Violent complainant

An employee complained about a defective seat in his haul truck. His supervisor told him his complaint was “petty.” The employee threw a pen at the supervisor and was immediately discharged. The employee filed a wrongful discharge case with the Federal Mine Safety and Health Review Commission alleging discriminatory discharge due to a safety complaint.

An aggregates producer may go forever without receiving safety complaints from employees. Genuine attention to employee well-being by a mine operator usually keeps employees from aggressively confronting management.

Still, no company is immune because an employee may pursue a case for any alleged retaliatory action by his employer. Some complaints are genuine. Some are not – including disagreements unrelated to safety. The case of the employee who threw a pen after his safety complaint was disparaged is a mixed bag.

The case
In David Stache v. Alvin J. Coleman Son Inc., the supervisor testified that the pen throwing occurred while the supervisor was suspending Stache for not reporting an emergency steering defect on his haul truck. Of particular concern was a citation MSHA wrote for the defect, which Stache should have found and reported.

The complainant claimed he did not have adequate time to do a complete equipment pre-operation inspection because of production needs. The complainant had the pen in hand because his supervisor had asked him to sign his notice of two-day suspension. When the complainant became hostile and threw the pen, the supervisor discharged him.

The complainant testified he was a victim of discrimination. Claiming he was treated unfairly, the complainant cited incidents over the last couple of years in which the company was not responsive to reports he made regarding safety defects on his truck. The supervisor conceded this in part, testifying, for example, that “he pondered installing a new air conditioner for several years instead of immediately installing it on Stache’s request.” Other things, such as a persistent oil leak, were fixed and a mechanic promised Stache his broken seat would be repaired.

The judge’s findings
The judge found there was “no direct evidence that Stache’s termination was motivated by protected activity.” The judge evaluated circumstantial evidence and concluded that the complainant had proved protected activity, including his protests at the time of suspension and his suggestion he might take a case to MSHA. The judge held that the close connection in time between protected activity and discharge is strong circumstantial evidence of discrimination. He said the supervisor “clearly knew of the protected activity, and terminated Stache minutes after he engaged in the protected activity.”

The judge said the company failed to rebut “either by proving there was not protected activity” or show “that Stache’s termination was in no way motivated by his protected safety complaints. In other words, the company failed to show “that Stache’s protected complaints did not have any impact on termination.”

Citing the law regarding dual motives, the judge said “the company can still avoid liability by proving that while the supervisor might have been motivated in part by protected activity, “Stache would have been terminated for his unprotected misconduct alone (i.e., in the absence of the protected activity).”

The supervisor testified Stache was terminated for physically intimidating the supervisor by throwing a pen at his face. The supervisor said the pen was a projectile and could have hurt one of his eyes.

To show it had not singled out Stache for discipline, the company showed five instances in which it had suspended other employees in the past. Distinguishing the much more serious misconduct in the Stache case, the judge noted that none of the prior disciplinary actions involved “extreme insubordination or extreme intimidation.”

Decision
Weighing all the factors, the court found “Stache’s misconduct was substantial enough, by itself, to credibly motivate his termination.” However, the judge had to consider one further aspect of the case: Stache’s claim that the supervisor provoked his conduct. The judge cited a case holding: “an employer cannot provoke an employee into an indiscretion and then rely on that indiscretion as grounds for discipline.”

The judge found fault with the supervisor’s characterization of Stache’s broken seat complaint as “petty.” He found this was wrongful conduct by the supervisor “that directly provoked Stache into committing the misconduct for which he was terminated.” But this did not end the inquiry.

Quoting from a U.S. Court of Appeals decision, the judge stated: “[An] employee is not free to engage in wanton conduct following an unlawful discharge and then hide behind the [act’s] protections.” Pen throwing was blatant misconduct. In the judge’s words, “[The] court cannot condone employee conduct that could have resulted in lasting harm to his supervisor.”

Take Note
Employees cannot engage in misconduct following an unlawful discharge and then hide behind their misconduct.

Legal editor Michael T. Heenan is an attorney at Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation’s largest labor and safety law firms. He can be reached at michael.heenan@odnss.com.