Lawrence Pendley v. Highland Mining Co. and James Creighton

Plain-English summary

An earlier decision found that Highland Mining and James Creighton discriminated against miners' representative Lawrence Pendley by interfering with his protected rights. The Secretary proposed a $19,500 penalty against Highland and $500 against Creighton. Judge Kenneth R. Andrews assessed the full company penalty because Highland was a large operator with a substantial violation history, management knew of the conflict and failed to stop the interference, the conduct seriously impaired representative rights, and no good-faith abatement was shown. Applying the Mine Act's penalty criteria by analogy to Creighton, the Judge found his purposeful conduct serious but reduced his individual penalty to $250 because he was retired, disabled, unemployed, and reported that a larger penalty would cause family hardship. The Judge ordered combined penalties of $19,750 and dismissal upon payment.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(3) and 820(i)
• Outcome: Highland was assessed $19,500, Creighton's proposed penalty was reduced to $250, and the case was dismissed upon payment.
• Key point: Individual discrimination penalties should account for deterrence and culpability while also considering the person's income, family obligations, and ability to pay.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

LAWRENCE
PENDLEY,

Complainant,

v.

HIGHLAND
MINING CO. AND JAMES CREIGHTON,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. KENT 2013-606-D

MSHA
Case No.: MADI-CD 2010-07 & 11

Mine:
Highland No.9

Mine
ID: 15-02709

DECISION ASSESSING
CIVIL PENALTIES

AGAINST HIGHLAND
MINING CO. AND JAMES CREIGHTON

AND ORDER TO PAY

This case is
before me upon a complaint of discrimination brought by Lawrence Pendley
(“Complainant”), a miner, against Highland Mining Co. and James Creighton,
(“Respondents”), pursuant to § 105(c)(3) of the Federal Mine Safety and Health
Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3).            

On February 12,
2015, I issued a decision finding that Pendley had been discriminated against
by the Respondents. Pursuant to Commission Rule 44(b), 29 C.F.R. §2700.44(b), a
copy of the decision was sent to the office of the Regional Solicitor for
assessment of civil penalty.[1] On May 27, 2015, the
Secretary Petitioned for assessment of civil penalties in the amount of
$20,000.00. The Respondent timely answered on June 26, 2015.

On August 1,
2015, James Creighton filed an Answer to the Petition for Assessment of Civil
Penalty. In his Answer, Creighton stated that he retired on September 21, 2013
after having been found disabled by the Social Security Administration. He
further stated that he has not worked any job since that time, and that due to
his retirement and disability, “a monetary penalty would have an extreme
hardship on my family and myself.” He moved this Court to reconsider the
monetary penalty assessed by the Secretary.

The Secretary
submitted a Brief in Support of Civil Penalty Assessment and Opposition to
Joint and Several Liability and Motion to Amend the Pleadings on August 27,
2015. In this pleading, the Secretary moved to amend the pleadings to clarify
that it was assessing a penalty of $19,500.00 against Highland Mining Co. and
$500.00 against James Creighton. It argued that the penalty assessed against
Highland was appropriate under the criteria set forth in Section 110(i) and
Commission precedent. However, since there was no case law concerning the
application of Section 110(i) criteria to individuals, it suggested applying
the criteria set forth under Section 110(c) and Commission case law
interpreting that Section. Applying the 110(c) analysis, the Secretary argued
that the penalty assessed against Creighton was appropriate.

On September 01,
2015, Highland submitted its brief opposing the penalty assessment. It argued
that the penalty assessed against Highland should be substantially reduced
because (1) the theory of liability was based upon the conduct of an hourly
employee, (2) the Complainant was not an employee, (3) the Complainant placed
himself in the area where Creighton was working, and (4) the mine is no longer
in operation.

For the
following reasons, I find that a civil penalty of $19,500.00 against Highland
is appropriate, but reduce the penalty assessed against Creighton to $250.00.

The Civil
Penalty of $19,500.00 Against Highland is Appropriate

The principles
governing the authority of the Commission’s administrative law judges to assess
civil penalties de novo for violations of the Mine Act are well established. Section
110(i) of the Mine Act delegates to the Commission and its judges the authority
to assess all civil penalties provided in the Act. 30 U.S.C. 820(i). The Act
delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§
815(a), 820(a). The Act requires that in assessing civil monetary penalties,
the Commission and its judges shall consider the six statutory penalty criteria
listed in §110(i) of the Act:

[1] the
operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith
of the person charged in attempting to achieve rapid compliance after
notification of a violation.

30 U.S.C. §
820(i). MSHA obo Perry Poddey v. Tanglewood Energy, Inc., 18 FMSHRC 1315
(Aug. 1996) (Applying 110(i) criteria to Respondent in discrimination case.)

In
the instant case, the Secretary seeks civil penalties from Highland in the
amount of $19,500.00. Given all of the evidence, as well as my findings
contained in the underlying Decision, I find that this penalty is appropriate.

In assessing a $19,500.00
penalty, I have given full consideration to the Section 110(i) criteria. With
regards to Highland’s history of previous violations, according to MSHA’s Mine
Data Retrieval System, in the 15 months prior to the violation date of March
30, 2009, Highland had 618 violations over 977 inspection days. Furthermore, in
addition to the instant case, Pendley filed two separate discrimination
complaints with the Commission, on February 25, 2010 and March 25, 2010, which
resulted in a finding of discriminatory acts by Highland.

In 2009, when
the acts relevant to this matter took place, the size of the operator’s
business can be considered large. The 2009 production totals for the mine were
3,676,615 tons of coal, and the controller produced 28,356,573 tons of coal.
These figures place both the mine and the operator in the largest category of
the tables provided in 30 C.F.R. §100.3(b).

