Mountain Top Trucking Co., Inc., Elmo Mayes; William David Riley; Anthony Curtis Mayes; and Mayes Trucking Company, Inc.

Plain-English summary

The Commission had determined that Lonnie Bowling and Everett Darrell Ball were constructively discharged and had remanded their cases for relief. It also remanded Walter Jackson's case for recalculation of back pay. Judge Jerold Feldman awarded Bowling $26,557, Ball $17,237, and Jackson $32,642, plus interest, after deducting earnings from other employment where applicable. The order made the respondents jointly and severally liable and required payment within 40 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)
• Outcome: Back-pay awards were entered for Bowling, Ball, and Jackson, plus interest and applicable tax deductions.
• Key point: The remand order quantified relief after the Commission's constructive-discharge and mitigation rulings.

Full text (FMSHRC public release)

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, 10th FLOOR
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041

                     August 18, 1999

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-604-D
on behalf of LONNIE BOWLING, : MSHA Case No. BARB CD 95-11
Complainant :
v. : Mine ID No. 15-17234-NCX
: Huff Creek Mine
MOUNTAIN TOP TRUCKING CO., INC., :
ELMO MAYES; :
WILLIAM DAVID RILEY; :
ANTHONY CURTIS MAYES; and :
MAYES TRUCKING COMPANY, INC., :
Respondents :
:
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-605-D
on behalf of : MSHA Case No. BARB CD 95-11
EVERETT DARRELL BALL, :
Complainant : Mine ID No. 15-17234-NCX
v. : Huff Creek Mine
:
MOUNTAIN TOP TRUCKING CO., INC. :
ELMO MAYES; :
WILLIAM DAVID RILEY; :
ANTHONY CURTIS MAYES; and :
MAYES TRUCKING COMPANY, INC., :
Respondents :
:
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-613-D
on behalf of WALTER JACKSON : MSHA Case No. BARB CD 95-13
Complainant :
v. : Mine ID No. 15-17234-NCX
: Huff Creek Mine
:
MOUNTAIN TOP TRUCKING CO., INC., :
ELMO MAYES; and :
MAYES TRUCKING COMPANY, INC., :
Respondents :

                   DECISION ON REMAND

Before: Judge Feldman

 These discrimination matters  were  remanded  by  the

Commission on March 31, 1999. 21 FMSHRC 265. The initial
determination concluded that, Lonnie Bowling and Everett
Darrell Ball, upon being recalled to work on March 23, 1995,
after they had been discharged on March 7, 1995, in violation
of 105(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c), acted in concert in an effort to provoke
their discharges in order to perfect their discrimination
complaints. Decision on Liability, 19 FMSHRC 166 (January
1997). Fundamental to this conclusion was Bowling and Ball's
admitted refusals to work the 12 hour work shift they had
previously accepted as a condition of their employment. Id.
at 177, 194, 197; 21 FMSHRC at 275. In its remand decision,
the Commission determined, in a divided opinion, that the
evidence leads to only one conclusion - - that Bowling and
Ball were the victims of a constructive discharge. 21 FMSHRC
at 281. Consequently, the Commission remanded these matters
for a recalculation of the proper relief to be awarded for the
constructive discharges of
Bowling and Ball.

 With  respect  to Walter Jackson, the Commission

determined that Jackson's failure to seek reopening of his
temporary reinstatement application after a protracted
period without employment, alone, was not sufficient
evidence to conclude that Jackson had failed to mitigate
his damages. Id. at 285. Accordingly, the Commission
remanded this matter for a recalculation of the backpay and
interest due Walter Jackson.

 The pertinent period for calculating damages begins the

date of the initial discriminatory discharges. With respect
to Bowling and Ball, the beginning date is March 8, 1995.
With respect to Jackson, the beginning date is February 18,
1995. The period for relief ends on June 21, 1996, the date the
respondents ceased hauling coal for Lone Mountain Processing,
Inc. Supplemental Decision, 19 FMSHRC 876, 878-79 (May 1997).

 With  respect  to  the backpay issue, it has been

determined that the appropriate calculation for backpay is
eight loads per day @ $13.00 per load, constituting wages of
$104.00 per day, or $520.00 per week.[1] Id. at 878.

