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 Grovess employment in retaliation for his reporting safety concerns to the Mine Safety and Health Administration (MSHA), which enforces health and safety standards at the nations mines. For the reasons set forth below, we DENY Con-Ags 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-Ags owner and manager, John Hirschfeld, in August 2016. A review of the circumstances of Grovess employment and termination is necessary to determine whether substantial evidence supports the Commissions conclusion that the termination constituted unlawful retaliation under the Act.
Hirschfeld hired Groves on the recommendation of Grovess 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 Grovess 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 Grovess 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 Grovess 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 Grovess 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 Grovess concerns were valid. When Groves made safety complaints to Henning, Hennings 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 Grovess home. Groves and Mann provided conflicting testimony regarding this incident, but after hearing their testimony and that of a neighbor, the ALJ ultimately credited Grovess version.
According to Groves, he and his wife were out on their porch when Mann came by on the evening of August 9. Grovess wife went inside shortly after Mann arrived, and the two men were joined on the porch by Grovess 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 Grovess 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, Im 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 mens 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, hes 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, hes starting a lot of trouble. You might want to ask him about it before you keep him employed, uh. Hes crooked-crooked dude. Hes going to lie about John. He wants to stab John in the back. Give this message to John. Thank you. Mbye.
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]idnt 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 wont [sic] me to go home. 8:11 a.m. Hirschfeld: Yes. 8:13 a.m. Groves: Am I working tomorrow. 8:13 a.m. Hirschfeld: I dont know yet. 8:38 a.m. Hirschfeld: No work tomorrow. 8:56 a.m. Hirschfeld: Ill mail you on paperwork today, dont come back in. 8:57 a.m. Groves: What did I do. 8:57 a.m. Hirschfeld: Fwd: Ill mail you on paperwork today, dont come back in. 9:25 a.m. Groves: Why dont you wont [sic] me to come back I didnt do anything wrong you have to have a reason.
Groves left immediately when asked by Hirschfeld. Hirschfeld never spoke to Groves about the reasons for his discharge or asked Groves for an explanation of the incident with Mann.
Hirschfeld did, however, consult with several other key individuals before deciding to terminate Groves. He called Mann and asked him what had happened on the evening of August 9, but did not ask him any additional questions. Hirschfeld then called Henning and told him about the allegations and discussed discharging Groves. Finally, Hirschfeld spoke with Sylvia (the companys bookkeeper) and Terri (Hirschfelds sister and Con-Ags vice president). He did not, however, contact the police. And, according to Hirschfelds testimony, he considered that Mann might have been under the influence of alcohol when he left the message on the night of the incident. But he also testified that he trusted Mann.
Hirschfeld sent discharge paperwork to Groves, dated August 9, 2016, stating that Groves was being discharged for threatening people ... at work to kill them. Co-workers. Threats were made after hours. I do not feel comfortable with him working here. Hirschfeld testified that he believed Grovess discharge was justified because he had to protect people at the workplace. ... When somebody has threatened to kill somebody else, youre gone.
The company handbook states that Con-Ag prefers that progressive disciplinary action be applied to violations of work rules, but that serious offenses such as threatening another employee, supervisor or manager may result in immediate discharge, even for a first offense. It further provides that harassment of any kind is prohibited and
[i]f you feel that you have been harassed by ... anyone you deal with through the course of performing your job, report the incident immediately. ...
The company will immediately conduct a thorough and complete investigation of the incident. Should there be a determination that harassment has occurred, the offending party(s) will be disciplined appropriately, up to and including termination.
And finally, the handbook prohibits making false, vicious or malicious statements concerning any employee, suppliers or customers[,] the company management, or its products or methods of manufacturing ....
