Rock Products - The Leading Voice of the Aggregate Industries.

Discriminating Circumstances


Granite Rock Co. recently won its case, rebutting charges of illegal discrimination under Section 105(c) of the Mine Act by its former employee, Hubert

ADELE ABRAMS

Granite Rock Co. recently won its case, rebutting charges of illegal discrimination under Section 105(c) of the Mine Act by its former employee, Hubert Hoenck. The decision by ALJ Weisberger in Hoenck v. Granite Rock Co. (ALJ Feb. 4, 2008) illustrates the various burdens of proof in this type of litigation, as well as the factors that the Federal Mine Safety & Health Review Commission consider.

WHISTLEBLOWER PROTECTION

Section 105(c), the so-called ìwhistleblower protectionî part of the Mine Act, prohibits discrimination against, or discharge of, a miner who makes a complaint under or related to the Mine Act (ìprotected activityî). This includes complaints made by the miner to the miner operator or its agent, concerning alleged dangers or safety or health violations at a mine, or because of the exercise of other statutory miner's rights. Such rights include speaking to inspectors during inspections, testifying against the mine operator at a hearing and objecting to settlements of citation cases.

In addition to termination of employment, other ìadverse actionsî include demotion, reductions in pay, involuntary transfer and elimination of overtime opportunities. Any miner ó whether salaried or hourly ó is protected from such discrimination. MSHA can impose civil penalties against a mine operator (and against agents of management personally) for violations of Section 105(c).

Under Commission precedent, the complainant in a Section 105(c) action establishes a ìprima facieî case of a violation if he/she proves, by a preponderance of the evidence, (1) that he/she engaged in protected activity; and (2) that the adverse action was motivated in any part by the protected activity. The mine operator must then rebut the prima-facie case by showing either: (1) that no protected activity occurred; or (2) that the adverse action was in no part motivated by the miner's protected activity. In the alternative, if it cannot prove (1) or (2) above, the operator can assert an affirmative defense by proving that it was also motivated by the miner's unprotected activities and would have taken adverse action in any event based on the unprotected activities alone.

CONTINUED COMPLAINTS

In the Granite Rock scenario, the miner had been employed from 1997 to early 2006 as a water truck operator. In September 2003, he complained to a manager ó orally and in writing ó that a rented truck was not safe. In March 2004, he made another complaint about the method used to check air pressure in the truck tires and subsequently complained to yet another agent of management about the mine's failure to follow procedures to block roads when blasting. He made another complaint about failure to check air pressure of truck tires in August 2005, and repeated this to the ìsafety coordinatorî a few months later.

Around the same time, Hoenck suffered a hand injury at work, and in September 2005, the Safety Incident Review Commission issued a report to management about this, indicating that the miner had told ìRay in the shop that he needed the crank installed.î Hoenck also had complained to MSHA, the union and the National Labor Relations Board about ìwhat was happening to him at Granite Rock.î

Based on the above, ALJ Weisberger concluded that Hoenck satisfied the first prong of his prima-facie case: he had demonstrated that he engaged in protected activities under the Mine Act. The next step was to analyze whether ìadverse actionî had occurred that was motivated in any way by his safety-related complaints.

ADVERSE ACTION: WAS IT MALICIOUS?

The trial record reflected that on Oct. 20, 2003, the mine issued a written warning to Hoenck concerning ìattendanceî when he was one hour late, and that he had been 30 minutes late earlier in the year. The written warning threatened suspension and termination if there were ìfuture similar attendance issues.î The company issued a ìfinalî written warning on attendance three days later when the miner did not report to work or call. In May 2004, a supervisor also disciplined Hoenck for not wearing a hardhat and for ìignoringî his supervisor, for which he received a three-day suspension. In January 2006, Hoenck was suspended for one day pending an investigation of an accident involving a truck he was driving, and he was terminated two days later. ALJ Weisberger concluded that Granite Rock took action adverse to the complainant.

Step three of the process required consideration of whether the adverse action was motivated in any part by the miner's protected activities. In making its determination, the Commission scrutinizes whether the mine operator had knowledge of the protected activity, or had hostility or animus toward the protected activity.

