                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0093p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                              X
                                  Petitioner, -
 CUMBERLAND RIVER COAL COMPANY,
                                               -
                                               -
                                               -
                                                  No. 12-3918
           v.
                                               ,
                                                >
                                               -
                                               -
 THE FEDERAL MINE SAFETY AND HEALTH
                                               -
 REVIEW COMMISSION and THE SECRETARY
                                               -
 OF LABOR, MINE SAFETY AND HEALTH
                                               -
                               Respondents, -
 ADMINISTRATION (MSHA),

                                               -
                                               -
                                               -
 CHARLES SCOTT HOWARD,
                                 Intervenor. N
                  Upon Petition for Review of an Order of the
              Federal Mine Safety and Health Review Commission.
                           No. KENT 2011-1379-D.
                                    Argued: March 6, 2013
                             Decided and Filed: April 4, 2013
    Before: MARTIN and GILMAN, Circuit Judges; FOWLKES, District Judge*

                                      _________________

                                           COUNSEL
ARGUED: Willa B. Perlmutter, CROWELL & MORING LLP, Washington, D.C., for
Petitioner. Lynne B. Dunbar, UNITED STATES DEPARTMENT OF LABOR,
Arlington, Virginia, for Respondent Secretary of Labor. Tony Oppegard, Lexington,
Kentucky, for Intervenor. ON BRIEF: Willa B. Perlmutter, CROWELL & MORING
LLP, Washington, D.C., for Petitioner. Lynne B. Dunbar, W. Christian Schumann,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondent
Secretary of Labor. Tony Oppegard, Lexington, Kentucky, Wes Addington,
APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky, for Intervenor.




        *The Honorable John T. Fowlkes, Jr., United States District Judge for the Western District of
Tennessee, sitting by designation.


                                                 1
No. 12-3918            Cumberland River Coal Co. v. Fed. Mine Safety and                         Page 2
                       Health Review Comm’n et al.


                                       _________________

                                              OPINION
                                       _________________

       JOHN T. FOWLKES, JR., District Judge. This appeal comes before the court
because of the Federal Mine Safety and Health Review Commission’s (the
“Commission”) denial of Cumberland River Coal Company (“CRCC”) request for a
Review of the Administrative Law Judge’s (“ALJ”) decision. The ALJ found that
CRCC discriminated against Charles Howard, a coal miner, under Section 105(c) of the
Federal Mine Safety and Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 815(c),
because of his previous protected activity and that CRCC’s asserted business
justification for Howard’s termination was pretextual. The ALJ ruled that Howard
should be reinstated to his former position.

       Because the Commission declined to review, the ALJ’s decision became the final
order of the Commission, forty days after its issuance. CRCC filed a Petition for Review
in this Court, alleging that the ALJ (1) improperly found that CRCC discriminated
against Howard under Section 105(c) of the Mine Act; (2) applied the wrong standard
in rejecting CRCC’s business justification as a defense to Howard’s termination; and (3)
ignored precedent and the safety objectives of the Mine Act by reinstating Howard to his
former position. We conclude that the ALJ did not err in her decision. For the reasons
set forth below, we AFFIRM the ALJ’s decision.

       I.         Background

       Charles Scott Howard, the Intervenor in this matter, has been employed as a coal
miner with CRCC since March 2005. At all relevant times, Howard was employed as
an underground face worker.1 During his years of employment with CRCC, Howard
brought seven prior discrimination complaints pursuant to the anti-discrimination



       1
           As an underground face worker, he is assigned to work underground in the mine’s belt corridor.
No. 12-3918           Cumberland River Coal Co. v. Fed. Mine Safety and                       Page 3
                      Health Review Comm’n et al.


provision of the Mine Act, Section 105(c), 30 U.S.C. § 815(c)(1).2 His previous
litigation against CRCC was well-known to those employed by CRCC and was very
public.

