Secretary of Labor obo Moses Ortiz v. Mario Sinacola & Sons Excavating, Inc., et al.

Plain-English summary

Mario Sinacola & Sons Excavating missed payments required by its temporary economic reinstatement agreement with miner Moses Ortiz. The company asked the judge to dismiss the discrimination case and sanction Ortiz for alleged perjury, relying in part on criminal convictions that Ortiz had not disclosed on his job application. Judge Richard Manning held that temporary reinstatement asks only whether the discrimination complaint was frivolously brought and does not permit premature credibility findings on the merits. He also found after-acquired evidence irrelevant at this stage and concluded that the company had not established fraud or perjury. The judge ordered Sinacola to pay the missed amounts by June 24, 2022, continue payments until a final merits order, and denied the requests for dismissal and sanctions.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Temporary economic reinstatement was enforced, missed payments were ordered, and the operator's dismissal and sanctions requests were denied.
• Key point: Alleged after-acquired evidence did not defeat temporary reinstatement before the discrimination claim was decided on the merits.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577/FAX
303-844-5268

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

on behalf of MOSES ORTIZ,

Applicant

v.

MARIO
SINACOLA & SONS

EXCAVATING, INC. AND ITS

SUCCESSORS,

Respondent

APPLICATION
FOR TEMPORARY

REINSTATEMENT

Docket
No. CENT 2021-0184-DM

MSHA
Case No. SC-MD-2021-06

DISCRIMINATION
PROCEEDING

Docket
No. CENT 2022-0028-DM

MSHA
Case No. SC-MD-2021-06

Midlothian
Quarry and Plant

Mine
ID: 41-00071

ORDER GRANTING THE
SECRETARY’S MOTION TO ENFORCE ORDER DIRECTING TEMPORARY REINSTATEMENT OF MOSES
ORTIZ &

ORDER DENYING
RESPONDENT’S MOTION FOR DISMISSAL AND SANCTIONS FOR PERJURY

Before:  Judge
Manning

These
matters are before me on an application for temporary reinstatement [1]
and a complaint of discrimination filed by the Secretary of Labor (“Secretary”)
on behalf of Moses Ortiz pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2), against Mario
Sinacola & Sons Excavating, Inc. and its successors (“Sinacola”).

On May 5, 2022,
the Secretary filed a Motion to Enforce Order Directing Temporary Reinstatement
of Moses Ortiz (“Sec’y Mot.”) in which he argued that Sinacola had failed to comply
with the TR Order.  On May 12, Respondent filed a response to the Secretary’s
motion and its own Requests for Dismissal and Sanctions for Perjury (“Resp. Mot.”).
Subsequently, on May 24, the Secretary filed a reply to Respondents Request for
Dismissal and Sanctions for Perjury.  (“Sec’y Reply”). [2]

SUMMARY OF THE
PARTIES’ ARGUMENTS

The
Secretary, in his motion, asserts that Respondent “failed to comply with the
[TR Order] . . . to temporarily economically reinstate Moses Ortiz by failing
to make payments for three (3) pay periods to date.”  Sec’y Mot. 1. 
Accordingly, the Secretary moves the court to enforce its own order and require
Sinacola to “pay the amount owed for any missed payments and continue to make
the agreed payments to Mr. Ortiz until a final order is issued in the merits
case.” Id . at 2.

Respondent, in its
response and request, moves the court to dismiss the underlying discrimination
case and sanction Ortiz for material perjury and fraud on the Commission. 
Resp. Mot. 1.  According to Respondent, Ortiz confessed during a deposition
that his case is based on retaliation for prior criminal convictions and not on
retaliation for safety complaints.  Further, Ortiz made his only safety
complaint to MSHA after he was terminated [3]
and he cannot name anyone at Sinacola who has been fired for reporting safety
concerns.  Finally, Respondent argues that Ortiz failed to disclose three
serious felony convictions on his 2010 job application and that Respondent
would not have hired Ortiz had it known the truth.  Consequently, Respondent,
citing the “after-acquired evidence” doctrine and the Supreme Court’s decision
in McKennon v. Nashville Banner Publishing Company , 513 U.S. 352 (1995),
argues that Sinacola “cannot be forced to pay wages to an ex-employee who would
never have been hired in the first place had he told the truth, nor can Ortiz
be economically reinstated as the Motion to Enforce asks.” [4]  
Resp. Mot. 3-4. 

