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Whistleblower Cases Explain Process


The chances of “whistleblower protection” reform being passed by Congress this term have diminished significantly (barring a lame duck session passage of HR 5663 and its Senate counterpart. In the meantime, several judges of the Federal Mine Safety & Health Review Commission recently ruled in Section 105(c) whistleblower cases that explain how this process works and what limits there are on relief for complaining miners.

German Alverez v. Chantilly Crushed Stone

In German Alverez v. Chantilly Crushed Stone (ALJ, September 2010), ALJ Moran dismissed Alverez’ claim that he had been retaliated against for reporting a broken seat in a truck to an MSHA inspector. In a strange turn of events, the court never actually got to hear substantive testimony about the miner’s protected activity or the allegedly retaliatory actions taken by the mine operator. In Alverez’ original complaint, he had sought reinstatement to his former position, back pay since the date of his termination, interest on the back pay award, costs and attorney fees, and “any other relief deemed appropriate” by the FMSHRC.

The Complainant was the first witness (as he bears the burden of proof in Section 105(c) proceedings). During his testimony, ALJ Moran asked: “Do you want to go back to work for these people … is that your hope?” The witness responded, “No,” a statement confirmed by Alverez’ attorney. The court then questioned whether this would not end any right to damages at the time he determined he did not want to return to Chantilly to work.

Complainant’s counsel agreed. After confirming with the Complainant (who had a bit of a language barrier) that he truly no longer sought reinstatement, the court then asked him: “You’re gone. You’re not working there. The next day, did you still hope to go back to work for them or did you not want to work for them any more after that?” Alvarez twice repeated “No … I don’t want to work with them.” Hearing this, the ALJ determined that even if Alvarez were to prevail, his damages would be zero, and Complainant’s counsel agreed with this assessment. The Respondent mine operator quickly moved for dismissal, which the court granted.

This was not an unprecedented outcome. In Sonney v. Alamo Cement Co., (ALJ, April 2007), ALJ Feldman faced the same situation and dismissed the complaint after finding that Complainant was not seeing “any tangible relief such as lost pay or reinstatement.” Section 105(c)(3) (which governs pro se complaints that are not prosecuted by MSHA) explains that if relief is appropriate it includes, but is not limited to “rehiring or reinstatement of the miner to his former position, with back pay and interest, or such remedy as may be appropriate.” A case is moot, therefore, if it is impossible for the court to grant an effectual relief to a prevailing party.

The presence of a controversy is measured at the time the court acts, not at the time that the action was commenced. Therefore, even if Alvarez pled that he sought reinstatement when he made his complaint to MSHA, it was no longer a viable claim if he had long-since decided that he did not want to return to the quarry. Had he made the decision not to return later in the process, back pay and interest would still have been available in a limited amount. Because Alverez testified that he decided the day after termination that he did not want to return, the back pay and interest remedies were also unavailable to him (the court did not address the issue of attorney fees and costs, which was unusual, as these remedies might still have been available to him if he had prevailed in demonstrating retaliation).

Secretary of Labor o/b/o Lawrence Pendley v. Highland Mining Company

The next ruling involved a Motion for Prospective Application of Revived Temporary Reinstatement. In Secretary of Labor o/b/o Lawrence Pendley v. Highland Mining Company (ALJ, August 2010), ALJ Barbour was dealing with a remand of a case that had gone up to the US Court of Appeals, 6th Circuit on appeal.

Thereafter, on July 2, 2010, a Commission majority agreed with MSHA that Pendley’s right to temporary reinstatement was revived because the remand by the 6th Circuit divested the case of its “final” nature. Prior to issuance of the FMSHRC’s original ruling, Pendley had a right to temporary reinstatement (TR), and with the return of the case to Commission jurisdiction, that TR right was revived.

The Commission ordered Pendley reinstated immediately, with back pay retroactive to May 28, 2010 (the date of the higher court’s remand mandate), and that TR should continue until the Commission issues a final order upon remand in the discrimination proceeding. Despite the Commission’s ruling, the mine operator moved that the TR should only take effect on July 2, 2010, the date of the FMSHRC ruling remanding the proceedings and ordering TR to resume. Highland argued that it lacked notice of this retroactive interpretation on TR until the FMSHRC ruling in July 2010.