          On July 26, 2010, Howard suffered a head injury while cleaning the beltline in
the mine’s belt corridor. Howard’s injury caused residual physical, cognitive, and
behavioral problems and required him to obtain treatment by his primary-care physician
and examination by seven different specialists.3 Each of these physicians, except for Dr.
Robert Granacher, is within CRCC’s panel of physicians in its managed care network.
Howard was placed on leave and received medical treatment and workers’ compensation
for approximately ten months. After his ten-month leave, seven of Howard’s eight
physicians released him to return to work without restrictions. Dr. Granacher released
Howard back to work, but qualified that Howard should not return to any work
conditions that required him to be “at height.” Specifically, Dr. Granacher stated:

          In my opinion, within reasonable medical probability, Charles Howard
          has a 7% neuropsychiatric impairment due to brain trauma July 26, 2010.
          . . . Charles Howard does require restrictions upon job performance not
          to work at height. . . . Charles Howard has the mental capacity to engage
          in any work he is trained, educated, or experienced to perform.

In sum, Dr. Granacher expressed his opinion that Howard had achieved maximum
medical improvement and that his prognosis going forward was positive.

          After receiving Dr. Granacher’s evaluation, Howard’s supervisor, William
Gilliam, stated his belief that Howard could be accommodated based upon the “at
height” restriction. CRCC’s administration, however, decided that it needed clarification
from Dr. Granacher as to the meaning of “at height.” CRCC provided Dr. Granacher


          2
           Howard’s seven prior discrimination complaints against CRCC included allegations that: CRCC
assigned him to undesirable jobs because of his demanding nature; CRCC reduced the workforce to
fabricate justifications to terminate him; and CRCC failed to protect his truck from vandalism in the
company parking lot.
         3
           The physicians who examined Howard are as follows: Dr. Chandrashekar Krishnasway, M.D.,
neurologist; Dr. Tamara Knox, M.D., neuropsychologist; Dr. Syamala H.K. Reddy, M.D., ophthalmologist;
Dr. Travis Burt, M.D., neurosurgeon; Dr. Larry Hartman, M.D., neurosurgeon; Dr. Sachin Kedar, M.D.,
neuroophthalmogist; and Dr. Robert Granacher, Jr., M.D., neuropsychiatrist.
No. 12-3918            Cumberland River Coal Co. v. Fed. Mine Safety and                               Page 4
                       Health Review Comm’n et al.


with a general job description for the position of an underground face worker. The job
description accurately described Howard’s job title but not Howard’s specific duties.4
During all relevant times of his injury, several members of CRCC’s administration, its
ownership entity, Arch Coal, Inc., and its third-party administrators, Underwriter’s
Safety & Claims and Bluegrass Health Network, Inc., were heavily involved in his
worker compensation case.5 All parties involved knew about the details of his injury
and workers’ compensation benefits and about his previous litigation against CRCC.6
Pursuant to the release by his physicians, CRCC reinstated Howard to his previous
position and enrolled him in an annual retraining program on May 16, 2011. On that
same day, Dr. Granacher responded to CRCC’s inquiry about the “at height”
clarification and replied that he did not believe Howard could return to work as outlined
by the job description. He stated that Howard should be permanently “restricted from
underground coal mining and restricted from exposure to moving machinery.”7 Howard