B. Procedural background
Groves filed a discrimination complaint with the Secretary of Labor on September 22, 2016. MSHA conducted an investigation and concluded that discrimination had occurred. Accordingly, the Secretary filed a complaint with the Commission on behalf of Groves. See 30 U.S.C. § 815(c)(2) (providing that [a]ny miner[ ] who believes that he has been discharged ... in violation of this subsection [of the Act] may ... file a complaint with the Secretary [of Labor] ... [who] shall cause [an] investigation to be made as he deems appropriate ... [and,] [i]f upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall immediately file a complaint with the Commission). Con-Ag requested an administrative hearing, which was held on June 21, 2017. Following the hearing, the ALJ issued an opinion finding that Con-Ag terminated Groves in retaliation for protected activity and in violation of the Act. The ALJ ordered that Con-Ag pay a civil penalty of $10,000, pay damages in the amount of $40,414.47, and reinstate Groves to his former position.
Con-Ag filed a petition for discretionary review by the Commission pursuant to 30 U.S.C. § 823(d)(2). The Commission denied review, making the ALJs decision the final administrative decision of the Commission. See 30 U.S.C. § 823(d)(1). Con-Ag then filed a petition for reconsideration with the Commission, which was also denied. This timely appeal followed. See 30 U.S.C. § 816(a)(1) (providing that decisions of the Commission are appealable to the United States court of appeals for the circuit in which the violation is alleged to have occurred).
II. ANALYSIS
A. Standard of review
Under the Mine Act, this court reviews the Commissions application of law de novo , but the Commissions factual findings will be found conclusive if they are supported by substantial evidence. Cumberland River Coal Co. v. Fed. Mine Safety & Health Review Commn , 712 F.3d 311, 317 (6th Cir. 2013) (quoting Pendley v. Fed. Mine Safety & Health Review Commn , 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. (quoting Pendley , 601 F.3d at 423 ); see also Consol. Rail Corp. v. U.S. Dept of Labor , 567 F. Appx 334, 337 (6th Cir. 2014) (noting that substantial evidence means more than a scintilla, but less than a preponderance, of the evidence, and that the substantial evidence standard is highly deferential).
B. Prima facie case
Discrimination claims under the Act are analyzed using the Pasula-Robinette framework. Cumberland , 712 F.3d at 317-18 (citing Secy of Labor ex rel. Pasula v. Consolidation Coal Co. , 2 FMSHRC 2786 (Oct. 14, 1980), revd on other grounds , 663 F.2d 1211 (3d Cir. 1981), and Secy of Labor ex rel. Robinette v. United Castle Coal Co. , 3 FMSHRC 803 (Apr. 3, 1981) ). To establish a prima facie case of discrimination under this framework, a miner must show that he was: (1) engaging in protected activity, and (2) subject to an adverse employment action that was at least partially motivated by his protected activity. Id. at 318. The mine operator may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part motivated by protected activity. Pendley , 601 F.3d at 423 (quoting Driessen v. Nev. Goldfields, Inc. , 20 FMSHRC 324, 328 (Apr. 9, 1998) ).
Con-Ag concedes that Groves engaged in protected activity under the Act when he provided information to MSHA regarding safety issues at the mine. But Con-Ag contends that the ALJs finding that Grovess termination was motivated by his engagement in this protected activity is not supported by substantial evidence. We disagree.
[D]irect evidence of actual discriminatory motive is rare. Short of such evidence, illegal motive may be established if the facts support a reasonable inference of discriminatory intent. Secy of Labor ex rel. Howard v. Cumberland River Coal Co., 34 FMSHRC 1396, 1397 (June 15, 2012); see also NLRB v. Vemco, Inc. , 989 F.2d 1468, 1479 (6th Cir. 1993) (noting that, in the context of unfair labor practices, [r]arely is there direct evidence that the employers animus actually caused a layoff decision, and therefore courts may properly consider other evidence).
The Commission has generally looked to four factors in determining whether a causal connection exists between protected activity under the Act and an adverse employment action: (1) the mine operators knowledge of the protected activity; (2) the mine operators hostility or animus towards the protected activity; (3) the timing of the adverse action in relation to the protected activity; and (4) the mine operators disparate treatment of the miner. Cumberland , 712 F.3d at 319 ; see also Secy of Labor ex rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-12 (Nov. 13, 1981), revd on other grounds, 709 F.2d 86 (D.C. Cir. 1983). This court has recognized that a coincidence in time between the protected activity and the adverse action may alone be sufficient to establish discriminatory intent. See Pendley , 601 F.3d at 427 (quoting Secy of Labor ex rel. Garcia v. Colo. Lava, Inc. , 24 FMSHRC 350, 354 (Apr. 30, 2002) ).
