Chao v. McDowell, 4:98CV1715ERW.

• Decision Date: 29 January 2002
• Docket Number: No. 4:98CV1715ERW.,4:98CV1715ERW.
• Citation: 198 F.Supp.2d 1093
• Parties: Elaine L. CHAO, Secretary of Labor, U.S. Department of Labor, Petitioner, v. Chester McDOWELL, Virginia Gaddy, and Southwest Quarry & Materials, Inc., Respondents.
• Court: U.S. District Court — Eastern District of Missouri

Page 1093

198 F.Supp.2d 1093

Elaine L. CHAO, Secretary of Labor, U.S. Department of Labor, Petitioner, v. Chester McDOWELL, Virginia Gaddy, and Southwest Quarry & Materials, Inc., Respondents.

No. 4:98CV1715ERW.

United States District Court, E.D. Missouri, Eastern Division.

January 29, 2002.

Edwin B. Brzezinski, Sr., Asst. U.S. Attorney, Joseph M. Landolt, Asst. U.S. Attorney, Office of U.S. Attorney, St. Louis, MO, Edward Falkowski, U.S. Department of Labor, Denver, CO, for plaintiff.

David L. Mills, Emily L. Woodward, Thomas and Birdsong, Rolla, MO, for defendants.

MEMORANDUM AND ORDER

WEBBER, District Judge.

This matter is before the Court on Petitioner Elaine L. Chao, Secretary of Labor, United States Department of Labor's ("Petitioner") Petition for Adjudication of Contempt [doc. # 14]. A hearing was held on this matter on January 25, 2002. Petitioner and Respondent each presented witnesses and arguments during this hearing.

I. STATEMENT OF FACTS.

A. DECEMBER 2001 INCIDENT.

In November 1998 this Court entered a permanent injunction which enjoined the Respondents in the following manner:

. . . defendants, Chester McDowell and Southwest Quarry & Materials, Inc., their agents, servants, and employees, and all persons in active concert and participation with them, are hereby permanently enjoined and restrained:

1. From directly or indirectly denying Mine Safety and Health Administration (MSHA) inspectors entry to, upon, or through their mine (currently known as the Southwest Quarry);

2. From refusing to permit inspection of the mine, or of any equipment located on the mine site;

3. From interfering with, hindering, or delaying such inspectors in carrying out the provisions of the Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 801, et seq.;

4. From threatening—with words, or actions, or both words and actions—any such MSHA inspectors with physical harm.

Judgment of November 24, 1998, at 1-2. The Judgment further provided the following:

1. If, after entry of this judgment, any MSHA inspector encounters a violation of any of the above paragraphs 1-4, then (in addition to any other remedy which may be available under this order or under the Mine Act) such inspector may request the U.S. Marshal's Service to provide a marshal to accompany the inspector during inspection of the mine. Upon receiving such request, the U.S. Marshal's service will provide a marshal to accompany the MSHA inspectors on inspections of the mine until such time as the inspectors reasonably believe that the situation at the mine will not jeopardize their personal safety or interfere with their ability to carry out their duties under the Act. The defendants shall bear all costs involved with regard to the accompaniment of the U.S. Marshals.

2. Whenever any employees or other persons are present at the mine site, a competent person, present at the site, shall be designated by the mine operator to be the person in charge. If Chester McDowell has been designated as the person in charge, and Mr. McDowell is not present at the site, another individual shall be designated as the person in charge in his absence.

Id. at 2.

The following events precipitated the Petitioner's filing of this Petition. Mr. Larry Feeney (a supervisor and a federal mine inspector with the MSHA) and Mr. Michael Davis (acting District Manager of the MSHA for the South-Central District)¹ were assigned to inspect the Southwest Quarry mining operation. It was not normal practice for district managers and supervisors to inspect mining operations in the field; however, the MSHA had determined that supervisors and district managers should spend more time in the field. Mr. Feeney and Mr. Davis were assigned to inspect ten different mining operations, including Southwest Quarry.

On December 11, 2001, Mr. Feeney and Mr. Davis arrived at the Southwest Quarry at 9:40 a.m. At 9:48 a.m., they went into the scale house where Virginia Gaddy² was working. They announced to Ms. Gaddy that they were federal mine inspectors, and Mr. Davis handed her his business card. Mr. Feeney informed her that they were there to perform a regular inspection. Ms. Gaddy informed them that Mr. Chester McDowell, the quarry superintendent, was not present and they could not inspect the mine without him. Larry then asked for Troy Gaddy, who was listed in their records (MSHA form 4000-49A), as a person in charge who could accompany them while they inspected the mines. Ms. Gaddy said that Troy Gaddy was operating the crusher, and could not accompany them on the inspection. Mr. Davis at that point offered to inspect the mine without an employee accompanying them, but Ms. Gaddy stated that Mr. McDowell had forbidden them to inspect the mining operation alone. The inspectors informed Ms. Gaddy that they had a legal right to inspect and they asked her to contact Mr. McDowell immediately. Ms. Gaddy told the two inspectors that they would have to wait until Mr. McDowell arrived, at which point he would accompany them while they did their inspection. Ms. Gaddy told them to wait outside until Mr. McDowell returned from his trip into town.

