Durango Gravel

Plain-English summary

Durango Gravel asked the Commission to reopen a prior discrimination decision after claiming that miner Clay Baier admitted he brought the case to recover withheld wages rather than because of safety concerns. The Commission treated the request as a motion for relief from a final judgment based on newly discovered evidence under Federal Rule of Civil Procedure 60(b)(2). It denied the motion because the alleged admission concerned Baier's motivation for filing the claim, not whether Durango took adverse action because of protected activity, and because similar evidence was already in the hearing record. The prior finding that Durango violated section 105(c) remained in effect.

Decision snapshot

• Cited authority: 30 U.S.C. § 815 and Federal Rule of Civil Procedure 60(b)(2)
• Outcome: The Commission denied Durango Gravel's motion for relief from the prior discrimination decision.
• Key point: Evidence about a complainant's reason for filing a discrimination claim does not warrant reopening when it is immaterial to the discrimination elements, cumulative, or merely impeaching.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                     October 27, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
on behalf CLAY BAIER :
:
v. : WEST 97-96-DM
:
DURANGO GRAVEL :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                         ORDER

BY THE COMMISSION:

    Before us is a Motion to Reopen Case filed by Durango Gravel (“Durango”) on October

4, 1999. Mot. Durango seeks to reopen the above-captioned discrimination matter in which we
determined that Durango’s termination of complainant Clay Baier violated section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (1994) (“Mine Act”). 21
FMSHRC 953 (Sept. 1999). In its motion, Durango claims that, on September 26, 1999, Baier
admitted to Jim Helmericks, owner of Durango, that “the reason he brought his action was to
recover money [Helmericks] withheld from his pay to recover damages to . . . equipment, and
had nothing to do with [Baier’s] concern for safety.” Mot. Durango states that this admission
constitutes “new evidence” and requests that we reopen the above-captioned proceeding so that
we may “discover what really took place in this incident.” Id.

   The Secretary of Labor opposes Durango’s motion. The Secretary construes Durango’s

motion as one for relief from final judgment under the “newly discovered evidence” provision of
Federal Rule of Civil Procedure 60(b). S. Opp’n at 1. The Secretary submits that Baier’s alleged
admission that he brought this discrimination proceeding to recover money Durango withheld
from his paycheck was not in existence at the time of the hearing, and that such evidence would
not produce a different outcome. Id. at 2, 5. She also maintains that Baier’s motivation in
bringing his 105(c) claim is irrelevant to the merits of the case and that the alleged admission is
duplicative of evidence Durango produced at the hearing that Baier’s filing of a discrimination
claim was motivated by a desire to recover money withheld by Durango. Id. at 2-6.

   Although Durango does not specify the basis for its motion, we construe Durango’s

motion as a request for relief from final Commission judgment based on newly discovered
evidence under Fed. R. Civ. P. 60(b)(2). To establish that Rule 60(b)(2) relief is appropriate, the

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newly discovered evidence must have existed at time of trial or concern facts that were in
existence at time of trial, and must be sufficiently significant that it is likely to change the
outcome of the case. 12 James Wm. Moore et al., Moore’s Federal Practice § 60.42[2] (3d ed.
1998) (“Moore’s Federal Practice”); Bruno v. Cyprus Plateau Mining Corp., 11 FMSHRC 150,
153 (Feb. 1989).

     Here, the evidence Durango seeks to introduce relates to its claim at the hearing that Baier

filed his complaint to recover money withheld by Durango. Tr. 47-48, 53, 144-147, 154-55.
Other evidence of Baier’s motivation in bringing his discrimination claim existed at the time of
the hearing. Tr. 144-47, 155. Accordingly, Durango has met the Rule 60(b)(2) requirement that
the newly discovered evidence relate to facts in existence at the time of trial. See 12 Moore’s
Federal Practice § 60.42[2] (citing National Anti-Hunger Coalition v. Executive Committee of the
President’s Private Sector Survey on Cost Control, 711 F.2d 1071, 1075 n.3 (D.C. Cir. 1983)
(stating that crucial inquiry is whether proffered evidence relates to facts in existence at time of
trial, rather than whether the proffered evidence existed at time of trial)).

    However, the evidence Durango seeks to introduce is not material to any of the issues

tried. Our analysis of discrimination cases focuses on whether the adverse action an operator
takes upon a complainant was motivated by the complainant’s protected activity, and, if so,
whether the operator would have subjected the complainant to adverse action notwithstanding the
protected conduct. See Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2799-800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 & n.20 (Apr. 1981).

    By contrast, the evidence Durango presents in its motion relates solely to Baier’s

motivation in filing his discrimination claim (Mot.), and is not related to any element of the
Commission’s discrimination framework. Moreover, while Baier’s complaint initiated the
Secretary’s investigation, it was the Secretary who initiated the discrimination proceeding on
Baier’s behalf. 21 FMSHRC at 955. To the extent Durango seeks to use Baier’s alleged
admission to attack his credibility, Commission and federal caselaw interpreting Rule 60(b)(2)
make clear that the newly discovered evidence may not be mere impeachment evidence. See
Bruno, 11 FMSHRC at 153; Baxter Int’l, Inc. v. Morris, 11 F.3d 90, 93 (8th Cir. 1993) (evidence
that defendant had used proprietary information to start his own business would have only been
used to impeach defendant’s character, it would not contradict trial testimony). Finally, given
that Durango presented evidence at the hearing (Tr. 47-48, 53, 144-147, 154-55) that Baier was
motivated to file his claim by a desire to recover money withheld from his paycheck, the
purported newly discovered evidence is merely cumulative. See, e.g., Parrilla-Lopez v. United
States, 841 F.2d 16, 19 (1st Cir. 1988) (stating that proffered evidence “would be cumulative,
and therefore is not newly discovered evidence”); Trans Mississippi Corp. v. United States, 494
F.2d 770, 773 (5th Cir. 1974) (“evidence merely cumulative or impeaching is not generally
within the canon of ‘newly discovered evidence’ for . . . Rule 60(b) purposes”).

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    In any event, Baier admitted at hearing that one of the major reasons he contacted MSHA

was so that he could recover wages he felt Durango owed him. Tr. 144, 155. Thus, Baier’s
alleged admission is not of sufficient magnitude that it is likely to change the outcome of the
case. See Bruno, 11 FMSHRC at 153-54; see also Coastal Transfer Co. v. Toyota Motor Sales,
U.S.A., 833 F.2d 208, 211-12 (9th Cir. 1987) (denial of motion proper because “the [newly-
discovered evidence], even if produced in a timely fashion, would not have propelled . . .
[movant] over the hurdle of summary judgment.”).

   Accordingly, we reject Durango’s request for relief from the Commission’s decision.




                                        Mary Lu Jordan, Chairman




                                        Marc Lincoln Marks, Commissioner




                                        James C. Riley, Commissioner




                                        Theodore F. Verheggen, Commissioner




                                        Robert H. Beatty, Jr., Commissioner

Distribution

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Jim Helmericks
Durango Gravel
993 Highway 3
Durango, CO 81310

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203

Administrative Law Judge Richard Manning
Federal Mine Safety and Health
Review Commission
1244 Speer Boulevard #280
Denver, CO 80204-3582

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