In this case, the ALJ did not find any direct evidence of animus or disparate treatment. But she found the factors of timing and knowledge to be persuasive. With respect to the timing factor, Groves made his first complaint-regarding the removal of loose material from the highwall-approximately two-and-a-half months before his discharge. And Grovess meeting with the MSHA investigator in August occurred just five days before he was fired, a fact that the ALJ found particularly noteworthy. We agree that the timing of Grovess discharge in relation to these protected activities supports a finding of discriminatory intent. See Metz v. Carmeuse Lime, Inc. , 34 FMSHRC 1820, 1825-26 (Aug. 9, 2012) (finding that a miners termination two to three weeks after making safety-related complaints was a sufficient coincidence of time to support a prima facie case of discrimination); Phelps Dodge , 3 FMSHRC at 2511 (finding that coincidental timing showed an illegal motive where the miner received a warning within one-and-a-half months after contacting MSHA with safety concerns and only four days after participating in a safety-grievance meeting resulting from a complaint signed by 72 employees).
The ALJ then turned to the knowledge factor. See Phelps Dodge , 3 FMSHRC at 2510 (The operators knowledge of the miners protected activity is probably the single most important aspect of a circumstantial case [of discrimination].). Although the ALJ recognized that there might not be sufficient evidence to infer that Hirschfeld knew of Grovess July 2016 letters, she found that Hirschfeld at least knew of the May 24 complaint and the August 5 meeting. Con-Ag disputes this finding, highlighting a perceived lack of evidence that Hirschfeld knew of either activity before he discharged Groves, and arguing that any inference of such knowledge was unreasonable.
Like discriminatory intent itself, an employers knowledge of a miners protected activity can be shown by circumstantial, rather than direct, evidence. Phelps Dodge , 3 FMSHRC at 2510 (Because subjective factors are involved, the operators knowledge-like the overall question of motivations itself-can be proved by circumstantial evidence and reasonable inferences.).
In this case, the ALJ relied on the fact that Hirschfeld was aware that Groves, as well as Con-Ags other employees, spoke at various times with MSHA inspectors and investigators. And from May through July 2016, Con-Ag received 89 citations from MSHA. Groves also frequently raised concerns about safety issues at the mine to both Hirschfeld and Henning, supporting an inference that Hirschfeld believed that Groves was making repeated safety complaints to MSHA representatives.
With respect to the specific May 24 complaint and accompanying citation, Groves testified that Henning and Hirschfeld saw him speak with Inspector Grimes. The ALJ further found that although the citation did not specifically identify Groves, it still would have alerted Hirschfeld to Grovess conversation with the inspector because it specifically referred to Grovess excavation work and to Hirschfelds direct instructions to move closer to the highwall.
Con-Ag contends that this was an unreasonable inference for the ALJ to make because the MSHA inspectors talked to everyone on site and anyone could have made the complaint about excavating close to the highwall. We disagree. Con-Ag has identified no evidence in the record that any other employees were present during the incident, and the citation refers to Hirschfelds specific instruction to Groves to work closer to the wall. This was sufficient evidence for the ALJ to conclude that Hirschfeld was aware of Grovess complaint regarding the May 24 incident. See Secy of Labor v. Mid-Continent Res., Inc. , 6 FMSHRC 1132, 1138 (May 30, 1984) (The possibility of drawing either of the two inconsistent inferences from the evidence [does] not prevent [an agency] from drawing one of them .... (alterations in original) (quoting NLRB v. Nev. Consol. Copper Corp. , 316 U.S. 105, 106, 62 S.Ct. 960, 86 L.Ed. 1305 (1942) ) ).
The ALJ also found that Hirschfeld knew of Grovess August 5, 2016 meeting with Investigator Dibble because Groves told Henning about the meeting and because Hirschfeld consulted with Henning before deciding to fire Groves. Con-Ag contends that this finding was unreasonable because Hirschfeld spoke with Henning only after Hirschfeld fired Groves via text message, but this contention is not supported by the record. Hirschfeld never said that he spoke with Henning only after sending Groves the text message about mailing Grovess paperwork. To the contrary, Hirschfeld testified clearly that he spoke with Henning as part of his investigation into the August 9 incident.