In the instant
case, Highland exhibited negligence in its failure to act or cease interference
with Pendley’s rights. As detailed in the underlying Decision, Superintendent
Millburg knew of the contentious history between Pendley and Creighton, and was
informed of Creighton’s conduct, and he chose to do nothing to stop it. While
it is true that he watched security footage of the interaction, he did not take
the next step of instructing Creighton not to interfere with Pendley’s rights.

With regards to
the operator’s ability to continue in business, there is nothing in the record
that indicates that such a fine would adversely affect its ability to stay in
business.

I further find
that the gravity of the conduct by Highland was serious and supports the
Secretary’s proposed penalty. As described in more detail in the underlying
Decision, miners’ representatives serve an important function in ensuring a
safe and healthy environment for miners. I found significant interference with
Pendley’s rights by management—when Creighton’s conduct was ignored, as well as
withholding of materials from Pendley. I find that such conduct demonstrated a
disregard for miners’ representative rights, and were sufficiently serious to
support the Secretary’s proposed penalties. Furthermore, there was no evidence
of good faith abatement in the record.

Based on these
reasons and the underlying Decision, I find that a penalty of $19,500.00
against Highland is appropriate.

The Civil
Penalty of $500.00 Against Creighton is Reduced to $250.00

Though there is
no Commission caselaw concerning the criteria to use when assessing a penalty
against an individual in a discrimination case, the Commission has provided
guidance for assessing individual penalties in the 110(c) context:

The Supreme
Court has held that, in interpreting a single enactment, courts should give the
statute “the most harmonious, comprehensive meaning possible.” Weinberger v.
Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 631-32 (1973). Interpreting
sections 110(c) and 110(i) harmoniously, we hold that, in keeping with our
prior holding that “findings of fact on the statutory penalty criteria must
be made,” Sellersburg, 5 FMSHRC at 292 (emphasis added), Commission
judges must make findings on each of the criteria as they apply to individuals.
The criteria regarding the effect and appropriateness of a penalty can be
applied to individuals by analogy, and we find that such an approach is in
keeping with the deterrent purposes of penalties assessed under the Mine Act.
In making such findings, judges should thus consider such facts as an
individual's income and family support obligations, the appropriateness of a
penalty in light of the individual's job responsibilities, and an individual's
ability to pay. Similarly, judges should make findings on an individual's
history of violations and negligence, based on evidence in the record on these
criteria. Findings on the gravity of a violation and whether it was abated in
good faith can be made on the same record evidence that is used in assessing an
operator's penalty for the violation underlying the section 110(c) liability.

Sec’y v. Sunny
Ridge Mining Company, Inc. & Mitch Potter & Tracy Damron, employed by
Sunny Ridge Mining Company, Inc., 19 FMSHRC 254, 272, (Feb. 1997). The
goal of statutory harmony, deterrent purposes of penalties, and general
reasoning employed by the Commission in Sunny Ridge Mining, applies
equally to penalties assessed against individuals in the discrimination
context. Based on an application of the 110(i) criteria by analogy, I find that
the appropriate penalty assessed against Creighton is $250.00.

As
detailed in the underlying decision, as well as Judge Barbour’s decision in Sec’y
obo Pendley v. Highland Mining, 34 FMSHRC 3406 (Dec. 27, 2012) (ALJ), Creighton
had a long history of issues with Pendley that go back as far as 2005. These
allegations of discrimination included threats, destruction of property, and
physical violence. For one individual, this conduct represents a long history
of previous violations.

In
the underlying decision, I found that Creighton purposefully interfered with
Pendley’s rights as a miners’ representative. Therefore, he exhibited a total absence
of any standard of care. Furthermore, Creighton’s actions were intended to
interfere with Pendley’s walkaround rights, which are essential for ensuring
health and safety in the mine. Therefore, the level of gravity was high. And
there was no good faith abatement of the conduct by Creighton. Up until the
date of the hearing, Creighton continued to construct elaborate excuses for how
his conduct was appropriate.

However,
in spite of Creighton’s egregious conduct, there is one factor that counsels a
reduction in penalty. Creighton retired from mining on September 21, 2013, and
has not worked any job since that time. He has been found disabled by the
Social Security Administration. Creighton has stated that due to his limited
income, “a monetary penalty would have an extreme hardship on my family and
myself.” Based upon this information, I find that a $250.00 penalty would
reasonably serve as a deterrent.

Therefore,
it is hereby ORDERED that Respondent Highland Mining pay a civil penalty
in the amount of $19,500.00 for its violation of Section 105(c) of the Act, within
thirty (30) days of the date of this decision.[2]

It
is further ORDERED that Respondent James Creighton pay a civil penalty
in the amount of $250.00 for his violation of Section 105(c) of the Act, within
thirty (30) days of the date of this decision.[3]

Upon receipt of these
payments, this case is hereby DISMISSED.[4]

/s/ Kenneth R. Andrews

Kenneth R. Andrews

Administrative Law Judge

Distribution:

Dana L.
Ferguson, Esq., U.S. Dept. of Labor, Office of the Solicitor, 201 12th
St. South, Suite 500, Arlington, VA 22202

Tony Oppegard,
Esq., P.O. Box 22446, Lexington, KY 40522

Wes Addington,
Esq., Appalachian Citizens’ Law Center, 317 Main St., Whitesburg, KY 41858

Melanie J.
Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151
Beaumont Centre Circle, Suite 375, Lexington, KY 40513

Jack Creighton,
324 Bell Hite Drive, Morganfield, KY 42437

/mzm

[1] The decision
was sent to the wrong office of the Solicitor in error, which led to a delay in
the Secretary’s assessment of civil penalty.

[2] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390

[3] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390

[4] Following the
two prior Decisions on February 12, 2015 and September 21, 2015, this
constitutes the final Decision of the ALJ in this matter.