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Con-Ag, Inc. v. Secretary of Labor

United States Court of Appeals, Sixth Circuit

July 26, 2018

Con-Ag, Inc., Petitioner,
Secretary of Labor; Mine Safety and Health Administration; Federal Mine Safety and Health Review Commission; Larry Groves, Respondents.

          On Petition for Review from the Federal Mine Safety and Health Review Commission; No. LAKE 2017-0117-DM.

          William R. Creedon, SCOTT SCRIVEN LLP, Columbus, Ohio, for Petitioner.

          Ali A. Beydoun, Edward Waldman, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondent Secretary of Labor.

          Before: GILMAN, GIBBONS, and THAPAR, Circuit Judges.


          RONALD LEE GILMAN, Circuit Judge.

         Con-Ag, Inc. petitions for review of a decision by the Federal Mine Safety and Health Review Commission (the Commission) finding that Con-Ag violated § 105(c) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. § 815(c), by terminating Larry Groves's employment in retaliation for his reporting safety concerns to the Mine Safety and Health Administration (MSHA), which enforces health and safety standards at the nation's mines. For the reasons set forth below, we DENY Con-Ag's petition for review.

         I. BACKGROUND

         A. Factual background

         Groves began working for Con-Ag in September 2015 at its surface limestone mine in St. Marys, Ohio. He was fired by Con-Ag's owner and manager, John Hirschfeld, in August 2016. A review of the circumstances of Groves's employment and termination is necessary to determine whether substantial evidence supports the Commission's conclusion that the termination constituted unlawful retaliation under the Act.

         Hirschfeld hired Groves on the recommendation of Groves's friend, Wesley Mann, who also worked for Con-Ag. Groves was in charge of running the heavy equipment, including excavators and front-end loaders, as well as doing some maintenance work. He usually worked the first shift, with only six or seven other employees, under the supervision of plant foreman Brian Henning. When Henning was absent, Hirschfeld took over his duties.

         Groves testified that he got along well with both his coworkers and with foreman Henning, and that before his termination he had had no problems with Hirschfeld. Hirschfeld testified at the hearing before the Administrative Law Judge (ALJ) that Groves was a "middle of the road" employee who worked hard but was not a problem solver. There is nothing in the record to show that Groves was ever disciplined for any reason while employed by Con-Ag, and Hirschfeld agreed that there were no problems with Groves's job performance or attendance beyond that Groves often left for lunch. Groves rarely worked with his friend Mann, who was generally on the night shift at various other Con-Ag locations, but the two would socialize together once or twice a week at Groves's home.

         During his employment, Groves made multiple safety-related complaints to MSHA, both over the phone and in writing. The first written complaint occurred on May 24, 2016 during a routine spot inspection of the mine. MSHA Inspector Joshua Grimes observed Groves excavating loose material from a highwall. (A "highwall," as the Secretary of Labor explains in his brief, is the "unexcavated face of exposed overburden and coal or ore in an opencast mine, or the face or bank on the uphill side of a contour strip mine excavation.") Inspector Grimes asked Groves who had instructed him to engage in this task, and to put his explanation of the event in writing. According to the signed letter that Groves submitted in response, Henning had originally asked Groves to position the excavator a safe distance from the highwall while removing the material. But Hirschfeld, who was working nearby, asked Groves to work closer to the wall. Groves felt that this was unsafe because some of the material was bigger than his excavator, and he was worried that the material would fall on him.

         Con-Ag subsequently received a citation from MSHA, setting out the condition of the wall and loose material and the position of the excavator. MSHA explained that

[t]his hazard exposed the miners to the falling material that could result in serious or fatal injuries. The mine owner/operator was working in the area and was aware of the condition and instructed miners to work at the base of the highwall. The owner/operator engaged in aggravated conduct constituting more than ordinary negligence. This violation is an unwarrantable failure to comply with a mandatory standard.

         In accordance with confidentiality policies, Groves was not identified by name in the complaint, but he testified that both Henning and Hirschfeld saw him talking to Inspector Grimes. Hirschfeld did not dispute this contention, but added that all of his employees spoke with MSHA inspectors when the latter were onsite.