         4
            The job description stated that Howard could be responsible for the following duties: 1) working
at heights of five to twenty feet, which is required once per week and 2) cleaning the catwalk of coal
debris, which requires the worker to stand on the catwalk while cleaning the walkway of coal debris.
          5
             The named administrative parties involved were: Valerie Lee, human resources manager for
CRCC; Jack McCarty, human resource employee for CRCC; Gaither Frazier, general manager for CRCC;
William Gilliam, production foreman at the belt corridor for CRCC; Sue McReynolds, claim adjuster at
Underwriter’s; Brenda Riddle, claim adjuster at Underwriter’s; Gregg Sisson, supervisor at Underwriter’s;
Penny Carter, nurse case manager at BHN; Carolyn Rendon, nurse case manager at BHN; Denise Hartling,
direct of risk management at Arch; Mike Kafoury, in-house counsel at Arch; John Lorson, vice president
and chief accounting officer at Arch; Denise Davidson, workers’ compensation attorney at Arch; and Mike
Laskowitz, workers’ compensation consultant at Arch.
          6
            On August 10, 2010, Lee sent an e-mail to Kafoury telling him to check out a website regarding
Howard and his video of leaking mine seals, and Kafoury forwarded it to other Arch personnel.
          7
            Dr. Granacher’s opinion was in direct response to a questionnaire that CRCC sent him. The
form stated as follows:
          1.       Do you feel Mr. Howard can return to work at the job as outlined on the
                   attached job description?
                   Yes_____ No______
          2.       If no, please advise what restrictions he would need:
                   __________________________________________
          3.       Restrictions are: Permanent___________ or Temporary__________
Compare questionnaire above to the first questionnaire sent to Dr. Granacher on February 1, 2011 (prior
to his first evaluation):
         1.       Is there evidence of a traumatic brain injury as a result of the work injury of 7-
                  26-10?
         2.       Diagnosis as it relates to the work injury of 7-26-10
         3.       Is any treatment recommended for any work related diagnosis?
         4.       Prognosis
         5.       Has Howard achieved maximum medical improvement from your standpoint?
         6.       Is there any permanent impairment as it related to the work injury of 7-26-10?
                  Please provide the impairment rating.
No. 12-3918        Cumberland River Coal Co. v. Fed. Mine Safety and               Page 5
                   Health Review Comm’n et al.


was immediately removed from retraining; his workers’ compensation benefits were
terminated; and he was fired by CRCC. On May 23, 2011, CRCC sent Howard an
official termination letter, which stated:

       Dr. Granacher, one of your treating physicians for your 7/26/2010 injury,
       notified Bluegrass Health Network, the workers’ compensation agent for
       Cumberland River Coal Company (CRCC) that you would not be able to
       work at your underground face position due to permanent work
       restrictions. . . . [W]e do not have any jobs open at this time for which
       you are qualified that would not require you to be around operating
       equipment. In short, we do not know of any available job you could do,
       with or without accommodation given the restrictions identified by your
       treating physician.

       On May 16, 2011, Howard filed a complaint against CRCC alleging violations
of Section 105(c) of the Mine Act because CRCC would not allow him to return to his
former employment due to his previous protected activity. On May 27, 2011, the
Secretary of Labor (“the Secretary”) filed an Application for Temporary Reinstatement
for Howard, pursuant to 30 U.S.C. § 815(c)(2). Per an agreement between the Secretary
and CRCC, Howard was economically reinstated. On July 20, 2011, the Commission
Chief ALJ approved the economic reinstatement agreement. The Secretary filed a
Discrimination Complaint on Howard’s behalf on August 8, 2011.

       A hearing was held before a Commission ALJ and, on June 15, 2012, the ALJ
ruled that CRCC had violated Section 105(c) of the Mine Act. She ordered that Howard
be fully reinstated to his previous position. Specifically, the ALJ ruled that: (1) Howard
had established a prima facie case of discrimination under Section 105(c); (2) CRCC
tried to prevent Howard from returning from work; and (3) CRCC’s affirmative defense
in response to the discrimination claim against Howard was incredible. CRCC filed a
Petition for Discretionary Review before the Commission. However, the Petition was
denied on July 25, 2012, and the ALJ’s decision became the final order of the
Commission forty days after its issuance. Under Section 106 of the Mine Act, 30 U.S.C.
§§ 815(c) and 816(a)(1), “[a]ny person adversely affected or aggrieved by an order of
No. 12-3918        Cumberland River Coal Co. v. Fed. Mine Safety and            Page 6
                   Health Review Comm’n et al.


the Commission . . . may obtain a review of such order in [the appropriate court of
appeals].” CRCC now appeals the ALJ’s decision to this court.