ALJ Barbour ruled against the mine operator, holding that he lacked authority to modify the FMSHRC’s directive that TR should be retroactive to May 28, 2010. Although the Commission had turned jurisdiction over TR to the ALJ, he found that this did not include a de novo setting of the effective date of reinstatement, which was specified in the FMSHRC’s remand order.

Michael R. Lee v. Genesis, Inc.

The third Section 105(c) case, Michael R. Lee v. Genesis, Inc., involved a pro se complainant who claimed that he was terminated from employment for complaints he made regarding health and safety and the company’s Troy Mine. He claimed that the company also denied him his safety bonus and controverted his unemployment benefits claim.

At trial, Genesis admitted that Lee had engaged in protected activity and had suffered an adverse action. However, it claimed that there was no causal connection between the two and that Lee was terminated based on poor performance. ALJ Paez was faced with having to determine whether Lee’s termination was motivated in part by his protected activity, or whether the mine operator would have taken action to terminate the worker based solely on his unprotected (poor performance) activity.

Lee had 25 years of mining experience prior to being hired by Genesis in January 2007. He was quickly promoted in grade twice, and the mine manager testified that he “expected a lot” from Lee because of his prior mining experience. The record also showed multiple examples of Lee raising safety complaints to management, related to poor lighting at the mine, defects on mobile equipment, and lack of safe access in working areas. After the last of these protected acts, Lee was informed that he would not get another promotion that he had requested, because he “needed more experience.” He ultimately got the third promotion a month later.

Thereafter, he documented what he believed was a safety issue (lack of a horn on the regrind mill), but his request to have one installed was denied because it was not required by MSHA and the supervisor did not believe it added any measure of safety.

In January 2008, while assigned to shovel snow off a roof, Lee complained that the ladder furnished to him was “rickety” and that there was no fall protection provided. He also found a document in the trash informing a manager about an unsafe area due to fallen rock. He contacted MSHA’s district manager, and gave a statement concerning the issues, but did not tell anyone at Genesis that he had done so.

In March 2008, he was removed from his assigned position as a “wake up call” to show management “concerns” about his performance. He was given additional training the following month, but also was issued a written warning concerning personal phone calls on company time. By July 2008, his production numbers were down below those of other crews, and he was observed to have trouble with some work techniques. At trial, another manager testified that Lee’s performance was making his crew mates “negative” and that he had been involved in arguments with other crew members, one of which was Lee’s brother. After another incident in July 2008, when he did not immediately respond to a power bump as required, he as told that he was being terminated for poor performance and for spending too much time in the break room.

Section 105(c)(1) prohibits a mine operator from discharging or discriminating against a miner because he has made complaints notifying the operator of an alleged danger or safety and health violation. A prima facie case is established if a preponderance of evidence shows that the miner engaged in protected activity, and that the adverse action was motivated in any part by the protected activity. The mine operator can rebut this case by either showing that there was no protected activity, or that it was motivated by unprotected activities and would have taken the adverse action against the miner in any event based on that unprotected activity alone.

The court considers factors including whether the mine operator had knowledge of the worker’s protected activity, whether there was hostility or animus toward the protected activity, whether there was coincidence in time between the protected activity and the adverse action, and whether there was disparate treatment. If an affirmative defense of business justification is raised (as here), the court’s focus will be on whether a credible justification figured into the motivation and whether the reason was enough to legitimately move an operator to discipline the miner.

ALJ Paez examined these factors, and found that the core issue was whether Genesis would have taken adverse action for unprotected activity alone (since the company did not dispute that protected activity and adverse actions occurred). The company was clearly aware of the miner’s safety complaints, but th­e company continued to promote him after he made initial safety complaints, and he was not subject to written warnings or demotions. Although Lee claimed he had been “blacklisted” in references because Genesis told a prospective employer that he was not eligible for rehire, the judge was not impressed by this and found there was no evidence of hostility or animus.

The last protected activity known to management involved the snowy roof incident, and it was 8 months before Lee was ultimately terminated, leading to the ALJ’s finding that there was no coincidence in time between the protected activity and the adverse action. Little evidence was presented by either side on the issue of disparate treatment.

ALJ Paez also found that Genesis sustained its burden of proving the affirmative defense of business justification, because of the problems documented concerning Lee related to the power bump, excessive breaks, and unauthorized telephone calls. Finally, his low production numbers adversely affected the company financially, making it unlikely that the proffered reasons were pretextual. In the end, Lee was unable to prove his case and his claim was dismissed.