704 F.2d 275 (6th Cir. 1983), 81-3186, Boich v. Federal Mine Safety and Health Review Com'n

Docket Nº:81-3186.
Citation:704 F.2d 275
Party Name:Wayne BOICH, d/b/a W.B. Coal Company, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, and Richard W. Neal, Jr., Respondents, and Raymond J. Donovan, Secretary of Labor, Intervenor.
Case Date:April 05, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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704 F.2d 275 (6th Cir. 1983)

Wayne BOICH, d/b/a W.B. Coal Company, Petitioner,



Richard W. Neal, Jr., Respondents,


Raymond J. Donovan, Secretary of Labor, Intervenor.

No. 81-3186.

United States Court of Appeals, Sixth Circuit

April 5, 1983

Argued May 27, 1982.

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[Copyrighted Material Omitted]

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R. Henry Moore (argued), Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, Pittsburgh, Pa., for petitioner.

Dennis D. Clark, James A. Lastowka, Federal Mine Safety and Health Review Com'n, Washington, D.C., Thomas A. Mascolino, U.S. Dept. of Labor, Arlington, Va., Morton Hollander, Chief, U.S. Dept. of Justice, Appellate Section, Civil Div., Washington, D.C., for respondents.

Ann S. Rosenthal, Michael A. McCord, U.S. Dept. of Labor, Arlington, Va., for intervenor.

Stanley G. Burech (argued), St. Clairsville, Ohio, for respondent Neal.

Before ENGEL and CONTIE, Circuit Judges, and TAYLOR, District Judge. [*]

ENGEL, Circuit Judge.

This case comes to us on cross-petitions for review and enforcement of an order of the Federal Mine Safety and Health Review Commission ("the Commission") determining that W.B. Coal violated section 105 of the Federal Mine Health and Safety Act of 1977, 30 U.S.C. Sec. 815 (Supp.1981) ("the Mine Act") by discharging an employee, Richard Neal, for answering questions of safety inspectors concerning alleged safety violations committed by the company and himself. The question before this court is whether the Commission applied the proper test in evaluating alleged discriminatory activity where "mixed motives" are involved and whether, under that test, substantial evidence supports the Commission's conclusion that Neal was fired because he engaged in the protected activity of reporting the violations to the Commission.

Neal originally was employed by W.B. Coal as a blaster on May 5, 1978, and he later worked as a driller and bulldozer operator at petitioner's coal mine. On February 16, 1979, the bulldozer to which he was assigned developed mechanical problems, and Neal took it to the equipment parking area for repairs. Finding no mechanics in the area, Neal then took a 631-B pan scraper to the site where he had been working, which was located on rugged terrain and was adjacent to a pit. Although he had little experience operating the equipment, Neal proceeded to haul dirt to the stockpiling area using the scraper. After two or three trips, Neal skidded on some ice located on the road, hit a bank, and slid backwards, flipping over and into a pit. Neal sustained injuries which caused him to be hospitalized for several days. The estimated damage to the machine was approximately $19,000.00. After the accident, Neal climbed out of the scraper and approached foreman Alfred Haverfield, who drove him to the hospital. Neal told Haverfield that he had been operating the machine with the bowl raised and without a seat belt, information which Haverfield asserted he relayed on February 16 to W.B. Coal's superintendent, Richard Lynch. Lynch investigated the accident that day and concluded that Neal was using the scraper without permission as the company required and that he was negligent in operating the scraper with the bowl raised.

Lynch signed a Mine Safety and Health Administration ("MSHA") accident form the following day, February 16, indicating that the accident was caused in part because the scraper bowl was carried too high for safety. 1 On the following Monday,

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Lynch discussed the possibility of firing Neal with Maxwell Sovell, who was then Manager and Vice President as well as Safety Director of the mining company. Sovell agreed that Neal's actions warranted his dismissal, but indicated that the final decision was for Lynch to make. Neal had a good employment record and had never been disciplined.

MSHA inspector Ray Marker learned of the accident on Sunday, February 18. He and regular mine inspector Poe investigated the mine on February 20 and issued two citations: one for failing to report the accident immediately and one for maintaining improper berms along the edge of the roadway.

