Fred Estrada v. Runyan Construction

Plain-English summary

Judge William B. Moran had already found Runyan Construction liable for discriminating against Fred Estrada but retained jurisdiction until the parties resolved reinstatement, back pay, fees, and other relief. Runyan sought a stay and filed a petition for Commission review before the judge entered a final damages order. The judge denied the stay, and the Commission separately rejected the petition as premature because liability alone was not a final appealable decision. This order required the parties to settle all damages by May 2 or submit a joint, category-by-category statement of agreed and disputed relief by May 16, identifying any factual or legal disputes.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(3)
• Outcome: The stay remained denied, and the parties received deadlines to settle or itemize all requested relief.
• Key point: A discrimination liability ruling is not final for review while the ALJ retains jurisdiction to determine monetary and other remedies.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9933
/ FAX: 202-434-9949

May 1, 2014

FRED
ESTRADA,

Complainant

v.

RUNYAN
CONSTRUCTION,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. CENT 2013-311-DM

SC-MD
2013-06

Mine
ID 29-00159 H321

Mine:
Tyrone Mine

ORDER DENYING
STAY and FURTHER ORDER REGARDING DAMAGES

Before:
Judge Moran

In
this section 105(c)(3) discrimination proceeding under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq., (2012) (“Mine Act,” or “Act”)
the Court issued its Decision on Liability on March 31, 2014. That decision
directed the parties “to confer in order to determine if there can be agreement
as to the terms of relief for Mr. Fred Estrada. Section 105(c)(3) of the Act
provides, in pertinent part: [‘]Whenever an order is issued sustaining the
complainant's charges under this subsection, a sum equal to the aggregate
amount of all costs and expenses (including attorney's fees) as determined by
the Commission to have been reasonably incurred by the miner … for, or in
connection with, the institution and prosecution of such proceedings shall be
assessed against the person committing such violation.’ Some issues related to
the relief were raised by Complainant’s Counsel in its post-hearing brief.[1]
 Typically, reinstatement to Mr. Estrada’s former position, if sought, back pay
with an appropriate interest rate, medical expenses, if any, benefits, such as
pension contributions, if any, and lost overtime, are among the remedial
matters that may be present. In addition, the remedies typically also include:
expungement from Fred Estrada’s personnel file of all references to the
unlawful disciplinary action taken against him, including any such references
to the events and circumstances associated with his wrongful termination from
any other records maintained by the company; and a posting of this decision at
all of its mining properties where Runyan operates, placed in conspicuous,
unobstructed places where notices to employees are customarily posted, for a
period of 60 days, together with a posting by Runyan at such properties that it
will not violate the Mine Act.” Decision on Liability at 25-26.

Unnecessary
delay has followed. Respondent filed a Motion to Stay on April 17, 2014. The
Court responded, via email, on April 18, 2014, advising that “[i]t is probably
true that parties are free to file petitions for discretionary review as they
choose, but it is my understanding that any petition for discretionary review
filed by Runyan is premature, as my decision was not a final decision, and that
such petition will be denied on that basis. Rather my decision was titled as
the Court’s ‘Decision on Liability.’ Further, the Court noted in that decision
that it ‘retains jurisdiction in this matter until the specific remedies to
which Mr. Estrada is entitled are resolved and finalized. Following the
issuance of the final order, this case will be referred to MSHA for assessment
of a civil penalty. [footnote omitted] Accordingly, this decision will not
become final, and therefore not appealable, until an order granting specific
relief and awarding monetary damages has been entered. Counsel are directed to
discuss the issues of the appropriate relief and to report the results of their
discussions in writing to the Court within 20 calendar days of the date of this
order.’ As the Commission noted recently in Secretary obo Shemwell v.
Armstrong Coal Company, 2013 WL 4140416 at *1 (June 2013), ‘Ordinarily, a
judge's decision finding a violation under the Mine Act is not final until the
judge issues a penalty against the operator under section 105(d) of the Mine
Act, 30 U.S.C. § 815(d). In his Decision in this case, quoted
above, Judge Feldman explicitly stated that the decision does not become final
until the judge issues a Decision on Civil Penalty and Supplemental Decision on
Relief. Thus, the Commission lacks jurisdiction to entertain Armstrong's
Petition for Discretionary Review and must reject it.’ Though the Commission’s
decision was speaking broadly to the subject of petitions for discretionary
review, their Shemwell decision happened to involve a discrimination
matter too. Accordingly, [the Court’s] instructions in the email [ ] sent
earlier today remain[s] intact. In that earlier email to the parties [the
Court] stated: Runyan’s Motion to Stay is DENIED.”

