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

Plain-English summary

The Commission reviewed a remand decision awarding truck driver Walter Jackson $32,642 in net backpay plus interest after finding that his discharge violated the Mine Act's discrimination provision. The operators argued that newly submitted evidence about Jackson's college attendance, prior employment, and a separate eye-injury lawsuit could affect whether he had mitigated his damages. The Commission held that the evidence was relevant and that the ALJ needed to resolve conflicting evidence about Jackson's availability for full-time work, so it vacated the damages award and remanded for further proceedings. One Commissioner dissented, concluding that the operators had already had enough opportunity to obtain the evidence and that the award should be affirmed.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(1)
• Outcome: The judge's damages award was vacated, and the case was remanded for further proceedings.
• Key point: Newly developed evidence relevant to mitigation must be admitted and weighed by the ALJ when the existing record does not resolve the backpay issue.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                   November 30, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of WALTER JACKSON :
:
v. : Docket No. KENT 95-613-D
:
MOUNTAIN TOP TRUCKING :
COMPANY, INC., ELMO MAYES, :
WILLIAM DAVID RILEY, ANTHONY :
CURTIS MAYES, and MAYES :
TRUCKING COMPANY, INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                       DECISION

BY: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners

    In this discrimination proceeding, arising under the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), Administrative Law Judge Jerold
Feldman issued a Decision on Remand awarding relief to, among others,1 truck driver Walter
Jackson. 21 FMSHRC 913 (Aug. 1999) (ALJ). On August 30, 1999, Mountain Top Trucking
Company (“Mountain Top”), Mayes Trucking Company, Elmo Mayes, Anthony Curtis Mayes,
and William David Riley (collectively the “operators”), filed a motion for relief from the judge’s
Decision on Remand. After considering filings in opposition from both the Secretary of Labor
and Jackson, the Commission treated the operators’ motion as a petition for discretionary review,
directed review, and stayed briefing. For the reasons that follow, we vacate the judge’s damages
award and remand the case for further proceedings consistent with this opinion.

   1
      The Commission has since ordered severance of the discrimination dockets of two

other truck drivers that had been consolidated with this proceeding. See Secretary of Labor on
behalf of Bowling v. Mountain Top Trucking Co., 21 FMSHRC 967 (Sept. 1999).

Page 2

                                               I.

                            Factual and Procedural Background

    Following an evidentiary hearing, the judge determined that the operators’ discharge of

Jackson on February 17, 1995, violated Mine Act section 105(c)(1).2 19 FMSHRC 166, 181-86
(Jan. 1997) (ALJ). The judge subsequently ordered the parties to confer, in the hope that they
could stipulate to the amount of backpay the operators owed Jackson as part of his relief. Id. at
204.

     When the parties could not agree on the amount of backpay Jackson was owed, Jackson,

pursuant to the judge’s order (id. at 205) and through private counsel, filed a Statement of
Backpay.3 Thereafter, he provided copies of his tax returns for 1995 and 1996. As the result of a
further oral request by the operators and a conference call with the judge, Jackson’s private
counsel, by letter dated March 21, 1997, addressed the source of interest income reflected on
Jackson’s 1996 tax return. This item was described as interest on certificates of deposit Jackson
had purchased in 1996 with the proceeds from a judgment he received that year in a product
liability suit he had filed against General Motors Corporation. The suit stemmed from an eye
injury Jackson suffered in February 1991 when a wrench broke while he was changing a flat tire
on his pickup truck. In the letter Jackson’s counsel further stated that “Jackson did not file a
disability claim regarding his eye injury, nor did it affect his ability to work during the backpay

   2
       Section 105(c)(1) provides in part:

                    No person shall discharge or in any manner discriminate
            against or cause to be discharged or cause discrimination against or
            otherwise interfere with the exercise of the statutory rights of any
            miner . . . because such miner . . . has filed or made a complaint
            under or related to [the Act], including a complaint notifying the
            operator . . . of an alleged danger or safety or health violation in a
            coal or other mine, . . . or because of the exercise by such miner . . .
            of any statutory right afforded by [the Act].

