Act. Because the Secretary has not met his burden in
this case, I need not reach the question of remedy.

III.    ORDER

Accordingly, it is ORDERED
that the complaint of discrimination brought by the Secretary of Labor on
behalf of Alvaro Saldivar is hereby DISMISSED . The outstanding motions
filed by the Respondent in this case are summarily DENIED . The Order of
Temporary Economic Reinstatement in the related case is terminated.  

/s/
Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:
(Electronic and Certified 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]

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] At the time of publication, only
one court has had the opportunity to apply the new Ninth Circuit “but-for”
standard after a hearing in a discrimination case. See Thomas ,
43 FMSHRC at 538-40. That decision engaged in a detailed discussion of how
to apply the Ninth Circuit’s standard while preserving Commission precedent and
honoring the intent of the legislators who drafted the Mine Act, who sought to
encourage miners’ free engagement in protected activity. Furthermore, the
decision clarified how burden-shifting and the prima facie case are consistent
with the Ninth Circuit’s holding in Thomas . The test and the
accompanying discussion are adopted here.

[2] The Commission often looks to
other federal anti-retaliation legislation like Title VII when addressing
questions involving the anti-retaliation provision of the Mine Act. See,
e.g., William Metz v. Carmeuse Lime, Inc. , 34 FMSHRC 1820, 1830 (Aug.
2012); Turner 33 FMSHRC at 1065-66.

[3] The evidence
supporting the notion that Melendez gave Saldivar a positive reference is weak.

[4] This includes the Secretary’s
argument regarding the paucity of other miners who were terminated for
performance issues. See Sec’y Br. at 16. Melendez testified that he did
fire an accountant for poor work performance, see tr. 379, and the
Secretary—who bears the burden of proof in this case—failed to identify any
similarly situated employees whose performance issues did not lead to
discipline.

[5] The Secretary argues that it lacks
documentary evidence in part because Grimes Rock withheld preoperational
inspection sheets documenting Saldivar’s complaints. In his brief, the
Secretary asserts that “[a]s a sanction for [Grimes Rock’s] spoliation of highly
relevant evidence, the Court should infer that the missing reports reflected
Mr. Saldivar’s protected activity of complaining about safety issues.” Sec’y
Br. at 21. However, I credited Saldivar’s testimony in that regard, so there is
no need to grant that inference. I accepted it in part due to the operator’s
continued resistance to cooperate in the case and to provide relevant documents
to the Secretary as requested. The mine operator’s behavior throughout the
case, toward the Court and toward the Secretary’s counsel is clearly animus,
but not necessarily against Saldivar.