         In July 2016, Groves provided MSHA with two more written complaints. The first letter was dated July 19, and it was typed by the inspector and signed by Groves. It stated that, on several occasions over the preceding few weeks, Groves had seen another employee climb into a primary crusher without first shutting it down, despite Groves explaining to the employee that this was very dangerous. The letter also asserted that the #27 cement truck, which had been involved in a roll-over accident on July 7, was used two or three times per week at the mine prior to the accident. According to Groves's testimony, the truck should not have been in use at the time because it was known to have brake problems. A second, undated letter from Groves contained substantially the same information as the first.

          Groves was in contact with MSHA again on August 5, 2016, when he met offsite with MSHA Investigator Jason Dibble. The two discussed safety issues at the mine. Because the hour-and-a-half meeting exceeded his 30-minute lunch break, Groves told Henning about the meeting upon his return to work. Groves did not inform Hirschfeld about the meeting.

         In addition to these specific incidents, Groves made a number of phone calls to MSHA representatives to report or discuss various safety issues at the mine. Groves also met with many, if not all, of the MSHA representatives who inspected the mine during Groves's employment. He testified that Hirschfeld saw him do this. Groves made similar oral complaints about safety issues to both Henning and Hirschfeld, but Hirschfeld did not believe that any of Groves's concerns were valid. When Groves made safety complaints to Henning, Henning's practice was to relate them to Hirschfeld.

         On August 9, 2016, the night before Groves was fired, an incident occurred between Groves and Mann at Groves's home. Groves and Mann provided conflicting testimony regarding this incident, but after hearing their testimony and that of a neighbor, the ALJ ultimately credited Groves's version.

         According to Groves, he and his wife were out on their porch when Mann came by on the evening of August 9. Groves's wife went inside shortly after Mann arrived, and the two men were joined on the porch by Groves's neighbor, Trey Huber. They had a few beers and discussed work. An argument then ensued between Groves and Mann over safety at the mine. Groves testified that Mann "flipped out," and Groves asked him to leave. He further testified that Mann threatened him, rather than the other way around. Huber corroborated Groves's contention that Mann was the aggressor, explaining that the two discussed work and MSHA, and the discussion escalated into an argument over who could run a piece of equipment better. According to Huber, Mann "got mad and started saying that he was going to harm Mr. Groves. And Mr. Groves asked [Mann] to leave, and [Mann] went and got in his car the whole time screaming and yelling, 'I'm going to whoop your butt.'" According to Huber, Groves never threatened Mann.

          Mann, like Huber, testified that he and Groves argued over who could operate a piece of equipment better. But from there the two men's testimony departed, with Mann saying that Groves became angry and began threatening to beat up and kill him. Mann testified that he did not retaliate, but left immediately because he felt that his safety was being threatened.

         On his way home, Mann pulled over and called the police to report that Groves had threatened to beat him up. A dispatch log report from the St. Marys Police Department reflects that Mann reported the threat, but Mann declined to come into the station and file a report. Mann then drove the rest of the way to his home and, once there, called the general phone line at Con-Ag, leaving the following message for Hirschfeld:

Hello. Uh, this message is for John [Hirschfeld]. Uh, this is Wesley Mann. Umm. This is uh, in referral to, uh, Larry Groves. Uh, he's in some trouble tonight. I wanted to let you know you might want to ask him about it tomorrow. Uh, he threatened my life. Ah, he's starting a lot of trouble. You might want to ask him about it before you keep him employed, uh. He's crooked-crooked dude. He's going to lie about John. He wants to stab John in the back. Give this message to John. Thank you. M'bye.

         According to Mann, he meant the use of the phrase "stab John in the back" figuratively; Groves never threatened physical violence against Hirschfeld, and Mann never told the police or Hirschfeld that Groves had done so. Mann testified, however, that Groves "was very unappreciative of working for [Hirschfeld]" and had made disparaging remarks about him on the evening of August 9, including that Hirschfeld, "[d]idn't know what he was doing . . . [and was] going to run the company in the ground."

         Hirschfeld listened to the message when he arrived at work the following morning. He testified at the administrative hearing that, when he heard the message, he understood the words "stab . . . in the back" to mean that Groves had physically threatened him. Hirschfeld said that he was "taken aback" and "stunned," his mind racing. The best thing to do, he believed, would be to get Groves off the worksite. The following text-message exchange between Hirschfeld and Groves ensued:

          8:10 a.m. Hirschfeld: "Do not come into work."

8:11 a.m. Groves: "All ready here won't [sic] me to go home."
8:11 a.m. Hirschfeld: "Yes."
8:13 a.m. Groves: "Am I working tomorrow." ...

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