30 U.S.C. § 815(c)(1).
3
Pursuant to the judge’s request (19 FMSHRC at 205), the Statement addressed why
Jackson had withdrawn his application for temporary reinstatement to his position with the
operators prior to the August 1995 hearing on the application. According to the Statement,
Jackson had obtained “full-time employment with Cumberland Mine Service” (“Cumberland”),
and worked from August 1, 1995, until October 10, 1995, when he was laid off by Cumberland.
Statement of Backpay for Walter Jackson (March 3, 1997), at 2. His compensation for those 10
weeks was $3,343. Id.

                                               2

Page 3

period in this proceeding. Therefore, the matter is irrelevant to my client’s claim for backpay
herein.”

    The judge subsequently ordered Jackson to supply certain additional information and the

parties to address certain legal issues. See 19 FMSHRC 661 (Mar. 1997) (ALJ). Most of the
order addressed Jackson’s obligation to mitigate his damages, and questioned the extent to which
that obligation was satisfied in light of Jackson’s withdrawal of his temporary reinstatement
application and later layoff from Cumberland. See id. at 663-64. However, in the fifth of the
seven enumerated requests for information, the judge stated:

           (5) The respondents have alleged that Jackson may have been
           party in a pertinent disability proceeding. Has Jackson been a party
           in any legal action or claim involving allegations of physical or
           mental impairment? If yes, identify or describe the legal action or
           claim, provide the date of such actions or claims, and provide the
           status or outcome.

Id. at 664.

   The Secretary responded by letter dated April 18, 1997, to the judge’s order, but deferred

to Jackson’s counsel on this request. Through counsel, Jackson filed a pleading in response to
the order. He stated that “[t]he answer to this question is ‘No[,]’” but also went on to reference
his March 21, 1997, letter to Judge Feldman, in which the genesis of Jackson’s suit against
General Motors was described. Resp. of Walter Jackson to Court’s Order of March 24, 1997, at
2-3.

   The operators replied to the submissions of the Secretary and Jackson. They did not

address the section of the judge’s order regarding legal claims involving allegations of
impairment. Instead, they took the position that Jackson forfeited the right to further backpay
upon the withdrawal of his temporary reinstatement application. Reply to Complainants’ Resp.
to Order of March 24, 1997, at 2-3.

   In his decision on relief, the judge did not address this part of his earlier order. See 19

FMSHRC 875 (May 1997) (ALJ). He determined that the maximum amount of time for which
Jackson could be awarded backpay was February 18, 1995, the day after his discharge from
Mountain Top, until June 21, 1996, the termination date of the operators’ haulage contract which
necessitated the employment of drivers such as Jackson. Id. at 878-79 & n.2. Focusing solely on
Jackson’s failure to attempt to reopen his temporary reinstatement application, the judge held that
Jackson had failed to mitigate his damages, and consequently awarded him backpay only through
December 9, 1995, which was 60 days subsequent to Jackson’s layoff from Cumberland. Id. at
882-83.

                                             3

Page 4

     The Commission granted petitions for review of the judge’s decision filed by the

Secretary and Jackson. The Commission subsequently reversed the judge’s failure-to-mitigate
determination on the ground that the Mine Act does not require a discriminatee to seek temporary
reinstatement. 21 FMSHRC 265, 284 (Mar. 1999). Reviewing the evidence that had been
submitted to the judge, we further concluded that the only record evidence upon which a finding
of a failure to mitigate by Jackson could rest was his failure to seek reopening of his
reinstatement application. Id. Consequently we held that the only conclusion that the record
before us could support was that the operators did not meet their burden of establishing a failure
to mitigate on the part of Jackson, and we limited remand to a recalculation of backpay and
interest owed Jackson, consistent with our conclusion that it was not shown that Jackson failed to
mitigate his damages. Id. at 284-85.

     After the case was returned to him, the judge held a telephone conference with the parties.

