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

Plain-English summary

The Commission had remanded Walter Jackson's back-pay calculation after earlier Mine Act discrimination proceedings involving Mountain Top Trucking and related respondents. Judge Jerold Feldman questioned whether Jackson was available for the full period for which he sought lost wages because he had attended college full time and had worked for another company. The judge ordered the Secretary to obtain Jackson's certified college transcript, class schedule, employment records, pay stubs, and a sworn affidavit, and to explain his work availability and mitigation efforts. The order warned that failure to provide the information could result in dismissal of Jackson's discrimination complaint.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(2)
• Outcome: The judge deferred back-pay determination and ordered specific information about Jackson's education, employment, and availability for work.
• Key point: Back-pay relief requires a grounded showing that the complainant was available for work and made appropriate efforts to mitigate losses.

Full text (FMSHRC public release)

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                              June 25, 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 :

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                   ORDER REQUESTING INFORMATION
                 CONCERNING JACKSON S STUDENT STATUS

    This matter concerns the Commission s March 31, 1999, remand with respect to the

determination of the proper backpay and interest to be awarded to Walter Jackson. 21 FMSHRC
265 (March 1997). The period for relief has been determined to be the period immediately
following Jackson s discriminatory discharge on February 18, 1995, through June 21, 1996, the
date the respondents ceased hauling coal for Lone Mountain Processing, Inc. Supplemental
Decision, 19 FMSHRC 876, 878-79 (May 1997).

   To date, Jackson is seeking $41,973.29 backpay plus interest for the period of relief.

The backpay is calculated at eight round trip haulage loads driven each day from approximately
6:00 a.m. until 6:00 p.m. @ $13.00 per load, constituting $104.00 per day wages, or $520.00
wages per five day work week. Jackson s March 3, 1997, Statement of Back Pay, at p.3;
Jackson s June 4, 1999, Proposed Order for Relief at pp.1-2; Supplemental Decision,
19 FMSHRC at 878.

    In order to determine if Jackson is entitled to the backpay claimed it is necessary to

determine if Jackson was available for employment at all times during the relevant period for
relief. Although the Secretary s counsel and Jackson s private counsel (hereinafter referred
to as $counsel#) have asserted Jackson was actively looking for work during the February 1995
through June 1996 relief period, new evidence reflects, and Jackson now concedes, that he
was a full time student at Union College in Barbourville, Kentucky, beginning the fall semester
of 1995. Specifically, as discussed below, evidence indicates Jackson has stated he was a full
time student at Union College beginning in August 1995.

   Throughout this proceeding Jackson s counsel have represented that Jackson withdrew his

application for temporary reinstatement at the temporary reinstatement hearing on August 23,
1995, because he was employed at Cumberland Mine Service (hereinafter referred to as
$Cumberland#). In this regard, counsel have represented that Jackson was employed by
Cumberland from August 1, 1995, through October 10, 1995, earning $3,343.00 during this
period. Counsel have furnished a 1995 W-2 form issued by Cumberland Mine Service reflecting
Jackson earned $3,343.00 in 1995, although the W-2 form does not state the dates of
employment.

   In addition to representations concerning Jackson s 1995 Cumberland employment,

counsel have repeatedly represented that at all times during the relevant February 18, 1995,
through June 21, 1996, period, Jackson had been actively looking for work and that he was
available for work. For example, in the Decision on Liability in these matters, in order to
determine the appropriate relief, Jackson was specifically ordered to state any $periods when
Jackson was not available for employment# beginning on February 18, 1995, through the present
time. 19 FMSHRC 167, 204 (January 1997).

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Page 3

   Despite Jackson s full time college attendance at a time when he was seeking lost wages

for working twelve hours per day, Jackson s response to the Decision on Liability did not specify
any periods during which Jackson was unavailable for employment. March 3, 1997, Statement of
Backpay for Walter Jackson.

    As a further example of inquiries concerning Jackson s availability for employment, by

Order dated March 24, 1997, concerning the appropriate calculation for damages, Jackson was
requested to state what he did to look for work from October 11, 1995, after he reported he was
laid-off from Cumberland, through the June 21, 1996, relief period termination date. Jackson s
private Counsel responded:

   Although Jackson objects to the question, his answer is that he registered with the
   state unemployment agencies in both Kentucky and Virginia, followed up on
   potential job referrals made by those agencies, and otherwise applied for work at
   numerous businesses, both in the mining and non-mining fields .( Response of
   Walter Jackson to the Court s Order of 3/24/97, at p.3).

    While Jackson may have registered with the Virginia and Kentucky state unemployment

offices, there is no evidence that he ever advised unemployment officials that he was a full time
student. Thus, his reported eligibility for unemployment does not, in itself, evidence that he was
available for work.

   Finally, during these proceedings, counsel for the respondents sought to determine if

Jackson had been involved in a civil personal injury suit that was relevant to Jackson s ability to
work. Jackson s private counsel responded that Jackson received a favorable jury verdict on
January 5, 1996, in the U.S. District Court in London, Kentucky in a products liability law suit
brought against General Motors for an injury to Jackson s right eye in February 1991. However,
Jackson s counsel did not provide additional information and 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).
   (March 21, 1997, correspondence from Jackson s counsel to Judge Feldman).1


   1
       As discussed infra, although this statement was presumably made in good faith by




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Jackson s counsel, it was 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 under the mistaken 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). In fact, in this proceeding
Jackson had been specifically asked 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).