 As a result of the Commission's remand, on April 23, 1999,

an Order was issued requesting the complainants to submit
proposed orders for relief. The complainants were instructed
to specify the amount of lost wages less any deductions for
earnings from other employment, or less deductions for
periods during which time any complainant was not available
for employment. The complainants were also requested to
specify any incidental damages claimed.

 Lonnie Bowling and Darrell Ball

 On June 4, 1999, Lonnie Bowling filed a Proposed Order

for Relief with supporting documentation seeking gross back
wages of $35,152.00 for the period March 8, 1995, through
June 21, 1996, less earnings from other employment during
this period totaling $8,595.00. Consequently, Bowling seeks
net relief of $26,557.00, plus interest. Bowling is seeking
no additional incidental damages.

 On June 4, 1999,  Darrell  Ball  filed  a Proposed Order

for Relief with supporting documentation seeking gross back
wages of $35,152.00 for the period March 8, 1995, through
June 21, 1996, less earnings from other employment during
this period totaling $17,915.00. Consequently, Ball seeks
net relief of $17,237.00, plus interest. Ball is seeking no
additional incidental damages.

 On June 4, 1999, the respondents filed their Response to

the Order Requesting Proposed Orders for Relief. With respect
to Bowling and Ball, despite the Commission's decision in
this matter, the respondents contend that Bowling and Ball
are only entitled to backpay from March 8, 1995, until they
were called back to work on March 27, 1995.[2]

 The respondents have presented no evidence to rebut the

backpay awards sought by Bowling and Ball. Consequently, I
shall award Bowling and Ball backpay of $26,557.00, plus
interest, and $17,237.00, plus interest, respectively.

 Walter Jackson

 On June 4, 1999,  Walter  Jackson filed a Proposed Order

for Relief with supporting documentation seeking gross back
wages of $36,400.00 for the period February 18, 1995,
through June 21, 1996, less earnings from other employment
during this period totaling $3,758.00. Consequently,
Jackson seeks net relief of $32,642.00, plus interest.
Jackson is seeking no additional incidental damages.

 With  respect  to  Jackson, during  an  April 22, 1999,

conference call with the parties, the respondents claimed
they had information that Jackson had removed himself from
the workforce in August 1995 when he enrolled in Union
College as a full time student. In support of their
assertion, the respondents subsequently provided a copy of a
report dated October 27, 1995, prepared by Luca E. Conte, a
Vocational Rehabilitation Consultant. The vocational
evaluation, performed on October 11, 1995, as a consequence
of Jackson's product liability suit docketed as Civil Action
92-112, U.S. Dist. Ct., Eastern District of Kentucky, sought
to determine the impact, if any, of Jackson's alleged eye
impairment on his ability to work. Resp.'s May 10, 1999,
Response Concerning Jackson's Availability for Work, Ex. 1.
Conte reported Jackson had received an Associate in Arts
degree from Southeast Community College in December 1991.
Jackson reportedly told Conte that he began full time course
work at Union College as a first semester junior in August
1995 and that he was taking 12 credits as an education
major. Jackson reported his college costs were $4,100.00
per semester and that he was receiving a combination of a
PELL Grant and a Stafford loan to finance his education.
Jackson further reported the commute from his home to
college was approximately 50 to 70 miles, one way.

 During the course of the vocational assessment, Jackson

provided his employment history. He indicated he had worked
for Cumberland Mine Service from October 1986 through August
1988, for seven months through the fall of 1990, and from
June 1992 until October 1993.

 During the vocational evaluation Jackson complained of a

continuing right eye impairment and "loss [of] some vision in the left eye'"reportedly due to "overcompensation.'"
Jackson stated he had previously failed a physical
examination for a truck driving position at Manalapan Mining
Company although no further details were given. Although
Conte concluded Jackson retained "his pre-injury capacity to
access the labor market," Jackson's statements to Conte
reflect he may have been pursuing his education in order to
change careers because of his physical complaints.

 In  response  to  the  information  provided  by  the

respondents concerning Jackson's availability for employment,
Jackson now admits he was a full time student at Union
College beginning the fall semester of 1995. Additional
information furnished by Jackson, including an affidavit
filed on July 30, 1999, reflects Jackson was enrolled from
August 29 through December 13, 1995, as a student taking
12 credits at Union College in Barbourville, Kentucky.
Jackson's classes required his attendance on Tuesdays and
Thursdays.[3] In his affidavit, Jackson stated that he
would have stopped attending college if he had found a job
that required him to do so.[4] Jackson further stated that
he did not return to Union College in the spring semester
of 1996 because he could not afford to continue with his
education.