The ALJ reasonably imputed Hennings knowledge of the August 5 meeting between Groves and Inspector Dibble to Hirschfeld. See Evans v. Profl Transp., Inc. , 614 F. Appx 297, 303 (6th Cir. 2015) (explaining in a case brought under the Fair Labor Standards Act that, [t]o be sure, knowledge of a plaintiffs protected activity can be inferred from evidence of the prior interaction of individuals with such knowledge and those taking the adverse employment action (emphasis in original) (quoting Mulhall v. Ashcroft , 287 F.3d 543, 553 (6th Cir. 2002) ) ); Metz v. Carmeuse Lime, Inc. , 34 FMSHRC 1820, 1826 (Aug. 9, 2012) (concluding that the ALJ properly imputed the [supervisors] knowledge of [the miners] protected activities to the ... corporate officials who decided to terminate [the miner], and noting that the small size of a mine supports an inference that an operator was aware of a miners protected activity); Turner v. Natl Cement Co. of Cal. , 33 FMSHRC 1059, 1067 (May 20, 2011) (imputing knowledge of the miners protected activity to the plant manager when the manager consulted with individuals who knew of the activity before he fired the miner, and explaining that [a]n operator may not escape responsibility by pleading ignorance due to the division of company personnel functions (quoting Secy of Labor v. Metric Constructors, Inc. , 6 FMSHRC 226, 230 n.4 (Feb. 29, 1984) ) ).
The ALJs conclusion that Hirschfeld knew of the August 5 meeting is therefore supported by substantial evidence. And because an employers knowledge of protected activity and the close proximity in time between that protected activity and the miners discharge are sufficient to establish discriminatory intent, the ALJs broader conclusion-that discrimination was at least one of the causes of Grovess discharge-is also supported by substantial evidence.
Con-Ags rebuttal of the prima facie case of discrimination failed to persuade the ALJ. The company argued that Hirschfeld discharged Groves solely because of the alleged threats that Groves made to Mann and that, as reflected in the company handbook, Con-Ags policy permitted the immediate discharge of an employee who threatens a coworker. For reasons discussed in greater detail below, the ALJ found Hirschfelds testimony that he fired Groves based on the August 9 incident not credible because Hirschfeld made only a cursory investigation into the incident and never discussed the matter with Groves.
A credibility decision by an ALJ should not be disturbed by a reviewing appellate court unless it has no rational basis. Fluor Daniel, Inc. v. NLRB , 332 F.3d 961, 967 (6th Cir. 2003) (quoting NLRB v. Valley Plaza, Inc. , 715 F.2d 237, 242 (6th Cir. 1983) ); see also Mountain States Contractors, LLC v. Perez , 825 F.3d 274, (6th Cir. 2016) (reviewing a decision by the Occupational Safety and Health Review Commission and noting that [t]his Court does not set aside the credibility determinations of an ALJ unless found to be inherently incredible or patently unreasonable (quoting Absolute Roofing & Constr., Inc. v. Secy of Labor , 580 F. Appx 357, 360 (6th Cir. 2014) ) ). Con-Ag has offered no persuasive reason to overturn the credibility decision here. We therefore find that substantial evidence supports the ALJs conclusion that Con-Ag failed to rebut the prima facie case of discrimination.
C. Con-Ags affirmative defense
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 miners protected activity, it would have taken the action even if the miner had not engaged in protected activity. Cumberland River Coal Co. v. Fed. Mine Safety & Health Review Commn , 712 F.3d 311, 319 (6th Cir. 2013) (quoting Pendley v. Fed. Mine Safety & Health Review Commn , 601 F.3d 417, 423-24 (6th Cir. 2010) ). The mine operator can show this by: (1) past discipline of [the] miner, (2) unsatisfactory past work record, (3) prior notices for unacceptable behavior, or (4) the miners noncompliance with personnel rules. Id. Con-Ag does not contend that any of the first three situations are at play in this case. Instead, it argues that Hirschfeld would have fired Groves regardless of his protected activity because he broke a company rule that prohibits threatening coworkers and provides that the violation may result in immediate discharge.