       II.     Analysis

       A.      Standard of Review

       Under the Mine Act, this court “reviews the Commission’s application of law de
novo,” but the Commission’s factual findings will be found conclusive if they are
supported by substantial evidence. Pendley v. Fed. Mine Safety & Health Review
Comm’n, 601 F.3d 417, 422-23 (6th Cir. 2010). The threshold inquiry in determining
the substantiality of the evidence is “whether there is such relevant evidence as a
reasonable mind might accept as adequate to support the conclusion.” Id. at 423
(brackets and internal quotation marks omitted). In this case, when the Commission
declined to review the Petition for Discretionary Review, the ALJ’s underlying decision
became the final order of the Commission. Therefore, we review the ALJ’s legal
analysis de novo and the ALJ’s factual determinations under the substantial evidence
standard.

       B.      Prima Facie Case for Discrimination under Pasula-Robinette

       The ALJ did not err in finding that Howard was discriminated against under
Section 105(c) of the Mine Act. The purpose of the Mine Act is to ensure the safety of
miners. See 30 U.S.C. § 802. The Mine Act also serves to protect against discrimination
or interference with protected activity. See Section 105(c) of the Mine Act, 30 U.S.C.
§ 815(c). Under the Mine Act, this court analyzes discrimination complaints under the
Pasula-Robinette framework. See Pendley, 601 F.3d at 423 (citing Collins v. Fed. Mine
Safety & Health Review Comm’n, 42 F.3d 1388, 1994 WL 683938, at *2 (6th Cir. Dec.
6, 1994)); see also Sec’y of Labor ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC
2786 (Oct. 14, 1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981); Sec’y of
Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 3, 1981)). To
establish a prima facie case of discrimination, a miner must show that he was: (1)
No. 12-3918        Cumberland River Coal Co. v. Fed. Mine Safety and               Page 7
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engaging in protected activity, and (2) subject to an adverse employment action that was
at least partially motivated by his protected activity. See Pendley, 601 F.3d at 423.
Once the miner has established these factors, the mine operator can then rebut the prima
facie case by showing that: (1) the miner was not engaged in any protected activity, or
(2) the adverse employment action was not even partially motivated by the miner’s
protected activity. See id.

       The ALJ properly found that Howard engaged in protected activity during his
employment. The ALJ found that Howard’s seven prior filings of Section 105(c)
complaints under the Mine Act constitute protected activity. Furthermore, CRCC
stipulated to these facts. Thus, Howard satisfies the first prong of the prima facie case
of discrimination under Pasula-Robinette.

       As to the second prong, the ALJ properly found that Howard’s termination was
due, in part, to his protected activity. Through facts that support a reasonable inference
of discriminatory intent, the ALJ found a causal connection between the adverse action
and the protected activities. To determine whether there was a causal connection
between Howard’s termination and his protected activities, the ALJ used such factors
as: (1) the mine operator’s knowledge of the protected activity; (2) the mine operator’s
hostility or “animus” towards the protected activity; (3) the timing of the adverse action
in relation to the protected activity; and (4) the mine operator’s disparate treatment of
the miner. See Sec’y of Labor o/b/o Howard v. Cumberland River Coal Co., 34
FMSHRC 1396, 1397, 2012 WL 2499038, at *2 (June 15, 2012) (citing Sec’y of Labor
o/b/o Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516, 1981 WL 141473, at *7
(Nov. 13, 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).