The Secretary, in
his reply, argues that the “after-acquired evidence” doctrine is not applicable
to the temporary reinstatement case.  While the doctrine “can limit damages
awarded and will generally render reinstatement and front pay inappropriate[,]”
the Court in McKennon was addressing permanent reinstatement as a remedy
after a determination on the merits was made, not temporary reinstatement, as
is at issue here. [5]
 Moreover, the Secretary, citing McKennon , asserts that even if
after-acquired evidence can be considered, Respondent has failed to put forth
sufficient evidence of wrongdoing of such severity that Ortiz in fact would
have been terminated on those grounds alone.  Sec’y Reply 3.  The Fifth Circuit
Court of Appeals has held that the pertinent inquiry is whether the employee
would have been fired upon discovery of the wrongdoing, not whether the
individual would have been hired in the first instance.  Here, the only
evidence Respondent submitted is an affidavit from its Vice President of Human
Resources that Sinacola would not have hired Ortiz. [6]  

The Secretary
further asserts that Ortiz’s discrimination complaint was not frivolously
brought and that Ortiz’s protected activity need not have occurred in the form
of a complaint to MSHA.  According to the Secretary, Ortiz made numerous safety
complaints to Respondent and, immediately before being terminated, told a
member of mine management that “he could have contacted MSHA regarding his
concerns ‘a long time ago.’”  Sec’y Reply. 5. The Commission has long
recognized that making a complaint to management and asserting that one may
exercise their right to contact MSHA are both protected activities under the
Mine Act. [7]  
Based on the MSHA investigator’s findings regarding protected activity, the
fact that termination was an adverse action under the Act and, given that some
of these events occurred within a single conversation, there clearly was a
nexus.  When the Secretary finds that a miner’s discrimination complaint is not
frivolously brought, the Mine Act requires the Commission to order the
immediate reinstatement of the miner pending final order on the complaint. 

Additionally, the
Secretary argues Respondent continues to harass and retaliate against Ortiz.  The
after-acquired evidence doctrine is well established.  Respondent failed to
meet its burden under the doctrine but nevertheless attempted to bring the
convictions before the court to prejudice Ortiz.  Sec’y Reply.  7.  Further, Respondent
“habitually refused to comply with the

. . . [TR Order],
having missed payments on at least 10 occasions since the Order was entered.” 
Sec’y Reply 7.  Furthermore, despite alleging that Ortiz perpetrated a fraud on
the court and perjured himself, Respondent presented no evidence of the type of
egregious conduct necessary to establish fraud and failed to present evidence
of any testimony under oath that Ortiz contradicted during his deposition. 
Sec’y Reply 8.

Given the above
arguments, the Secretary avers there is no evidence the temporary reinstatement
claim was frivolously brought.  Accordingly, the Secretary asks the court to enforce
the temporary economic reinstatement order of August 24, 2021, and require Respondent,
in an expedited manner, to pay the amount owed for any missed payments and continue
making those payments until a final order is issued in the merits case. 
Finally, the Secretary asks that Respondent’s response and request be stricken
from the record given that it fails to come close to meeting the burden of
proving perjury or fraud on the court, and only serves to further harass and retaliate
against Ortiz. 

DISCUSSION AND
ANALYSIS

Both the temporary
reinstatement proceeding, and the discrimination proceeding are captioned in
this order.  It is critical that the parties recognize the difference between
these two proceedings. While the scope of the discrimination proceeding is
broad and addresses the merits of the complaint of discrimination, the scope of
the temporary reinstatement proceeding was, and is, narrow and limited to a
determination whether the discrimination complaint was frivolously brought.  See
Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc. , 9 FMSHRC
1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738 (11th Cir. 1990) (“ JWR ”).  Moreover,
unlike in a discrimination proceeding on the merits, in a temporary
reinstatement proceeding a judge “may not resolve credibility disputes or make
rulings on credibility.” Sec’y of Labor on behalf of Saldivar v. Grimes
Rock, Inc. , 43 FMSHRC 299, 301 (June 2021) (“ Saldivar ”).