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. Cumberland , 712 F.3d at 319 (alterations in original) (quoting Bradley v. Belva Coal Co. , 4 FMSHRC 982, 993 (June 4, 1982) ). [T]he inquiry is limited to whether the reasons are plausible, whether they actually motivated the operators 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.
An ALJ may not impose [his or her] own business judgment as to an operators actions. See id. But this restrained review does not mean that the operators justification should be examined superficially or be approved automatically once offered. Cumberland , 712 F.3d at 320 (quoting Haro v. Magma Copper Co. , 4 FMSHRC 1935, 1938 (Nov. 30, 1982) ). A justification might be so weak, so implausible, or so out of line with normal practice that it should be found to be mere pretext. Secy of Labor ex rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516 (Nov. 13, 1981).
Con-Ag argues that, by rejecting its affirmative defense, the ALJ was impermissibly imposing her own business judgment on Con-Ags decision to discharge Groves. Specifically, the company contends that the ALJ relied on her own business judgment when considering (1) the adequacy of Con-Ags investigation into the August 9 incident, and (2) whether Grovess discharge was in line with company policy as laid out in the handbook.
But the rule against substituting ones own business judgment for that of the operator simply means that the ALJ may not pass on the wisdom or fairness of the operators proffered justification. Bradley , 4 FMSHRC at 993. For example, in Bradley , the Commission admonished the ALJ for suggesting that the miners discharge was totally disproportionate to the sanction because [s]uch personal views from the ALJ were irrelevant. Id. at 994. Stated differently, the relevant adjudicator must not assess the operators asserted justification based on his or her own view of whether the asserted justification was enough to support the adverse action, but rather based on what the evidence shows that the operator actually believed at the time. Pendley , 601 F.3d at 426.
A review of the ALJs decision makes clear that she did not reject Con-Ags defense based on her own perceptions of the wisdom or fairness of discharging Groves for allegedly threatening another employee while offsite. Rather, she found Hirschfelds testimony so implausible as to be not credible and thus disbelieved his contention that he would have fired Groves based on the August 9 incident alone. The ALJ discussed and relied on substantial evidence for this credibility finding.
One of the key facts that the ALJ relied on was the cursory nature of Hirschfelds investigation into the August 9 incident. To the ALJ, [t]he fact that [Hirschfeld] accepted Manns account of the incident without speaking to Groves first especially st[ood] out. The ALJ also emphasized that Hirschfeld did not attempt to ascertain the motive underlying Manns phone message to him. And she further noted that within an hour of listening to Manns message on August 10, Hirschfeld had sent Groves text messages telling him not to come back to work and that he would send discharge paperwork.
Con-Ag contends that the ALJ had no basis to infer that Hirschfelds text message regarding paperwork referred to discharge paperwork and thus to conclude that Hirschfelds investigation of the incident was unreasonably brief. But Con-Ag does not offer any alternative explanation of what other paperwork Hirschfeld was referring to, and the record shows that the discharge paperwork was dated August 9 and received by Groves several days later. Accordingly, we conclude that this was not an unreasonable inference.
Hirschfeld, then, was found to have decided within an hour of receiving Manns message to discharge Groves, after speaking only with Mann, Henning, Sylvia, and Terri. Among these individuals, the only one with knowledge of the incident was Mann. And although Hirschfeld testified that he trusted Mann, he also acknowledged the possibility that Mann was under the influence of alcohol when he left the voice message.
The ALJ further observed that Hirschfelds failure to conduct a meaningful investigation into Manns allegations was inconsistent with Con-Ags policy, as laid out in the handbook, to conduct a thorough and complete investigation into any incident of harassment alleged by an employee. As Con-Ag argues, this last observation is an incorrect reading of Con-Ags handbook. The handbook requires Con-Ag to investigate allegations of harassment but does not explicitly require investigations into allegations of threats. But this error does not undermine the ALJs analysis. A review of her opinion shows that the unreasonably brief nature of the investigation itself, not the alleged failure to comply with the handbook, is what led the ALJ to find Hirschfelds testimony not credible.
