Seyfarth Synopsis: The Sixth Circuit recently upheld an administrative decision in favor of a miner's whistleblower complaint, further underscoring the need for mine operators to implement strong anti-retaliation policies and keep detailed supporting records of internal investigations and employment-related decisions.
The Federal Mine Safety and Health Act (Mine Act) was originally enacted in 1977 to promote safe mining operations. Pursuant to Section 105(c) of the Mine Act, miners who believe they were terminated as a result of voicing their health or safety concerns can file a discrimination complaint with the Secretary of Labor. Recently, the Sixth Circuit ruled in Con-Ag, Inc. v. Sec'y of Labor, et al., to uphold a decision stating that Con-Ag violated Section 105(c) when it terminated one of its employees. The Federal Mine Safety and Health Review Commission declined to review the case, making the decision of the Administrative Law Judge (ALJ) the final decision of the Commission. The ALJ found that the employee was discharged in retaliation for reporting health and safety concerns to the Mine Safety and Health Administration (MSHA), the body that enforces the safety and health standards of mining operations.
A miner can establish a case of discrimination by showing that (1) he or she engaged in protected activity and (2) was subject to an adverse employment action that was at least partially motivated by that protected activity. "Protected activity" is defined broadly and includes filing complaints of alleged unsafe conditions to supervisors or the MSHA, refusing to work in unsafe conditions, requesting specific equipment or training, and participating in proceedings related to the Mine Act. Discriminatory behavior encompasses termination and demotion, but can also refer to being transferred to a less desirable position or to a reduction in pay or benefits. As discriminatory motive is difficult to prove using direct evidence, four factors are generally considered when determining whether the adverse employment action was connected to the protected activity: (1) the mine operator's knowledge of the protected activity, (2) the operator's hostility towards that activity, (3) the timing of the adverse action in relation to that activity, and (4) the operator's disparate treatment of the miner.
Con-Ag conceded that the employee engaged in a protected activity when he spoke with MSHA investigators about working conditions in the mine, however it claimed that he was fired for threatening the company's owner/manager during a conversation with a co-worker. Despite lack of direct evidence of hostility towards the employee, the ALJ found the elements of knowledge and timing to be persuasive, thus supporting her broader conclusion that "discrimination was at least one of the causes of [the employee's] discharge."
In response to Mine Act claims, mine operators can establish an affirmative defense by showing either that the adverse employment action was not related to the protected activity or that the action was related, but the company would have taken the same action even if the miner had not engaged in protected activity. The ALJ rejected Con-Ag's defense as implausible and found that its asserted reason for the termination was pretextual, in large part due to the cursory nature of Con-Ag's investigation prior to the employee's discharge. The company never interviewed the employee and there was nothing in the record showing a history of violence, threatening behavior, or discipline whatsoever. The ALJ found that these oversights undermined Con-Ag's argument that it would have fired the employee despite his involvement in protected activity.
In addition to upholding the ALJ's findings, the Circuit Court denied Con-Ag's request for review regarding back pay calculations and the order to reinstate the employee to his prior position. Con-Ag did not submit evidence pertaining to the calculations to the ALJ, but instead first raised its objection to the amount upon appeal, which the Circuit Court ruled unacceptable. With regard to reinstatement, Con-Ag claimed it was unable to comply due to the fact that it no longer owned the mine and that the employee did not wish to be reinstated. The Circuit Court held that Con-Ag failed to present sufficient proof that it no longer owned the mine and that the employee is free to decline the position.
Key Take Aways
In short, this case demonstrates the importance for mine operators to ensure that members of management are familiar with Section 105(c) and to have anti-retaliation policies in place. More specifically, those in management positions should recognize protected activity and be trained to respond appropriately when it arises. Moreover, mine operators should keep complete records of safety-related incidents and complaints in the event an MSHA investigation occurs.
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