 The  Secretary  argues the Commission's decision is res

judicata on the issue of whether Jackson failed to mitigate
his damages. The Commission's decision did not conclude
that Jackson did, in fact, make efforts to mitigate his
damages. Rather, the Commission concluded that the record
evidence did not "show a failure to mitigate damages on the
part of Jackson." 21 FMSHRC at 284-85. However, the record
considered by the Commission failed to reflect Jackson's
full time college attendance because Jackson was not
forthcoming about his college studies despite the fact that
the initial decision on liability explicitly directed Jackson
to disclose any "periods when Jackson was not available for
employment." 19 FMSHRC at 204.

 Moreover,  during  these  proceedings,  Jackson  was

specifically asked by the Administrative Law Judge if
he had "been a party in any legal action or claim involving
allegations of physical or mental impairment." Order
Requesting Comments on the Calculation Period for Damages
(March 24, 1997). Jackson filed his response to the Order
on April 22, 1997, asserting that Jackson had not
claimed any physical impairment and referred to a portion
of a March 21, 1997, correspondence from his counsel to
Judge Feldman, that stated:

 Mr.  Jackson did not file a disability claim  regarding
 his eye  injury,  nor did it affect his ability to work
 during  the  backpay   period   in   this   proceeding.
 Therefore,  the  matter  is  irrelevant  to my client's
 claim for backpay herein (emphasis added).

 Although this statement was presumably made in good faith

by Jackson's counsel, it is contrary to information provided
by Jackson in his October 11, 1995, vocational evaluation,
and this statement apparently is not true. This misinformation
prevented the respondents from pursuing relevant evidence with
regard to Jackson's unpublished civil suit and contributed
to the Commission striking evidence concerning Jackson's
civil suit in an apparent belief that issues concerning
representations made by Jackson in his civil suit had
previously not been raised by the respondents. Commission
Order, July 27, 1998 (unpublished).

 Thus,  consideration  of Jackson's college attendance is

not precluded by the doctrine of res judicata. Moreover,
misstatements concerning Jackson's availability for
employment could be a basis for reopening the issue of
Jackson's relief under Rule 60(b) of the Federal Rules of
Civil Procedure even if this matter had become a final
decision.[5] In addition, Counsel have an obligation to
correct any misleading evidence and misstatements presented
in Jackson's behalf. See Model Rules of Professional Conduct,
Rule 3.3(4).[6] Consequently, the Secretary's request for
interlocutory review with regard to the issue of the
propriety of the admission of evidence into this proceeding
concerning Jackson's student status is denied.

 I am  concerned about  the  apparent inconsistencies in

Jackson's position, i.e., asserting in his civil suit that
his decision to attend college was related to an eye impairment
that interfered with employment as a truck driver -- while
asserting in this proceeding that he was looking for work
as a truck driver, and that he would have left college to
obtain full time employment. Although I have concluded
Jackson's full time student status is relevant evidence that
should be considered, I am constrained by the Commission's
remand decision that "limited [me] to a recalculation of
backpay and interest owed Jackson consistent with [the
Commission's] conclusion that it was not shown that Jackson
failed to mitigate his damages." 21 FMSHRC 285. Absent
further direction from the Commission, I construe the
Commission's decision as a finding that Jackson was available
for work. Accordingly, I shall award the net backpay
of $32,642.00, plus interest, sought by Jackson in this
matter.

 As a final matter, the respondents' motion to compel

answers to its interrogatories, that were not material
to the issue of Bowling and Ball's damages, is denied.
Additionally, in view of the denial of the Secretary's
request for interlocutory review, the respondents' August 12,
1999, request for an extension of time to respond to the
Secretary's interlocutory review request is also denied.