Although a hearing
was not held on the application for temporary reinstatement, [8]
the record supports that Ortiz’s complaint was not frivolously brought.  The
application for temporary reinstatement, the special investigator’s sworn
declaration, and the Secretary’s discrimination complaint allege that in
February and April of 2021 Ortiz made safety complaints and asserted to mine
management his right to contact MSHA with safety concerns. [9]  
Notably, each of those filings allege Ortiz was terminated immediately after
asserting his right to contact MSHA to mine management. [10]
 The Commission has held that termination eight days after an operator gains
knowledge of a protected activity can establish a motivational nexus for
purposes of determining whether a complaint of discrimination is frivolously
brought.  A&K Earth Movers, Inc. , 22 FMSHRC 323, 325-326 (Mar.
2000).  Here, there is evidence that possibly only seconds or minutes elapsed
between the time Ortiz asserted his right to contact MSHA and his termination.  Given
the temporal proximity of the alleged protected activity and adverse action, a
nexus appears to exist that supports a determination that the complaint was not
frivolous. [11]

I find
Respondent’s argument regarding after-acquired evidence unavailing and

inapplicable in
the context of temporary reinstatement proceedings.  Both parties cite the
Supreme Court’s decision in McKennon v. Nashville Banner Publishing Company ,
513 U.S. 352 (1995).  In McKennon , unlike here, the Court was addressing
the impact of the after-acquired evidence doctrine on remedies available after
a determination on the merits of a discrimination complaint.  There the Court
found that although certain remedies, such as full reinstatement and front pay,
may not be available to a discriminatee based on after-acquired evidence of
wrongdoing by the individual, such evidence is not a complete bar to recovery.  Here,
there has been no hearing on the merits of the discrimination complaint and
this court has issued only an order of temporary economic reinstatement
based upon the parties’ jointly submitted Settlement Agreement.  Given the
unique, limited nature of temporary reinstatement proceedings, the Mine Act’s
direction that miners be immediately reinstated pending final order on the complaint,
30 U.S.C. § 815(c)(2), and the parties’ joint agreement to economically
reinstate Ortiz pending final order on the complaint, I agree that any after-acquired
evidence of wrongdoing “is irrelevant and inadmissible at this temporary
reinstatement stage.”  Sec’y of Labor v. Small Mine Dev ., 2020 WL
8180380, at *2. [12]  
Sinacola has presented insufficient evidence or legal argument to merit
overturning the August 24, 2021, Decision Approving Settlement Agreement and
Order of Temporary Economic Reinstatement.

With regard to
Respondent’s motion to dismiss the discrimination proceeding, I find its
arguments unavailing.  Respondent’s motion would require the court to
prematurely weigh evidence and make credibility findings.  The parties are
currently engaged in discovery and preparing for hearing.  This order is not
the appropriate time or place for the court to weigh evidence on whether Sinacola
discriminated against Ortiz.  Rather, during and after the August 2 hearing,
the court will weigh the evidence, make findings of fact and determine whether
Ortiz was discriminated against and, if so, what the appropriate remedy may be.

As stated above,
Respondent maintains that Ortiz was discharged when it learned that he had
previously been convicted of serious felonies and that Ortiz agreed with this conclusion
during his April 8, 2022, deposition.  I note that there appears to be a
serious dispute of material fact between the parties regarding when Respondent
became aware of Ortiz’s criminal record.  Although Respondent asserts it would
not have hired Ortiz had it known of his criminal record, it is unclear when
Respondent became aware of that record.  The Secretary asserts Respondent had
prior knowledge of the criminal record, yet Ortiz was not terminated when management
first became aware of the convictions.  This dispute of material fact is an
issue that must be addressed at the hearing on the merits.  If Respondent had
prior knowledge of the criminal record but failed to act on that knowledge, one
could argue that a later termination allegedly based on that knowledge is
pretextual.  See JWR , 12 FMSHRC 1521, 1534 (Aug. 1990) (“pretext may be
found … where the asserted justification is weak, implausible, or out of line
with the operator's normal business practices.”); see also Reeves v.
Sanderson Plumbing Prod., Inc. , 530 U.S. 133, 148 (2000) (“a plaintiff's
prima facie case combined with sufficient evidence to find that the employer's
asserted justification is false, may permit the trier of fact to conclude that
the employer unlawfully discriminated.”)