       CRCC argues that because of Howard’s brain injury, reinstating him to his prior
position directly contradicts the purpose of the Mine Act, and that adhering to
Dr. Granacher’s medical opinion had no connection to Howard’s protected activities.
However, the ALJ addressed many of the communications between the administrators
regarding Howard’s case. She references a December 17, 2010 e-mail conversation
No. 12-3918            Cumberland River Coal Co. v. Fed. Mine Safety and                           Page 8
                       Health Review Comm’n et al.


between the director of risk management and the workers’ compensation attorney, which
states,

          I’m wondering whether we stand a chance of getting Granacher to give
          [Howard] an impairment rating. . .The hope is that we will get
          restrictions as we need to settle with a resignation. I think that both
          Sherry and Howard feel they won’t get any restrictions and he will be
          back in the driver[‘]s seat (not what we want).8

          The ALJ also pointed to other substantial evidence in the record, such as: (1) the
departure from normal protocol between the various CRCC and third party
administrators involved in Howard’s case;9 (2) the numerous emails between the CRCC
administrators that expressed intentions to restrict Howard from returning to work; (3)
CRCC’s reliance on Dr. Granacher’s second opinion denying Howard’s return to work;
(4) CRCC’s disregard for the seven other physicians’ opinions allowing Howard to
return to work without restrictions; and (5) the lack of specificity in the job description
and inquiry sent to Dr. Granacher for his clarification of “at height.” Accordingly, the
ALJ’s decision was not in error, and CRCC’s argument fails.

          C.      Cumberland River Coal Company’s Business Justification for
                  Termination

          The ALJ did not err in finding that CRCC’s justification for terminating Howard
was pretextual. A mine operator can establish an affirmative defense under the Pasula-
Robinette framework by showing that “while it took adverse action against the miner
because of the miner’s protected activity, it would have taken that action even if the
miner had not engaged in protected activity.” Pendley, 601 F.3d at 423-424. The mine


          8
           The ALJ also specifically references a December 5, 2010 e-mail from the director of risk
management to the human resource manager at CRCC, a claims adjuster at Underwriter’s Safety &
Claims, and a nurse case manager at Bluegrass Health Network, Inc. stating that, “Sue, have you sent the
[Howard] file to Denise Davidson (this will be her biggest challenge yet).”
         9
           “Frazier [general manager for CRCC] agreed that it was unusual to speak with Kafoury, the
Arch Coal, Inc. attorney, before allowing a worker to return and that it often happened that an injured
worker returned to work with some restriction. . . .Lee [human resource manager for CRCC] further
explained that, prior to Howard’s injury; she had not heard Hartling [director of management at Arch Coal,
Inc.] express the desire to see a miner restricted from returning to work. In fact, witnesses for both sides
agreed that the case of Howard was different in many ways from the normal worker injury case.”
Cumberland River Coal Co., 34 FMSHRC at 1402, 2012 WL 2499038, at *7.
No. 12-3918        Cumberland River Coal Co. v. Fed. Mine Safety and               Page 9
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operator can show this by: (1) past discipline of miner, (2) unsatisfactory past work
record, (3) prior notices for unacceptable behavior, or (4) the miner’s noncompliance
with personnel rules. See Bradley v. Belva Coal Co., 4 FMSHRC 982, 993, 1982 WL
176053, at * 9 (June 4, 1982).

       When a mine operator asserts its affirmative defense, the threshold inquiry is
“whether [the affirmative defense is] credible and, if so, whether [it] would have
motivated the particular operator as claimed.” Id. In examining the mine operator’s
justification for terminating a miner, the court must examine “whether the reasons are
plausible, whether they actually motivated the operator’s actions, and whether they
would have led the operator to act even if the miner had not engaged in protected
activity.” Pendley, 601 F.3d at 425. In doing so, the court is limited to a “restrained”
examination of the mine operator’s justification and may not insert its own justification.
Chacon, 1981 WL 141473, at * 3. However, if the court concludes that the affirmative
defense is “weak, implausible, or out of line with the operator’s normal business
practices,” then the court must find that the justification is pretextual. Sec’y of Labor
o/b/o/ Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534, 1990 WL 511791, at *11
(Aug. 20, 1990).