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Page 5

     As a consequence of the Commission s remand decision, a conference call with

respondents counsel Edward Dooley, the Secretary s counsel Donna Sonner, and
Jackson s private counsel Stephen Sanders, was conducted on April 22, 1999. At that time
Dooley stated he had information to submit concerning Jackson s availability for work.
Consequently, a filing schedule was established during the conference call for Dooley to
file this information and for Jackson s counsel to respond.

   On May 10, 1999, Dooley provided a report dated October 27, 1995, prepared by

Luca E. Conte, a Vocational Rehabilitation Consultant, summarizing a standard vocational
evaluation of Jackson that occurred on October 11, 1995, to determine the impact, if any, on
Jackson s alleged eye impairment on his ability to work. Resp. s May 10, 1999, Response
Concerning Jackson s Availability for Work, Ex. 1. The vocational evaluation was performed as
a consequence of Jackson s product liability suit docketed as Civil Action 92-112, U.S. Dist. Ct.,
Eastern District of Kentucky.

    Conte reported Jackson had received an Associate in Arts degree from Southeast

Community College in December 1991. Id. at p.2. 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. Id. 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. Id. at p.1.

     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.
Id. at p.2. Conte s report does not reflect that Jackson reported he was employed by Cumberland
Mine Service from August 1, 1995, until October 10, 1995, the day preceding the vocational
assessment.

   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. #
Id. Jackson stated he had previously failed a physical examination for a truck driving position at
Manalapan Mining Company although no further details were given. Id. at p.2-3. Although
Conte concluded Jackson retained $his pre-injury capacity to access the labor market,# Id. at p.3,
Jackson s statements to Conte reflect he was pursuing his education in order to change careers
because of his physical complaints.

    In response to the information provided by Dooley, Jackson s private counsel now admits

Jackson was a full time student at Union College beginning the fall semester of 1995. However,
specific details concerning the dates and extent of Jackson s college attendance were not
provided. June 4, 1999, Statement of Walter Jackson, p.5. The Secretary s response to Dooley s

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information did not even address whether Jackson had been a full time college student. Rather,
the Secretary asserted that the Commission s remand decision was $res judicata# on the issue of
mitigation. Secretary s May 24 1999, Response, p.2-3. Thus, Jackson s private counsel and the
Secretary have not provided details concerning the dates of Jackson s college attendance and the
times of his scheduled classes.

     The Commission s remand decision concluded Jackson s failure to seek to reopen his

temporary reinstatement application, regardless of his extended unemployment, could not be
considered as evidence of his failure to mitigate damages. 21 FMSHRC at 285. While the
Commission also concluded the record supported $the operator did not show a failure to mitigate
on the part of Jackson,# Id., the record before the Commission contained misleading statements
regarding Jackson s availability for work. Although the issue of Jackson s relief is not final,
misstatements concerning his 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. Consequently, the Secretary s claim of res judicata is
lacking in merit.

   While counsel may not previously have known about Jackson s full time college

attendance during a period they represented Jackson was actively looking for work, they know
now. 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).2

    This matter has been brought on behalf of Jackson by the Secretary pursuant to section

105(c)(2) of the Mine Safety and Health Act of 1977, 30 U.S.C. 815(c)(2). Consequently, while
the requested information and documentation can be obtained through consultation with
Jackson s private counsel, the Secretary primarily is responsible for presenting evidence in this
matter. Consequently, the Secretary is obliged to take the necessary remedial measures to correct
this record. Accordingly, the Secretary is ordered to provide the following information and
supporting documentation within 30 days of the date of this Order.

   2
      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).

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7

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                                        ORDER


           IT IS ORDERED that the Secretary shall request Walter Jackson to
   request Union College to send to the undersigned Administrative Law Judge a
   current Certified Copy of Jackson s college transcript. If Jackson fails to
   cooperate, the Secretary shall so state.

           IT IS FURTHER ORDERED that the Secretary specify Jackson s hours
   of attendance for each of the courses reflected on the transcript.

          IT IS FURTHER ORDERED that the Secretary state, with specificity,
   the days of the week and hours worked for each day reportedly worked at
   Cumberland Mine Service from August 1, 1995 through October 10, 1995, and
   the Secretary shall provide copies of Jackson s pay stubs issued during this period.

           IT IS FURTHER ORDERED that the Secretary provide a sworn
   affidavit form an official of Cumberland Mine Service detailing Jackson s dates of
   employment during 1995, his job duties, and the reason for his termination of
   employment.

           Jackson is seeking relief for daily lost wages that would have been earned
   from 6:00 a.m. until 6:00 p.m. during the period February 18, 1995, through
   June 21, 1996. IT IS FURTHER ORDERED that the Secretary explain, in
   detail, why she asserts Jackson was available for work each day during this entire
   period; what Jackson did to look for work each day during the period of his
   college attendance; and the impact of his PELL Grant and Stafford Loans on his
   decision whether or not to continue his full time college attendance.

     Failure by the Secretary to provide the requested information within 30 days of the date

of this Order may result in the dismissal of Jackson s discrimination complaint. Jackson s private
counsel may also submit any additional information, documentation or arguments for my
consideration within 30 days of the date of this Order.

                                         Jerold Feldman
                                         Administrative Law Judge




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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

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