                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                  No. 12-3507
                                _______________

                               WILLIAM F. METZ,

                                                    Petitioner

                                        v.

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION;
                       CARMEUSE LIME, INC.,

                                                    Respondents
                                _______________

                    On Petition for Review of a Decision of the
               Federal Mine Safety and Health Review Administration
                         MSHA-1: PENN 2009-514-DM
                                _______________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  May 30, 2013

           BEFORE: JORDAN, VANASKIE and COWEN, Circuit Judges

                               (Filed: July 29, 2013)

                                _______________

                                   OPINION
                                _______________


COWEN, Circuit Judge.
          Appellant William Metz (“Metz”) appeals a decision of the Federal Mine Safety and

Health Review Commission (“Commission”). The Commission affirmed a decision by an

Administrative Law Judge (“ALJ”) who, after conducting a hearing, concluded that Metz’s

discharge by Appellee Carmeuse Lime, Inc. (“Carmeuse”) was not a violation of section

105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). We will

affirm.

                                                I.

          We write exclusively for the parties who are familiar with the factual context and

legal history of this case. Therefore, we set forth only the facts that are necessary for our

analysis.

          Metz worked as a millwright at Carmeuse. In early 2009, contractors began

removing and replacing four kilns that were used in the process of creating lime from

limestone. Metz expressed concern for the safety of the contractors and Carmeuse

employees to a number of people in Carmeuse management.

          Around the same time, Metz met with Melissa Croll, a corporate human resources

manager, about Carmeuse’s new “on-call” policy for hourly employees. Metz and Croll

both testified about the meeting at the ALJ hearing. The ALJ determined that their

testimony could not be reconciled. Croll testified that Metz used profanity at the meeting,

was loud and aggressive, and apparently lunged at Croll when he left the meeting. Metz

testified that he did not use profanity towards Croll at the meeting.




                                                2
       After the meeting, Croll undertook an investigation and discovered several prior

instances of similar conduct involving Metz. Carmeuse decided to terminate Metz’s

employment because of his “repeated use of profane, vile, threatening and/or abusive

language in the workplace.” (App. 352.) Metz requested peer review of his termination;

this request was denied due to the sensitive nature of some of the information gathered

during the investigation.

       Metz filed a complaint with the Mine Safety and Health Administration (“MSHA”),

claiming that Carmeuse discriminated against him for making a safety-related complaint.

The MSHA concluded that no discrimination occurred. Thereafter, Metz filed a

discrimination complaint with the Commission. An ALJ held a three-day hearing and

issued an opinion, concluding that Metz’s discharge did not violate section 105(c)(3) of the

Federal Mine Safety and Health Act. In his written decision, the ALJ found that Croll was

credible in her testimony relating to the meeting with Metz, and that Metz was evasive in

his testimony. (App. 464.) Metz appealed to the Commission, which affirmed the ALJ

decision. One commissioner issued a dissenting opinion. This appeal followed.1

                                             II.

                                             A.



1
  The Commission had jurisdiction over this matter under 30 U.S.C. § 823(d). We have
jurisdiction under 30 U.S.C. § 816. We review legal conclusions de novo. Cumberland
Coal Res., LP v. Fed. Mine Safety & Health Review Comm’n, 515 F.3d 247, 252 (3d Cir.
2008). “The findings of the Commission with respect to questions of fact, if supported by
substantial evidence on the record considered as a whole, shall be conclusive.” Id. (quoting
30 U.S.C. § 816(a)(1)).
                                             3
       First, Metz argues that the Commission erred in affirming the ALJ’s determination

that Carmeuse rebutted Metz’s prima facie case of discrimination. In order to establish a

prima facie case of discrimination under section 105(c)(3), a complainant must prove, by

the preponderance of the evidence “(1) that he engaged in a protected activity, and (2) that

the adverse action was motivated in any part by the protected activity.” Sec’y of Labor on

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (1980), reversed on

other grounds sub nom. Consol Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). The

employer can rebut the prima facie case by showing by the preponderance of the evidence

“that the complainant did not engage in protected activity or that the adverse action was in

no part motivated by protected activity.” Sec’y of Labor on behalf of Robinette v. United

Castle Coal Co., 3 FMSHRC 803, 818 n.20 (1981).