The cursory nature of Hirschfelds investigation became more significant when the ALJ considered that there was no evidence in the record that Groves had any history of violence, threatening behavior, or discipline whatsoever. And although Hirschfeld learned from Henning that Groves had had a previous altercation with somebody else, there is no evidence that Hirschfeld knew any details about or believed Groves to have been the aggressor in the incident. In fact, the only evidence on this issue shows that Groves was not the aggressor in this earlier altercation.
Hirschfelds testimony that his sister, Terri, reported feeling threatened by Groves after the incident between Groves and Mann was also considered by the ALJ. But the ALJ noted that Hirschfeld provided no explanation or basis for why Terri felt that way, and Terri herself did not provide any statement in the case. Moreover, there is no evidence in the record that any other employee ever reported feeling threatened by Groves.
The ALJ further noted that the evidence proffered by Con-Ag shows that other employees have been terminated only for reasons related to attendance and safety. Despite Hirschfelds own statement that his employees generally are part of a rougher crowd, there is no evidence that Con-Ag has ever disciplined, let alone discharged, any employee for making threatening statements either on or off the worksite.
The ALJ also found that Hirschfelds testimony regarding his reaction to Manns message to be disingenuous. Hirschfeld testified that he interpreted Manns voicemail statement that Groves would stab him in the back literally, as a physical threat against him (Hirschfeld). But the popularity of that idiom led the ALJ to find it highly unlikely that a person in Hirschfelds position would be unfamiliar with [its] nonliteral usage. And the context of Manns use of the idiom makes it even more unlikely that an individual in Hirschfelds shoes would interpret the statement as a literal threat: Hes crooked-crooked dude. Hes going to lie about John. He wants to stab John in the back. (Emphasis added.) Mann also testified that he never believed or reported to anyone that Groves had made a physical threat against Hirschfeld. So even if Hirschfeld had initially taken the statement as a physical threat against him, he would have learned the truth when he called Mann and Mann explained the incident. Hirschfeld also ultimately acknowledged during his testimony that Mann did not mean the phrase stab in the back as a literal threat.
The ALJ expressed no view about whether firing Groves based on the alleged threats against Mann was wise or fair. Instead, she concluded that Hirschfelds testimony that he would have fired Groves based on the alleged threats alone was implausible and thus not credible. The ALJs adverse credibility finding also undermines Con-Ags argument that the honest-belief rule applies in this case because the finding suggests that Con-Ag could not have honestly believed in the proffered reason given for its employment action. See Smith v. Chrysler Corp. , 155 F.3d 799, 806 (6th Cir. 1998) (explaining that so long as the employer honestly believed in the proffered reason given for its employment action, the employee cannot establish pretext even if the employers reason is ultimately found to be mistaken, foolish, trivial, or baseless).
The ALJ therefore did not impose her own business judgment on Hirschfelds proffered justification for firing Groves. Because substantial evidence supports her determination that Con-Ags reason for terminating Groves was pretextual, she did not err by concluding that Con-Ag discriminated against Groves when it discharged him based on his engagement in protected activity.
D. Relief
1. Calculation of damages
Con-Ag next argues that the ALJ denied it the right to present its case or defense as was required for a full and true disclosure of the facts regarding back pay calculations. See 29 C.F.R. § 2700.63(b) (explaining that in hearings brought under the Act, [a] party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of facts). Accordingly, Con-Ag contends that the ALJs determination of damages should be vacated and a new hearing should be held at which Con-Ag may present evidence about the correct calculation of damages in this case.