Subsequent
to the Court’s April 18, 2014 email, the Commission issued an Order, dated
April 29, 2014, denying Runyan’s “document entitled “Petition for Discretionary
Review.” Entitled was the correct description as the Commission noted that such
filing was premature, agreeing with this Court’s April 18th email
Order which made that observation, as noted above.[2] 

The Court’s
March 31st decision on liability instructed the parties to “discuss
the issues of the appropriate relief and to report the results of their
discussions in writing to the Court within 20 calendar days of the date of this
order.” On April 21, 2014, Counsel for Mr. Estrada provided a “Joint Update to
the Court,” advising that it would advise the Court by May 2, 2014 whether a
settlement could be achieved.

The
Court orders that, absent a complete settlement as to all aspects of damages by
May 2, 2014, the parties are to email a joint submission to the Court by
Friday, May 16, 2014, setting forth each category of damages.  For each
separately identified category of damages, the parties are to note whether
there is an agreement and to separately list the amount agreed upon for each
category. In instances, if any, where there is a dispute as to the dollar
amount for a given category of damages, the parties are to identify whether the
dispute concerns the subject of category being included as damages and/or
whether the dispute is limited to the dollar amount. Accordingly, the parties
are to identify is there are factual disputes pertaining to any given category
of damages or whether the dispute is strictly over a legal determination,
challenging the appropriateness of inclusion of a particular item of damages. In
this regard, the Court notes that damages are discussed in Simpson v. Kenta
Energy, Inc. 7 FMSHRC 272, 278-285 (Feb. 1985)(ALJ) and that the decision
may provide some guideposts for the parties. That decision addresses back pay,
any interim earnings and interest, computed on a quarterly basis, attorney’s
fees, including the appropriate hourly rate, hours reasonably expended, and
various other expenses incurred. Other items may include: medical expenses that
would have been covered by the Complainant’s medical insurance, if applicable;
unemployment compensation payments; vacation pay, if applicable; Fred Estrada’s
reasonable expenses associated with the November 19, 2013 hearing; and whether
reinstatement is sought. Further, the Commission has spoken to the computation
of backpay and interest in UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493
(1988). The need for a hearing to resolve factual disputes over damages is a
rare event.

SO
ORDERED.

/s/
William B. Moran   

William
B. Moran

Administrative
Law Judge

Distribution:

Ben
Furth, Esq., The Furth Law Firm, P.A., The Furth Building, 780 South Walnut # 5,
Las Cruces, NM 88001

Jason
M. Nutzman, Esq., Dinsmore & Shohl, LLP, 900 Lee Street, Suite 600, Charleston,
WV 25301

Nathan
Gonzales, Esq., Gonzales Law, 925 N. Hudson, Silver City, NM 88061

[1] The Decision on
Liability added in a footnote that “Complainant’s post-hearing brief addresses
the subjects typically included for the relief aspects of established
discrimination claims. In this regard it lists the following: ‘1. Expunge from
Mr. Estrada's personnel file any negative references relating to this matter.

2. Reimburse Mr. Estrada for all reasonable and related economic losses or
   expenses incurred in the institution and litigation of this case. This amount
   shall include damages in an amount equal to full backpay, all employment
   benefits, attorneys' fees and costs, all medical and hospital expenses and any
   and all other damages suffered and incurred by Complainant as a result of his
   discriminatory discharge. Furthermore, interest shall be added to backpay and
   other expenses, from the date of discharge until the date of payment, at the
   adjusted prime rate announced semi-annually by the Internal Revenue Service.  3.
   Post this decision at all of its mining properties in conspicuous, unobstructed,
   places where notices to employees are customarily posted, for a period of 60
   days. 4. Restore Mr. Estrada to his former position as a bird hazer or to a
   similar position, at the same rate of pay, same shift assignment, and with the
   same or equivalent duties.’ It then addresses the procedural aspects related to
   determining if an agreement can be reached on these issues: The Parties are
   ORDERED TO CONFER within 21 days of the date of this decision for the purpose
   of arriving at an agreement on the specific actions and monetary amounts Runyan
   shall undertake and pay to carry out this Order. If an agreement is reached, it
   shall be submitted with 30 days of the date of this decision. If an agreement
   cannot be reached, the parties are FURTHER ORDERED to submit their respective
   positions, concerning those issues on which they cannot agree, with supporting
   arguments, case citations and references to the record, within thirty (30) days
   of the date of this decision. For those areas involving monetary damages on which
   the Parties disagree, they shall submit specific proposed dollar amounts for
   each category of relief. If a further hearing is required on the remedial
   aspects of this case, the Parties should so state. C’s Br. at 33-34. The Court
   views this as a reasonable outline for the parties to use in their
   discussions.” Decision at n.39.   

[2] The Commission
also preemptively advised the Respondent that had it instead attempted to seek
interlocutory review, which was the correct way to seek review of the Court’s
Decision on Liability, it would conclude that the conditions for such review
would not be met. Commission Order at 2, citing Rule 76(a)(2), 20 C.F.R. §
2700.76.