Donovan on Behalf of Anderson v. Stafford Const. Co., 83-1566
| Decision Date | 20 April 1984 |
| Docket Number | No. 83-1566,83-1566 |
| Citation | 732 F.2d 954 |
| Parties | , 1984-1985 O.S.H.D. ( 26,875 Raymond J. DONOVAN, Secretary of Labor, on Behalf of Patricia ANDERSON, Petitioner, v. STAFFORD CONSTRUCTION COMPANY and Federal Mine Safety & Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Federal Mine Safety & Health Review Commission.
James A. Lastowka, Atty., Federal Mine Safety & Health Review Com'n, Washington, D.C., entered an appearance for respondent, Federal Mine Safety & Health Review Com'n.
Linda L. Leasure, Atty., Dept. of Labor, Washington, D.C., with whom Cynthia L. Attwood, Associate Sol., and Michael A. McCord, Counsel, Dept. of Labor, Washington, D.C., were on the brief, for petitioner.
Before WRIGHT, WILKEY and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
The Secretary of Labor petitions this court for review of a Federal Mine Safety and Health Review Commission ("FMSHRC" or "Commission") decision holding that Stafford Construction Company did not act unlawfully when it discharged Patricia Anderson from her position as bookkeeper-secretary. Because the Commission's holding is premised on a faulty reading of the pertinent statute, and is not supported by substantial evidence, we reverse and remand for the assessment of backpay and penalties.
As we point out below, the matter is reviewable by this court under a "substantial evidence" test. Accordingly, we recite the facts in some detail. Patricia Anderson was hired by Stafford Construction Company ("Company") in June 1978 to work for the Company as a secretary and bookkeeper at the Cotter Uranium Mill located near Canon City, Colorado. On December 20, 1978, two investigators from the federal Mine Safety and Health Administration ("MSHA") arrived at the Cotter Mill jobsite to conduct a safety inspection. The MSHA investigation was apparently conducted in response to previous complaints filed by a heavy equipment operator named Stephen Smith. On December 20, Stephen Smith and his brother Tom (likewise, a heavy equipment operator for the Company) filed a written complaint regarding jobsite safety conditions with the MSHA investigators. The Company fired Stephen Smith on the evening of December 20; Tom Smith was fired on January 5, 1979.
On the evening of January 30, 1979, Patricia Anderson was summoned to a meeting of Company officials in downtown Canon City. The meeting was in preparation for an MSHA investigation into whether Stephen Smith had been discharged in retaliation for instituting safety complaints. When Anderson was asked to tell the investigators that Stephen Smith's discharge resulted from an overall reduction in force, she responded that she could not lie. The Company fired Anderson on February 12, 1979.
The Secretary of Labor subsequently instituted administrative proceedings against the Company, contending that the discharge of Anderson, the Smith brothers, and one other former employee (Donald Hansen) violated section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 ("Mine Act"), 30 U.S.C. Sec. 815(c)(1) (Supp. V 1981). Although the four cases were consolidated for hearing before an ALJ, each case was tried on its individual facts.
In the Anderson case, the Secretary of Labor alleged that the discharge was in retaliation for Anderson's refusal to agree to provide MSHA investigators with a statement that Stephen Smith's discharge was the result of an overall reduction in force. The Company defended by arguing that Anderson was discharged because of her incompetence. The first witness to testify in the case was Patricia Anderson. Anderson explained that her job responsibilities included both general secretarial duties and more specific bookkeeping obligations such as maintenance of the payroll and preparation of termination slips. Anderson further testified that effective bookkeeping was hindered by several structural flaws in the Company's accounting system at the Cotter Mill project, such as inadequate recordation of employee work hours, a Company practice of maintaining some pay records in the Canon City office and some in other offices, and conflicting instructions from Company officials. Despite these hindrances to effective bookkeeping, Anderson testified that she had never received any indication that her work was less than satisfactory. To the contrary, she had received express assurances during the month of January from Harold Stafford (the Company president) that her job was secure. Anderson further testified that, effective January 1, 1979, she had received a pay increase and had become a salaried, rather than an hourly, employee.
