<DOC>
[DOCID: f:l95-378.wais]
OLD BEN COAL COMPANY
June 17, 1996
LAKE 95-378-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 17, 1996
LINDA S. SPARKS, : DISCRIMINATION PROCEEDING
Complainant :
:
v. : Docket No. LAKE 95-378-D
: MSHA Case No. VINC CD 95-03
OLD BEN COAL COMPANY, :
Respondent : Central Cleaning Plant Mine
DECISION
Appearances: Linda S. Sparks, Pro se, Steeleville, IL, for the
Complainant; Thomas A. Stock, Esq., Crowell & Moring,
Washington, D.C., and William A. Miller, Esq., Zeiger
Coal Holdling Company, Fairview Heights, IL, for the
Respondent.
Before: Judge Weisberger
Statement of the Case
This case is before me based upon a Complaint filed by Linda S.
Sparks, pursuant to Section 105(c) of the Federal Mine Safety and
Health Act of 1977 (The Act). In the Complaint, Sparks alleges, in
essence, that Old Ben Coal Company (Old Ben) unlawfully discriminated
against her by placing her in its Chronic and Excessive Absenteeism
Program ("C & E program"), in retaliation for her having complained
about the condition of steps leading up to the gob scrapper truck
that she had operated. Old Ben filed an Answer. Old Ben subsequently
moved to amend its Answer, and the motion was granted at the hearing
held on March 12, 1996. [1]
Findings of Fact and Discussion
I. Analysis
The principles governing analysis of a discrimination case under
the Mine Act are well established. A miner establishes a prima facie
case of prohibited discrimination by proving that he engaged in
protected activity and that the adverse action complained of was
motivated in any part by that activity. Secretary on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds, sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
may rebut the prima facie case by showing either that no protected
activity occurred, or that the adverse action was in no part
motivated by protected activity. Pasula, 2 FMSHRC at 2799-2800. If
the operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have taken
the adverse action in any event for the unprotected activity alone.
Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 817-18; see also
Eastern Assoc. Coal Corporation, v. United Castle Coal Co., 813 F.2d
639, 642 (4th Cir. 1987).
A. Protected Activities
Old Ben operates a central cleaning plant located in Randolf County
Illinois, wherein coal from underground mines is cleaned and
processed. Sparks started to work at this plant on May 22, 1977.
Subsequently, on December 27, 1993, she was evaluated by Robert Cash,
the general surface manager, for a position as an operator of a gob
srapper truck ("gob truck"). Sparks, whose height is only about five
feet, had difficulty negotiating the step to access the cab of the gob
truck. The step consisted of a metal bar suspended by a chain from
the truck. According to Sparks, the step was "a good two and a half,
three, four feet" below the platform of the cab. (Tr. 105). Sparks
complained to Cash, and on subsequent occasions, about her difficulty
getting in and out of the cab and asked that an additional step be
provided. Sparks indicated that Cash responded by telling her that
there was no reason why she could not do the job, and she became an
operator of the gob truck. Sparks continued to complain about the
steps to Cash, and to an MSHA inspector, Gene Jewell who worked in
the Sparta, Illinois, MSHA office. Spark testified that subsequent
to December 27, she had to take several days off from work because
of the difficulty getting up and down the cab of the truck.
**FOOTNOTES**
[1]:Old Ben also filed a motion for an order compelling Sparks
to fully comply with a previously issued pre-hearing order. At the
hearing, Old Ben was allowed to interview Sparks' witnesses' whose
identity had not previously been divulged by Sparks.
Accordingly, the motion to comply is moot, and is denied.
Old Ben also had filed a motion in limine. At the hearing, Old
Ben's motion in limine was withdrawn.
Sparks indicated that in the period between 1993 and 1995, she
went to the MSHA office in Sparta to make various safety complaints.
Among the safety complaints she made to MSHA were the following:
(1) In 1994, Sparks' shoes and clothes, which had been left on
the site, became soaked on the 2nd shift when a fire in the area
was extinguished with water. When Sparks reported for work on
the 3rd shift, she was provided with replacement work shoes
that were too large and she was unable to work in them;
(2) The lack of an adequate berm on the gob hill; [2]
(3) the lack of a lock inside the women's shower which had
resulted in a construction worker entering the women's shower
while Sparks was showering[3]; and
(4) that a boss had threatened her life.