A review of the record, however, reflects that the ALJ gave Con-Ag more than an ample opportunity to present its own evidence related to the correct calculation of damages in this case. On April 26, 2017, after settlement talks had proved unfruitful, the ALJ asked the parties to submit a calculation of back pay and damages and tell [her] where [they] can agree to amounts and where [they] cannot. She then set a five-day deadline for submitting those calculations. The Secretary timely submitted his calculation to the ALJ and Con-Ag, but Con-Ag did not submit any calculation of its own or object to the one provided by the Secretary. In a follow-up email on May 10, the ALJ asked Con-Ag to [p]lease look at the back wage computation and tell me if and where you disagree. If you disagree, provide a copy of your calculations so I can see what you believe the back wage amount to be. When on May 31 she still had not received any information about the backpay calculation from Con-Ag, the ALJ sent the following message:
I ... note that [Con-Ag] has not provided a response to my request for comment and calculation of back pay. I have asked twice and have received nothing, therefore, the back pay calculations provided by the Secretary are accepted and should I find that Con-Ag violated section 105(c) of the Act, I will assess the back pay according to the calculation provided. No further evidence will be necessary at [the] hearing.
There is no evidence in the record that Con-Ag responded to any of the ALJs requests or otherwise asked to delay submitting evidence related to damages until the hearing.
At the administrative hearing, the ALJ advised the parties before the lunch break that they would take up [the backpay calculation] later [that] day. After the lunch break, the ALJ noted that she had heard nothing back from Con-Ag related to her requests for backpay calculations, but that she was going to give [Con-Ag] one more chance. She then asked Con-Ags attorney if he believed that there were any errors in the backpay calculation provided by the Secretary. Con-Ags attorney told the ALJ that he had previously reviewed the Secretarys calculation with Hirschfeld, took several minutes to again briefly discuss the calculation with Hirschfeld while the ALJ waited, and reported back to the ALJ that: No; we have no further information. Notably, Con-Ags attorney did not make any argument to the ALJ that Con-Ag had not had an adequate opportunity to submit evidence related to the backpay calculation or to consider the calculation provided by the Secretary.
Con-Ag now argues that it had strategic reasons for not submitting any calculation of backpay when first asked by the ALJ, and that it later believed it was unable to submit evidence related to the calculation at the hearing based on the ALJs email that no such information would be necessary. It contends that it was therefore deprived of a meaningful opportunity to present such evidence. But if Con-Ag had strategic reasons for declining to submit evidence related to backpay, it should have raised the issue with the ALJ at the hearing or in its petitions to the Commission for discretionary review and reconsideration. There is no evidence that it did so.
Con-Ags failure to present evidence relating to the backpay calculation resulted not from any lack of a meaningful opportunity to provide such evidence, but rather from its own decision not to take advantage of the numerous opportunities provided. And because Con-Ag failed to submit its own damages calculation to the ALJ or to object to the calculation accepted by the ALJ (either before the ALJ or the Commission), we will not consider Con-Ags objection to the calculation of damages raised now for the first time on appeal. See 30 U.S.C. 816(a)(1) (No objection that has not been urged before the Commission shall be considered by [a United States Court of Appeals reviewing a Commission decision], unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.).
2. Reinstatement
Con-Ags final argument is that Hirschfeld cannot possibly reinstate Groves to his former position at Con-Ag because Con-Ag no longer owns the mine, so the ALJs order of reinstatement is improper and should be vacated. But Con-Ag provides no proof that it no longer owns the mine beyond citations to testimony from Mann and Hirschfeld at the hearing. These statements are equivocal as to who owns and operates the mine. Hirschfeld testified that Con-Ag ... was started in 1980, and weve been mining there since. And Con-Ag and its parent company, Quality Ready Mix, continue to exist, although Hirschfeld stated that all the crushing at Con-Ag [was] turned over to another company called Cornerstone Crushing shortly after Groves was fired.
If Con-Ag truly cannot comply with the order for reinstatement, it can raise this issue with MSHA. We decline to vacate the remedy on appeal based on unclear testimonial evidence. The issue can be definitively decided by sale and ownership records not provided here. And if, as Con-Ag argues, Groves does not wish to be reinstated, he may choose to decline the position. But the fact that he might choose to decline the position does not render the remedy improper. See 30 U.S.C. § 815(c)(3) (providing that the Commission may grant[ ] such relief as it deems appropriate, including, but not limited to, an order requiring the rehiring or reinstatement of the miner).
III. CONCLUSION
For all of the reasons set forth above, we DENY Con-Ags petition for review.