On Wednesday, February 21, the inspectors spoke with Neal at the hospital. Neal told them that he was not wearing a seat belt and that he believed that the scraper brakes were defective. The inspectors then issued a second citation to W.B. Coal for Neal's failure to wear the seat belt and ordered the company to fix the brakes of the scraper prior to its reuse. Lynch asked the inspectors how they had learned that Neal was not wearing his seat belt and was informed that Neal had so advised them. Lynch then phoned Neal and asked him if he had volunteered this information. Neal answered that he had. Some time after this discussion Lynch decided to fire Neal, claiming that his activities warranted his dismissal. Neal received actual notice of his dismissal upon his return to work on March 19, 1979. The notice listed three reasons: (1) unauthorized use of equipment; (2) unsafe operation of the scraper; and (3) failure to use a seat belt. The company's work rules prohibited all three activities.

Following his dismissal, Neal filed a complaint with the MSHA alleging that he had been discharged for engaging in activities protected under the Mine Act. On November 16, 1979, MSHA informed Neal that it found no violation of the Act and that he had thirty days to file his own action with the Commission. 2 Neal filed his complaint with the Commission on November 23, 1979.

After an extensive hearing, an Administrative Law Judge ("ALJ") determined that W.B. Coal had violated section 105(c) of the Act, 30 U.S.C. Sec. 815(c) (Supp.1981), by firing Neal for the protected activity of reporting the safety violations. He ordered the company to reinstate Neal and provide him with backpay, costs and attorney fees. The Commission declined to review the decision, which therefore became final on March 24, 1981. These cross-petitions followed.

Section 105(c)(1) of the Act, 30 U.S.C. Sec. 815(c)(1) (Supp.1981) provides:

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this chapter because such miner, representative of miners, or applicant for employment has filed or made a complaint under or related to this chapter, including a complaint notifying the operator or the operator's agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine.....

Throughout the proceedings the company took the position that it did not discharge Neal because he gave information to the inspectors, but instead that it had validly terminated him for three reasons: (1) he used equipment without consent of the supervisor or mechanic; (2) he operated the equipment in an unsafe manner by carrying a scraper bowl too high off the ground for safety; and (3) he failed to use the seat belts provided as a safety device on the

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equipment. 3 The ALJ disagreed, holding that under the test of Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980), Neal's rights were violated, and that he was entitled to reinstatement with backpay.

The Pasula test provides:

the complainant has established a prima facie case of a violation of Section 105(c)(1) if a preponderance of the evidence proves (1) that he engaged in a protected activity, and (2) that the adverse action was motivated in any part by the protected activity. On these issues, the complainant must bear the ultimate burden of persuasion. The employer may affirmatively defend, however, by proving by a preponderance of all the evidence that, although part of his motive was unlawful, (1) he was also motivated by the miner's unprotected activities, and (2) that he would have taken adverse action against the miner in any event for the unprotected activities alone. On these issues, the employer must bear the ultimate burden of persuasion. It is not sufficient for the employer to show that the miner deserved to have been fired for engaging in the unprotected activity; if the unprotected conduct did not originally concern the employer enough to have resulted in the same adverse action, we will not consider it. The employer must show that he did in fact consider the employee deserving of discipline for engaging in the unprotected activity alone and that he would have disciplined him in any event.

Secretary of Labor on Behalf of Pasula, 2 FMSHRC at 2799-2800 (emphasis in original). 4 W.B. Coal challenges the language of the test requiring the employer only to be improperly motivated "in any part" and objects to that part of the test which appears to shift to the employer the burden of proving a legitimate reason for the discharge.


The Pasula test is one of many attempts by courts and administrative agencies to determine whether an employer is truly motivated by an improper consideration when there are "mixed motives." This issue arises when an employer punishes employees for engaging in activities protected by the Constitution or by statute, but there also exists a legitimate business reason for his actions. The Pasula test is derived from Mount Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), which considered the proper allocation of the burden of proof in mixed motive cases involving constitutionally protected speech. 5 The Court stated:

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Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a "substantial factor"--or, to put it in other words, that it was a...

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