Mr. Feeney and Mr. Davis went outside and waited for a little while. At 10:06 a.m., they returned to the scale house. When they asked how long before Mr. McDowell would return, she responded that although she had contacted him, she did not know how long he would be. They asked her where he was, and she informed them that he was in town. They informed her at that time that the delay was impeding their inspection, and that they would give her five minutes to allow them to inspect unless she could tell them a reasonable time for Mr. McDowell's arrival. Thereafter they returned to their vehicle. Mr. Davis' affidavit suggests that Ms. Gaddy was upset by this time.

They waited 10:30 a.m. before they returned to the scale house and informed Ms. Gaddy that they needed to do the inspection now or they would have to issue a citation. She refused to allow them to inspect the mine, and Mr. Feeney issued the citation for impeding their inspection. She refused to sign it. Mr. Davis informed her that her signature was not required, and that the citation had a termination time of ten minutes, at which time a noncompliance order would be issued. Ms. Gaddy told the inspectors, for the first time, that Mr. McDowell had been on the quarry property since 10:05 a.m. The inspectors reiterated that they had ten minutes to comply with the citation and that they would be waiting in the car. At that point, they returned to their car.

At 10:50 a.m., Mr. Davis and Mr. Feeney observed Ms. Gaddy leave the scale house, walk across the haul road and hand the citation to a man who had parked his white pickup truck across from the inspectors' car ten minutes previously. The inspectors, who had never seen Mr. McDowell before, had observed this same person drive onto the quarry property at 10:15 a.m. He had driven off a couple of times in different directions while the inspectors were waiting for Mr. McDowell, but had returned to the scale house a few minutes later both times. When Ms. Gaddy handed this person the citation, he became furious and began walking towards the inspectors. As he was walking, he began tearing up the citation. The inspectors at this point assumed that this man was Mr. McDowell. He walked up to the car and went up to the driver's side window where Mr. Feeney was sitting and began cursing at him. When Mr. McDowell finished tearing up the citation, he threw it in Mr. Feeney's face. Mr. Feeney attempted to calm him down at this point, informing Mr. McDowell that they were simply there to perform a regular inspection. Mr. McDowell, however, was not to be deterred, calling Mr. Feeney and MSHA a "bunch of fucking leeches" and telling them to get real jobs. Mr. Feeney reminded Mr. McDowell of the permanent injunction issued by this Court, but Mr. McDowell stated "fuck them" and that he "did not give a shit." He then told the inspectors to get their "asses of the property." When the inspectors attempted to reason with Mr. McDowell again, he told them to "get your fucking ass off my property—now." Mr. Davis, who was sitting in the passenger seat, believed that Mr. Feeney was in danger of being struck by Mr. McDowell because he was so agitated. However, Mr. McDowell left and began walking back to his truck.

Mr. Davis at this time exited the vehicle and introduced himself to Mr. McDowell, offering to shake his hand. Mr. McDowell said he did not "give a fuck" who he was, and said that they "were all a bunch of leeches." Mr. Davis ended his attempt to resolve the situation, and returned to the car.

At this point, Mr. Feeney and Mr. Davis decided to follow procedure and write up a § 104(b) Order, the substance of which indicates that the previously issued citation was disregarded. Mr. Feeney then walked up to Mr. McDowell and handed him the § 104(b) Order and once again requested Mr. McDowell allow them to conduct their inspection and resolve the citation. Mr. McDowell said that the inspection was not going to happen, and told them to "Get the fuck off the property."

Mr. Feeney testified further that he lives in the Rolla area, and that because of Mr. McDowell's actions that day, he remains watchful and cautious because he was aware of mining inspectors who had been beaten within an inch of their lives and he was concerned about Mr. McDowell's behavior.

B. SEPTEMBER 1998 INCIDENT.

The above incident was not Mr. McDowell's first run-in with inspectors from the MSHA. The events which transpired in September 1998, detailed below, ultimately led to this Court's entering the permanent injunction.

In September 1998, a MSHA inspector, Robert D. Seelke, was doing a follow-up inspection of Southwest Quarry. When he arrived at the quarry, he entered the scale house and was directed to see Mr. Troy Gaddy. Mr. Gaddy was supervising the crusher operation. On his way to speak with...