Finally, I find that
Respondent’s arguments regarding perjury and fraud on the court lack merit.  I
agree with the Secretary’s analysis and find that Respondent has failed to
point to anything which could meet the high burden of proving a fraud on the
court, i.e., an “unconscionable plan or scheme which is designed to improperly
influence the court in its decision.” First Nat’l Bank of Louisville , 96
F.3d 1554, 1573 (5th Cir. 1996).  Further, although Respondent may take issue
with Ortiz’s failure to disclose these convictions on his application for
employment, Ortiz appears to have been candid about the existence of his
criminal record when asked about it, under oath, at his deposition.  In
addition, Ortiz claims that Respondent knew of at least one of his convictions
for about six years prior to his termination.  Based on the record developed in
these cases to date, I find that it has not been established that Ortiz
perpetrated fraud on the court. 

ORDER

The Secretary’s Motion to Enforce Order
Directing Temporary Reinstatement of Moses Ortiz is GRANTED .  Respondent
is ORDERED comply with all terms of parties’ settlement agreement in the
temporary reinstatement case that was approved by this court by order dated
August 24, 2021.  Specifically, Respondent is ORDERED to pay Ortiz the
money owed for payments under the agreement that were missed as set forth by
the Secretary.  Such payment shall be made as quickly as possible, but by no
later than June 24, 2022.  Further, Respondent is ORDERED to continue
making payments under the terms of the settlement agreement as ordered by this
court until such time that a final order is issued in the discrimination case
on the merits.  Respondent’s Requests for Dismissal and Sanctions for Perjury
is DENIED . [13]

/s/
Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution
( First Class Mail & email):

Lacee Caitlyn Eakins, U.S. Department
of Labor, Office of the Solicitor, 525 Griffin Street, Suite 501, Dallas, TX
75202 ( [email protected] )

Harold Jones, Polsinelli, PC, 2950 N.
Harwood Street, Suite 2100, Dallas, Texas 75201 ( [email protected] )

[1] On August 24,
2021, this court issued a Decision Approving Settlement Agreement and Order of
Temporary Economic Reinstatement (“TR Order”).  In lieu of physically
reinstating Ortiz to his former position at Sinacola, the TR Order made clear
the parties jointly agreed Ortiz would be temporarily economically reinstated. 
Under the terms of the Settlement Agreement submitted by the parties and
approved by the court, Respondent agreed to pay the difference between Ortiz’s
previous rate of pay at Sinacola and the lesser amount he was earning in a new
job held at the time the parties filed the settlement agreement.  The TR Order
incorporated other terms of the economic reinstatement, as well as rights and
responsibilities of the parties, and ordered the parties to comply with such.  Notably,
the Settlement Agreement explicitly stated it was to “remain in effect until a
‘final order’ of the Commission is entered regarding Ortiz’s underlying
discrimination complaint.”  Because the TR Order was not a final disposition of
the application for temporary reinstatement, I retained jurisdiction over the
case.  29 C.F.R. § 2700.45(e)(4). 

[2] The Secretary’s
motion was filed in the temporary reinstatement docket, i.e., CENT
2021-0184-DM.  Respondent filed its response to the Secretary’s motion in the underlying
discrimination docket, i.e., CENT 2022-0028-DM. Because Respondent also
requests that the discrimination case be dismissed and sanctions be imposed, I
accepted the filing in both the temporary reinstatement docket and the
discrimination docket.  Accordingly, both the temporary reinstatement case and
discrimination case are captioned on this order. 

[3] Respondent’s
response focuses on two alleged safety complaints.  First, a safety complaint
made to MSHA regarding a supervisor allegedly not wearing a seatbelt.  Second,
a safety complaint made to someone not with MSHA regarding a hernia.

[4] Respondent also
argues Ortiz perjured himself during his deposition when he mischaracterized
his felony convictions as minor misunderstandings.

[5] The Secretary
cites the decision of my colleague, Judge Simonton, for the proposition that
after-acquired evidence is irrelevant and inadmissible in a temporary
reinstatement proceeding. Sec’y v. Small Mine Dev. , 2020 WL 8180380, at
*2 (December 18, 2020).

[6] The Secretary
asserts it is clear Respondent would not have terminated Ortiz based on the
convictions or any information omitted from Ortiz’s employment application because
Respondent had prior knowledge of that information but did not terminate Ortiz
until after he lodged a safety complaint and stated he could contact MSHA. 