Unpublished Order dated April 23, 1999, at 2. Operators’ counsel stated he had information he
wished to submit regarding Jackson’s availability to work during the backpay period. Id. The
judge established a procedure for submission of the information and comment by the parties on
it. Id. at 2-3.

     The operators submitted to the judge copies of the following documents: (1) the April

1995 Unemployment Compensation Report that resulted from Jackson’s claim for
unemployment benefits following the end of his employment relationship with Mountain Top;
(2) October 1992 answers to interrogatories Jackson provided in his product liability lawsuit; (3)
excerpts from a June 1994 deposition Jackson gave in that lawsuit; (4) an October 1995
vocational assessment report of Jackson conducted in connection with the suit which discusses,
among other things, Jackson’s college attendance between August and December 1995 and his
ability to drive a truck; and (5) the January 1996 jury verdict form from the suit, which contains
both handwritten amounts detailing the award to Jackson as well as the printed figure of
$12,043.00, identified as “[l]oss of wages and income sustained to date directly by reason of the
injuries[.]” See Resp. to Order Requesting Information Concerning Jackson’s Availability for
Work for the Period February 18, 1995 through June 21, 1996 (hereinafter “Operator’s Resp. to
Judge’s Order”), Exs. I-V.4 In response, both the Secretary and Jackson argued to the judge that

   4
       Copies of documents 1, 4, and 5 were attached to the briefs the operators had earlier

submitted to the Commission. (The operators filed two briefs. We cite herein to the brief they
filed in response to the Secretary’s brief.) The operators stated that the documents supported
their arguments that Jackson was not discriminated against for engaging in a protected work
refusal, and, that by withdrawing his temporary reinstatement application, he forfeited any right
to backpay beyond that point. Op. Br. at 13-16 & Addendums 1-2. We held that, because the
three documents were not part of the record before the judge, they could not properly be
considered by the Commission on review. 21 FMSHRC at 284-85 n.25 (citing Consolidation
Coal Co., 18 FMSHRC 1541, 1544-45 (Sept. 1996)). Consequently, we granted the Secretary’s
motion to strike the documents and all references thereto in the operators’ briefs (see
Unpublished Order dated July 27, 1998, at 1-2), and did not consider them in reaching our

                                             4

Page 5

the Commission’s statement that “the only conclusion that the record can support is that the
operator did not show a failure to mitigate on the part of Jackson” was res judicata on that issue.
S. Resp. to Judge’s Order at 2-3; Jackson Resp. to Operator’s Resp. to Judge’s Order at 3.
Jackson also submitted a proposed order for relief predicated on his assertion that he was
available for work at all times during the backpay period. Proposed Order for Relief for Walter
Jackson (June 4, 1999).

    The judge then ordered the Secretary to provide information regarding the period in 1995

that Jackson was a college student and an employee of Cumberland. 21 FMSHRC 693, 698
(June 1999) (ALJ). The judge also ordered the Secretary to further explain her contention that
Jackson was available to work each weekday of the backpay period for 12 hours each day. Id.
While both the Secretary and Jackson moved the judge to reconsider his decision, the Secretary
provided the requested information and explanation, and Jackson submitted a 1-page affidavit
stating that he sought employment while in college and would have stopped attending college if
he had found a job which required him to do so. S. Mot. for Recons. at 2-3; Jackson Resp. at 2-6
& Aff. of Walter Jackson.

     In his decision on remand on the backpay owed Jackson, the judge found that in the

record originally before him and the Commission, Jackson had not been forthcoming regarding
his college attendance, despite the judge’s request that Jackson “disclose any ‘periods when [he]
was not available for employment.’” 21 FMSHRC at 917 (quoting 19 FMSHRC at 204). The
judge also found that information provided by Jackson in the vocational assessment contradicted
the statement of Jackson’s private counsel in his letter of March 21, 1997, that the product
liability lawsuit was irrelevant to the issue of backpay before the judge at that time. Id.
According to the judge, the misleading information in that letter prevented the operators from
pursuing relevant evidence regarding the suit and contributed to the Commission’s striking such
evidence when the operators attached it to their briefs. Id. The judge concluded by stating:

                   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 that 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.” Absent further direction from the
           Commission, I construe the Commission’s decision as a finding

decision on mitigation of damages.