       The ALJ found that Metz established a prima facie case and the Commission

concluded that substantial evidence supported this determination. We agree that substantial

evidence supports this conclusion, because Metz made several safety-related complaints

prior to his termination.

       The ALJ found that Carmeuse rebutted the prima facie case by showing that Metz

was terminated due to his “repeated use of profane, vile, threatening and/or abusive

language in the workplace.” (App. 352.) This finding was based in large part on the ALJ’s

determination that Metz’s testimony about his use of profane language was “evasive” and

that Croll’s account was credible. (App. 464.) The Commission concluded that this

determination was supported by substantial evidence.

                                              4
         On appeal, Metz’s primary argument is that the ALJ’s credibility determination was

not supported by substantial evidence. Essentially, Metz urges this Court to disregard the

ALJ’s determination that Metz was “evasive” in his testimony and conclude that Metz was

more credible than Croll. We decline to do so. Overturning an ALJ’s credibility

determination is an “extraordinary step,” as credibility determinations are entitled to a great

deal of deference. See Keystone Coal Mining Corp. v. Sec’y of Labor, 17 FMSHRC 1819,

1881 (1995), affirmed by 151 F.3d 1096 (D.C. Cir. 1998). We decline to take such an

“extraordinary step.” Here, there is substantial evidence in the record to support the ALJ’s

finding that Metz was not credible and that Carmeuse was able to rebut the prima facie

case.2

                                              B.

         Metz also argues that the ALJ and the Commission failed to follow Texas

Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), by not adequately

examining the evidence to determine whether Carmeuse’s reasons for terminating Metz




2
  Metz also argues that we should conclude that Carmeuse failed to rebut the prima facie
case because Metz’s alleged conduct did not warrant termination and because the ALJ
improperly relied on testimony of other witnesses, including certain testimony that is
“double-hearsay.” Since we must use the highly deferential substantial evidence standard,
these arguments are without merit. There is substantial evidence in the record to justify the
ALJ’s determination that Metz was terminated because of his use of profane language, and
even if the ALJ were to disregard some of the testimony that Metz objects to (even though
hearsay is permitted at such hearings, see 29 C.F.R. § 2700.63(a)), there is still substantial
evidence in the record to support a finding that Carmeuse would have terminated Metz’s
employment even absent his safety-related complaints.
                                               5
were pretextual. Metz argues that, under Burdine, he is entitled to a “full and fair

opportunity to demonstrate pretext.” Id. at 1095.

       We conclude that both the ALJ and the Commission considered and rejected Metz’s

arguments that his termination was pretextual, and the ALJ engaged in a lengthy discussion

about whether Carmeuse’s proffered business justifications for terminating Metz were

pretextual. (See App. 465-468.) Metz argues that the ALJ failed to consider certain

evidence present in the record such as evidence of animus about Metz’s safety complaints.

But, the ALJ considered whether Metz was a victim of disparate treatment and concluded

that Carmeuse did not have a general intolerance of safety related complaints. Notably, the

ALJ found that other Carmeuse employees made similar complaints about the safety of the

kiln contractor, and there is no evidence that any of them were terminated. Metz also

argues that his termination was pretextual because the record reveals that other Carmeuse

employees have used vulgar language and were not terminated. The ALJ addressed and

rejected this argument, and there is substantial evidence in the record to support that

conclusion. Finally, Metz argues that Carmeuse’s denial of peer review for Metz’s

termination is evidence that his termination was pretextual because Carmeuse generally

permits peer review of termination decisions. The ALJ accepted Carmeuse’s argument that

peer review was not offered in this case due to the sensitive nature of some of the

allegations in the case. Again, the record contains substantial evidence to support this

conclusion.

                                              III.

                                               6
      For the foregoing reasons, we will affirm the decision of the Federal Mine Safety

and Health Review Commission.




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