**FOOTNOTES**
[2]: According to Sparks she also had communicated this concern
to her supervisor, Larry Seacrest, at a safety meeting at the end of
February 1995.
[3]: According to Sparks, when she reported this incident to
Cash, he laughed, and told her that she should have chased the
intruder out with a broom.
I find that all the above complaints constituted protected
activities.
On January 5, 1995, while descending from the cab of the gob
truck, Sparks fell and injured her right breast and her left wrist.
She described these injuries as being very painful. She subsequently
underwent four surgeries, and was told by her treating physician not
to work. Sparks was off from work for 28 days. I find that all these
actions were within the scope of protected activities.
B. Adverse Action and Motiviation.
On or about February 10, 1995, Old Ben notified Sparks that
she was being placed in step 1 of the C & E program. The notice
advised her that failure to maintain an absentee rate below 9
percent for the next 12 months may result in her being moved
to the next step of the C & E program i.e., a one day suspension
without pay, and that continued cronic and excessive absentism
may result in suspension with intend to discharge. Since placement
in the C & E program could result in loss and pay, I find that
placement in this program constituted an adverse action. It must
next be determined whether there was any nexus between the
engagement of Sparks in protected activity, and her being placed
in the C & E program.
According to Bill Patterson, who was the general manager of
operations at the central cleaning plant in the period at issue, the
C & E program was instituted about 10 years ago. According to the
program, if the rate of an employee's noncontractual absence[4]
exceeds 9 percent, and there have been at least two occurrences
during the previous six months, then an employee is to be placed
in the program and given a written warning. The C & E program
further provides as follows: "If an employee works one year from
the date of his or her last step with an absentee rate below 9
percent, this employee will be removed from the program." (Exhibit
R-3, par. 8).
**FOOTNOTES**
[4]: In essence, non-contractual absence is defined in the C
& E program as absences due to, inter alia, injuries, but that
contractual vacation, and personal and sick leave are excluded.
From December 16, 1993 thru December 29, 1994, Sparks did not
have any absences from work as defined in the C & E program. On
December 30, 1994, Sparks was absent, as defined in the C & E program,
when she attended the funeral of a fellow miner. In addition,
commencing January 5, 1995, she was absent, as defined in the C & E
program, for 28 days. As defined in the C & E Program, this
constituted an absentee rate of 12.75%.
In essence, Sparks alleges that her absence subsequent to January
5, 1995, was not her fault, as it was caused by her injury, which was
in turn was caused by an unsafe step leading up to the gob truck.
Patterson, who was responsible for all actions taken against emplyees
under the C & E program, and Cash, who administered the program relative
to Sparks, indicated that her placement in the program was automatic,
and would have been taken regardless of her safety complaints.
It is not for this forum to decide the propriety or legality of
the C & E program, nor whether it constituted sound management. Nor
is this the proper forum to decide whether there were extenuating
circumstances which, based upon principles of fairness, should have
excluded Sparks from being placed in the C & E program.
There is no evidence that Sparks received any disparate treatment
in being placed in the C & E program based upon her protected
activities. There is no evidence that Sparks had been singled out,
or that other employees with similar absentee rates were excluded
from the program. I find that Sparks had not established that her
placement in the C & E program was not based upon Old Ben's application
of the C & E program criteria to her absentee rate, but rather was
motiviated, in any part, by her protected activities. I find that
Sparks has not established any causal nexus between her protected
activities, and the action taken by Old Ben. For these reasons,
I find that Sparks has failed to establish that she was
discriminated against in violation of Section 105(c) of the Act.
II. ORDER
It is ORDERED that the Complaint be DISMISSED, and that this
case be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution:
Linda S. Sparks, 607 West Chardon, Steeleville, IL 62288 (Certified
Mail)
Thomas A. Stock, Esq., Crowell & Moring, 1001 Pennsylvania Avenue,
N.W., Washington, D.C. 20004-2595 (Certified Mail)
William A. Miller, Esq., Zeigler Coal Holding Company, 50 Jerome
Lane, Fairview Heights, IL 62208 (Certified Mail)
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