       CRCC argues that the ALJ ignored precedent and inserted her own business-
judgment evaluation in the course of her review. CRCC contends that if the ALJ had
properly examined the Commission’s precedent regarding business justifications, she
would have found that CRCC’s adverse employment action against Howard was not in
violation of Section 105(c) of the Mine Act.

       However, CRCC misunderstands the standard by which the ALJ was to examine
its business justification. As the Commission has opined,

       the reference in Chacon to a “limited” and “restrained” examinationof
       the business justification defense does not mean that such defenses
       should be examined superficially or be approved automatically once
       offered. Rather, we intend that a judge, in carefully analyzing such
       defenses, should not substitute his business judgment or sense of
       “industrial justice” for that of the operator.
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Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938, 1982 WL 176465 * 3 (Nov. 30,
1982). The only justification CRCC asserts for terminating Howard is a purported safety
argument that is supported by only one physician’s opinion. But CRCC discounted the
conclusions of the other seven physicians’ medical examinations entirely. Additionally,
nothing in the record shows that Howard was disciplined, given notice of failure to
comply with personnel rules, or received unsatisfactory reviews—all of which are
appropriate factors to consider when examining the affirmative defense of business
justification. Instead, there is substantial evidence showing that CRCC’s justification
was simply a pretext designed to mask the true reason for Howard’s termination.

       As examined above, the ALJ pointed to several examples of credible and
substantial evidence in the record in reaching her findings: (1) the departure from normal
protocol between the various administrators involved in Howard’s case; (2) the
numerous emails between the various administrators that expressed intentions to prevent
Howard from returning to work; (3) the lack of specificity in the job description and
inquiry sent to Dr. Granacher for his clarification of “at height;” (4) CRCC’s
unquestioning reliance on Dr. Granacher’s second opinion disallowing Howard to return
to work, even though that opinion departed significantly from the doctor’s first opinion;
and (5) CRCC’s disregard for the seven other physicians’ opinions allowing Howard to
return to work without restrictions. When these facts are considered in their totality, it
is evident that the ALJ did not insert her own business justification and that she properly
found CRCC’s business justification to be weak, outside of normal business practices,
and pretextual.

       D.         Charles Howard’s Reinstatement

       The ALJ properly found that Howard should be reinstated to his former
employment position. CRCC argues that ordering Howard to be reinstated is directly
at odds with the purposes of the Mine Act, because returning to work would endanger
his health. CRCC contends that Dr. Granacher’s medical opinion that Howard has a
seven-percent brain impairment that precludes Howard from returning to work is
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unassailable.    Moreover, CRCC asserts that Dr. Granacher’s opinion, as a
neuropsychiatrist, should be weighed more heavily than the other seven physicians’
opinions because of his more in-depth observations and examinations.

       CRCC correctly points to the fact that “the first priority and concern of all in the
coal or mining industry must be the health and safety of its most precious resource—the
miner.” 30 U.S.C. § 801(a). This Court agrees that the purpose of the Mine Act is to
“avert deaths, serious physical harm, and occupational diseases caused by unsafe and
unhealthy working conditions and practices in the nation’s mines.” Collins, 1994 WL
683938, at *4. However, CRCC has no viable safety argument in this particular case.

       Howard’s seven-percent impairment was found to be minimal and unthreatening
for his continued employment at the coal mine by all of his treating
physicians—including Dr. Granacher.         Only after CRCC sent an overbroad job
description and a brief clarification questionnaire did Dr. Granacher find that Howard
should not return to work. Consequently, in accordance with the analysis above and
with the stated objectives of the Mine Act, we conclude that the ALJ did not err in
ordering Howard to be reinstated.

       III.     Conclusion

       For the foregoing reasons, we DENY CRCC’s Petition for Review of the
Commission’s Final Order. The Administrative Law Judge’s decision is AFFIRMED.
