995 F.2d 1067
1993 O.S.H.D. (CCH) P 30,082
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
KEM COAL COMPANY, Petitioner,
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; and
Charles T. Smith, Respondents.
No. 92-3734.
United States Court of Appeals, Sixth Circuit.
May 24, 1993.
On Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission, KENT 90-30D
Before MILBURN, RYAN and NORRIS, Circuit Judges.
PER CURIAM.
Kem Coal Company appeals the Federal Mine Safety and Health Review Commission's decision that Kem Coal violated section 105(c) of the Federal Mine Safety and Health Act, 30 U.S.C. § 815(c)(1), by discharging Charles T. Smith for making safety complaints. We affirm based upon the reasoning set out in the Administrative Law Judge's decision of April 28, 1992.
Although the company claims that Smith was discharged for swearing at his supervisor, Henry Halcomb, the A.L.J. correctly pointed out that Halcomb provoked Smith's outburst by flatly denying that he had ever ordered Smith to work under falling coal. As the A.L.J. observed, Smith's complaint about the hazards of the falling coal, Halcomb's denial of his order to work under it, and Smith's reaction to that denial are inseparable. There was substantial evidence that Smith's discharge was motivated "in any part" by his safety complaints. See Boich v. Federal Mine Safety & Health Review Comm'n, 719 F.2d 194, 196 (6th Cir.1983), modifying Boich v. Federal Mine Safety & Health Review Comm'n, 704 F.2d 275, 279 (6th Cir.1983). Moreover, since Smith's swearing cannot reasonably be isolated as an independent motive for the discharge, the company's affirmative defense fails. Id.
Accordingly, the decision of the Federal Mine Safety and Health Review Commission is affirmed.