  ORDER

 In view of the above, consistent with the determination

with respect to joint liability in the Decision on Liability
issued in these matters on January 23, 1997, IT IS ORDERED
that the respondents are jointly and severally liable for:

 (1)  Payment  of  $26,557.00, plus interest to the date
 of payment, less applicable Federal and State and local
 tax deductions, if any, to Lonnie Bowling, constituting
 payment for net lost  wages from March 8, 1995, the day
 following Bowling's discriminatory  discharge,  through
 June 21, 1996.

 (2)   Payment of $17,237.00, plus interest to the  date
 of payment, less applicable Federal and State and local
 tax  deductions,  if  any,  to  Everett  Darrell  Ball,
 constituting  payment  for net lost wages from March 8,
 1995,   the   day   following   Ball's   discriminatory
 discharge, through June 21, 1996.

 (3)  Payment of $32,642.00,  plus  interest to the date
 of payment, less applicable Federal and State and local
 tax deductions, if any, to Walter Jackson, constituting
 payment for net lost wages from February  18, 1995, the
 day   following   Jackson's  discriminatory  discharge,
 through June 21, 1996.

 Interest shall be  calculated  in  accordance  with  the

formula adopted in the Commission's decision in Secretary of
Labor o/b/o Bailey v Arkansas-Carbona Company, 5 FMSHRC
2042, 2049-52 (December 1983). IT IS FURTHER ORDERED that
payment to the above named individuals shall be made within
40 days of the date of this decision.

                          Jerold Feldman
                          Administrative Law Judge

Distribution:

Donna E. Sonner, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215-2862
(Certified Mail)

Stephen A. Sanders, Esq.,
Mine Safety Project of the Appalachian Research & Defense
Fund Of Kentucky, Inc.,
28 North Front Street,
Prestonsburg, KY 41653
(Certified Mail)

Edward M. Dooley, Esq.,
P.O. Box 97,
Harrogate, TN 37752
(Regular and Certified Mail)

Edward M. Dooley, Esq.,
512 Richmond Circle,
Fairhope, AL 36532
(Regular and Certified Mail)

/mh

FOOTNOTES

 [1]: Backpay of $104.00 per day is calculated based on an

average delivery of eight truck loads that occurred during the
course of the normal 12 hour work day, although, as noted
infra, both Bowling and Ball refused to work more than 10
hours when they were called back to work by Mountain Top
Trucking on March 23, 1995.

 [2]: The evidence reflects Bowling and Ball were called

back to work effective March 23, 1995.

 [3]: The  consolidated  temporary  reinstatement  hearing

concerning Jackson's discrimination complaint was convened on
August 23, 1995, in Pineville, Kentucky. Jackson did not appear
at the hearing. Instead, the Secretary's counsel moved to
withdraw Jackson's temporary reinstatement application because
Jackson reportedly was working. 17 FMSHRC 1695, 1696 (October
1995). I am troubled by Jackson's full time college attendance
on Tuesdays and Thursdays that began on August 29, 1995, only
five days after Jackson's temporary reinstatement application
was withdrawn. Jackson's college attendance would have
precluded reinstatement at his former position at Mountain
Top Trucking that required his work attendance from
approximately 6:00 a.m. until 6:00 p.m., Mondays through
Fridays.

 [4]:  Jackson had a job opportunity that interfered with

his college attendance and required him to leave college

• • reinstatement at Mountain Top Trucking.

  [5]: In relevant part, Rule 60(b) provides:

  Mistakes, Inadvertence; Excusable Neglect; Newly
  Discovered Evidence; Fraud, Etc. On motion and upon
  such terms as are just, the court may relieve a party .
  . . from a final judgment, order, or proceeding for the
  following reasons:
  . . . (2) newly discovered evidence which by due
  diligence could not have been discovered . . . (3)
  fraud (whether heretofore denominated intrinsic or
  extrinsic), misrepresentation, or other misconduct of
  an adverse party; . . . (6) any other reason justifying
  relief from the operation of a judgment . . . .

  [6]: Upon ascertaining that material evidence is false,
  the lawyer should seek to persuade the client that the
  evidence should not be offered or, if it has been
  offered, that its false character should immediately be
  disclosed. If the persuasion is ineffective, the
  lawyer must take reasonable remedial measures. . . .
  [T]he alternative is that the lawyer cooperate in
  deceiving the court, thereby subverting the truth
  finding process which the adversary system is designed
  to implement. Model Rules of Professional Conduct Rule
  3.3 cmt. (1995).