ANALYSIS OF DISPARATE TREATMENT

In this case, the court took notice that for the first six years of Hoenck's employment, he suffered no adverse actions; it was only one month after his initial complaint about the unsafe water truck that he received his first written warning. Similarly, two months after complaining about the tire air pressure issue, he received a second disciplinary action (about the hardhat). With regard to the ìdisparate treatmentî criteria, the mine operator's witness testified that two or three other people had been disciplined for attendance problems, and one was terminated. However, no one other than Hoenck had been terminated for the combined reasons of attendance, PPE and the truck incident.

Two of Granite Rock's managers testified they were not aware of Hoenck's safety complaints in September 2003 and in March 2004, when they took actions against him. However, the miner's testimony relative to complaints he had made to other managers was not rebutted by the company. Given the testimony, ALJ Weisberger concluded that there was sufficient evidence of coincidence in time between the safety complaints and the disciplinary action. Hoenck also demonstrated that he was treated in a disparate manner from other employees who had not worn PPE, who had attendance issues and who had accidents with company equipment. Therefore, the burden shifted to the mine operator to demonstrate an affirmative defense.

GRANITE ROCK'S EVIDENCE

When examining the mine operator's ìbusiness justificationî defenses, the Commission considers whether they are so weak, implausible or out of line with normal practice as to constitute ìpretextî that is offered to cloak discriminatory motivation. The analysis requires consideration of whether the offered justification figured into motivation and, if so, whether it would have led to the adverse action apart from the ìprotected activitiesî of the miner. Once a proffered justification survives the ìpretext analysis,î the court will do a ìrestrainedî examination of the explanation, and will not rule based on whether the reason matches the judge's sense of fairness but will simply look at whether the reason was enough to have legitimately moved the operator to have disciplined the miner.

Granite Rock's evidence included explanations that, when the truck safety complaint was initially raised, the miner was sent home because ìthere was nothing else for him to do.î Concerning the ìattendance basedî written warnings, the company admitted that no one else had (in 2003) received two warnings in a three-day period, but it presented evidence that in February 2004, another worker had received a written warning for early departures and performance issues (tardiness in returning from lunch).

The manager also testified that Hoenck was difficult to contact when he was driving his truck, that he did not wear his PPE on a daily basis, and that he had a ìconsistentî tardiness problem. These issues were discussed with him in January 2005. There was documentation in support of that verbal warning. The manager further testified that it was the combined warnings of 2003 and 2004 that led to the three-day suspension in February 2005, and that the miner was warned that any further incidents could lead to possible termination.

The supervisor also testified that in May 2005, he had complained to Hoenck that the roads were too dusty and that Hoenck, in response, overwatered the roads, which caused another miner to have an accident. He further stated that Hoenck had driven into a blast area after being told to avoid that area. This triggered a three-day suspension in September 2005. He pointed to a total of eight warnings received by Hoenck, memorialized in a letter to Hoenck in October 2005.

A copy of this letter had been sent by this supervisor to the quarry manager, who was ultimately responsible for firing Hoenck. The quarry manager testified that Hoenck's accident (which caused the plant to shut down for more than a week while the conveyor he hit was repaired) was a ìsubstantial factorî in the decision, and it was the ìfinal incidentî that caused his termination. He claimed that after several meetings and write-ups, nothing was working. The manager also testified that he did not know that Hoenck had reported safety violations to Granite Rock.

JUDGE RULES IN FAVOR OF OPERATOR

ALJ Weisberger concluded that Granite Rock's proffered reasons for the adverse action were credible, placing more weight on the testimony of the managers regarding their motivations for disciplining the miner over a more than two-year period. He noted that Hoenck did not impeach or contradict the mine operator's evidence concerning the tardiness, PPE use or accident. The asserted business justifications for the actions were ìenough to have legitimately moved that operator to have disciplined the miner.î Therefore, the miner could not be provided any relief under Section 105(c) of the Mine Act.

AUTHOR INFORMATION

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at