Sixth Circuit Denies Review Of Judgment Favoring Former Employee In Retaliation Claim Under The Mine Act

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The Federal Mine Safety and Health Act (Mine Act) was originally enacted in 1977 to promote safe mining operations.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...