As to the events leading up to her discharge, Anderson testified that she was called at home early on the evening of January 30 by Richard Schneider (the Company's safety officer and job superintendent). Schneider asked her to return to the Cotter Mill jobsite in order to assist him in sorting through the termination slips of employees who had been fired as the result of a reduction in force to document that there had indeed been an overall reduction in force at the Company. Anderson testified that her examination of employee records failed to indicate that a reduction in force had occurred.
Shortly after returning home from her meeting with Schneider, Anderson received a call from Company officials summoning her to a meeting at a bank in downtown Canon City. Anderson testified that those present at the meeting included the following Company officials: Harold Stafford, Richard Schneider, Everett Poynter (project manager at the Cotter Mill jobsite), Donald Hansen (assistant project manager), and Mark Jackson (a foreman). According to Anderson, the purpose of this meeting was to instruct her to provide the MSHA investigators with testimony that Stephen Smith was fired as part of an overall reduction in force. Anderson testified that she felt "very intimidated" by the Company officials, who were "all converging on [her]" and telling her what to say to the investigators. Anderson nevertheless informed the Company officials that she would not lie about the reason for Smith's discharge. After further discussion, she was grudgingly told to "[j]ust say whatever you want to."
As it turned out, Anderson was never asked to provide the MSHA investigators with a statement. Nevertheless, Anderson testified before the ALJ, her relationship with Harold Stafford underwent a marked downturn in the days following the January 30 meeting. According to Anderson, Stafford began to scowl at her and would refuse to speak to her. Anderson's relationship with Jacquie Stafford, the Secretary-Treasurer and Stafford's wife, also worsened following the January meeting. On February 12, 1979, less than two weeks after the meeting, Anderson was fired for alleged incompetence.
Margaret Zinser testified that she worked for the Company during October and November of 1978, and that her responsibilities included helping Anderson "with payroll and whatever else needed to be done." Zinser corroborated Anderson's previous testimony regarding the structural flaws in the Company's system of accounting. She stated that she did not "know how Pat ever accomplished what she did" in the face of these obstacles. Zinser further testified that Anderson was "very conscientious" and "was doing a beautiful job."
The final witness put on by the Secretary of Labor was Jeffrey Mueller, a certified public accountant from an independent accounting firm that had been retained by the Company to review its internal control procedures. Mueller testified that his internal control review turned up several flaws in the Company's system of accounting. He nevertheless stated that there was "no question" that Anderson was a capable bookkeeper whose work was "very satisfactory." After Mueller had finished testifying, the Secretary of Labor rested his case.
The first witness called by the Company in rebuttal was safety officer and job superintendent Richard Schneider. Schneider corroborated Anderson's testimony that he had called her back to the Cotter Mill jobsite on the evening of January 30. He testified that he and Anderson then went through Company records in an attempt to document a reduction in force. According to Schneider, Anderson went home after completing the records search approximately one hour later. Schneider testified that he again called Anderson later that evening, and instructed her to come to a meeting of Company officials in downtown Canon City. According to Schneider, Anderson was then asked certain questions about the employee records because she was most familiar with them. In general, Schneider's testimony portrayed the meeting as substantially less coercive than the meeting recounted by Anderson. Schneider also mentioned that Anderson and Everett Poynter (the project manager at the Cotter Mill jobsite) had a personality conflict that existed prior to the January 30 occurrences. According to Schneider, Poynter had previously requested that Harold Stafford fire Anderson.
The next witness was Harold Stafford. Stafford testified that Anderson was summoned to the downtown meeting on January 30 because he believed that her documentation of employee firings was incomplete. According to Stafford, he never instructed Anderson regarding any statements she should give to MSHA investigators. He did, however, instruct Anderson that she should be careful not to answer the investigators' questions unless she fully understood them.
Stafford then provided testimony bearing upon Anderson's performance prior to January 30. In testimony that directly contradicted Jeffrey Mueller's prior testimony, Stafford stated that Mueller had told him that Anderson was incompetent. Stafford also stated that he had previously decided to fire...
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