[7] The Secretary
acknowledges that the friction between Ortiz and his supervisor likely began
when the supervisor became aware of Ortiz’s criminal record in 2014 or 2015. 
However, the Secretary asserts that this history does not form the basis of the
suit.

[8] Rather than go to
hearing on the application for temporary reinstatement, the parties jointly
entered into a settlement agreement in which Ortiz, in lieu of actual
reinstatement, was “economically reinstated.”  The Commission addressed
economic reinstatement agreements in Sec’y of Labor on behalf of Gray v.
North Fork Coal Corp . 33 FMSHRC 589 (Mar. 2011) (“Gray”), and stated as
follows:

[The operator]
confuses the legal principles that apply to back pay awards if and when the
miner succeeds in his discrimination complaint on the merits, with the legal
principles governing the wholly separate temporary reinstatement proceeding.

. . .

[T]he purpose of
temporary reinstatement is to put the miner back to work as soon as possible so
that he or she can resume earning a living while the discrimination case is
heard. . . . The temporary reinstatement provisions contemplate that the miner
will provide the operator labor in return for wages and benefits. The issue of
back pay usually does not arise since the miner is not compensated for the
earlier period of time between termination and the judge's order temporarily
reinstating him or her. . . .  Conversely, if the operator chooses to pay the
miner while foregoing the miner's labor, there is no right for the operator to
seek reimbursement from the miner should the miner not eventually prevail on
his or her discrimination claim.

Consequently, we
reject the notion that the considerations which shape back pay award amounts,
also apply, as a matter of law, to the economic reinstatement order before us.
Unlike back pay awards, Commission judges do not decide the terms of economic
reinstatement agreements. The agreement which formed the basis of the judge's
order was arrived at after negotiations between the parties. Moreover, we are
cognizant of the fact that it was North Fork's decision to offer economic
reinstatement in lieu of actual reinstatement that gave rise to the retroactive
pay relief that North Fork now seeks to challenge.

Gray at 592-593.
(Internal citations omitted).

[9] While Respondent
does not explicitly argue that only complaints to MSHA can serve as
protected activity, the Secretary’s reply directly addresses that argument and
correctly states that protected activity can include, among other things,
complaints to mine management and assertions by a miner that they may exercise
their right to contact MSHA.  See e.g., Saldivar 43 FMSHRC 299, 307
(Safety complaints made to the operator are protected activity), Sec’y of
Labor on behalf of Coffee v. Txoma Mining, LLC , 40 FMSHRC 615, 625 (Mar.
2018) (ALJ).

[10] The Secretary
correctly points out that Ortiz, as a lay person, need only have a “mere
belief” that he has been discriminated against, and need not know what
specifically constitutes protected activity in order to trigger the Secretary’s
investigation into the complaint in order to fully develop the possible claim
of discrimination. Sec’y Reply 6 ( quoting Hopkins County Coal, LLC , 38
FMSHRC 1317 (June 2016).  Here, the Secretary’s investigation revealed at least
two instances of potential protected activity by Ortiz, i.e., reporting the
seatbelt issue to mine management and informing management that he could
contact MSHA with his concerns. 

[11] The “not
frivolously brought” standard reflects a Congressional intent that “employers
should bear a proportionately greater burden of the risk of an erroneous
decision in a temporary reinstatement proceeding.” JWR , 920 F.2d at 748,
n.11. 

[12] Although
Respondent’s argument involving the after-acquired evidence doctrine fails in
the context of the temporary reinstatement proceeding, Respondent is free to
reassert that argument and present evidence at the hearing on the merits after
the Secretary has been given an opportunity to establish a prima facie case.  I
note that the Fifth Circuit has held that “the pertinent inquiry . . . is
whether the employee would have been fired upon discovery of the wrongdoing,
not whether he would have been hired in the first instance.” Shattuck v.
Kinetic Concepts, Inc. , 49 F.3d 1106, 1108 (5th Cir. 1995).

[13] The Secretary, in
his reply, requested that Respondent’s response be stricken from the record.  The
Secretary, in making this request, appears concerned that Ortiz will be
prejudiced if the convictions are before the court. Given that I sit as the
finder of fact in this matter, the risk of prejudice due to the existence of
the convictions in the record is minimal at most.  Accordingly, I decline to
strike the Respondent’s response from the record.