                                              5

Page 6

           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.

Id. at 918.

                                            II.

                                        Disposition

    In their motion for relief from the judge’s decision, the operators contend that the

information provided by counsel for Jackson in March 1997 was not truthful or forthcoming,
contributed to a delay by the operators in obtaining evidence from Jackson’s civil suit, and
influenced the Commission to strike evidence concerning that civil suit in the belief that the
issues concerning Jackson’s representations in that suit had not been raised before the judge. Op.
Mot. at 3. The operators submit that their “newly discovered” evidence is probative on a number
of matters relevant to whether Jackson was available for full-time employment during the
backpay period, and request remand to the judge for further consideration of the issue. Id. at 3-4.

    The Secretary opposes the relief requested by the operators, contending that the evidence

establishes that Jackson was available for work while he was in college. S. Opp’n at 1-3.
According to the Secretary, the judge should not have ordered the development of further
evidence he considered relevant to the mitigation issue, and his analysis of the evidence contains
errors. Id. at 3-5 & n.4. Jackson joins in the Secretary’s opposition, and specifically denies that
he and his counsel submitted false information to the judge at any time. Jackson Resp. at 4-6.
Jackson contends that the operators had adequate opportunity prior to the judge’s original
decision on damages to obtain all of the evidence they claim is “newly discovered.” Id. at 4-5.
According to Jackson, nothing in the record supports the operator’s argument that Jackson was
not available for full-time employment as a truck driver during the backpay period. Id. at 5.

     As we discussed in our earlier decision, the Commission recognizes that a backpay award

“may be reduced in appropriate circumstances where an employee incurs a ‘willful loss of
earnings.’” 21 FMSHRC at 284 (quoting Secretary of Labor on behalf of Dunmire v. Northern
Coal Co., 4 FMSHRC 126, 144 (Feb. 1982)) (other citations omitted). Under the duty to
mitigate damages from discrimination, “a discriminatee is not entitled to back pay to the extent
that he fails to remain in the labor market, refuses to accept substantially equivalent employment,
fails diligently to search for alternative work, or voluntarily quits without good reason.” NLRB v.
Madison Courier, Inc., 472 F.2d 1307, 1317 (D.C. Cir. 1972) (citations omitted) (emphasis in
original).5

    5
     “Because the Mine Act’s provisions for remedying discrimination are modeled largely

upon the National Labor Relations Act, [the Commission] ha[s] sought guidance from settled
cases implementing that Act in fashioning the contours within which a judge may exercise his

                                             6

Page 7

    The Commission’s earlier statement that the only conclusion that could be drawn from

the record is that the operators did not establish that Jackson failed to mitigate his damages was
based on the record as it was developed before the judge. See 21 FMSHRC at 285. We note that
the record at that time was then devoid of evidence on the issue of mitigation. Instead it
contained representations of the various counsel on Jackson’s efforts at obtaining employment
during the backpay period, and what those efforts meant with respect to his entitlement to
backpay. Consequently, once we determined that the evidence the judge found dispositive on the
issue of mitigation — Jackson’s failure to seek reopening of his temporary reinstatement
application — did not resolve the issue, we were left with no evidence to consider. As the
burden of proving a failure to mitigate is on the operator (21 FMSHRC at 285 (citing Metric
Constructors, 6 FMSHRC at 233)), and there was nothing in the record to support the conclusion
that Jackson failed to mitigate his damages, we so held, and limited remand to a calculation of
the backpay and interest owed Jackson. Id.

    According to the judge, however, the operators, in a teleconference that was held while

the judge was originally determining damages, raised the issue of whether Jackson had always
remained in the labor market during the backpay period. Moreover, according to the judge, the
representations of Jackson’s counsel regarding the nature of Jackson’s civil suit prevented the
operators from obtaining evidence from that suit relevant to the issue of whether Jackson could
have returned to work as a full-time truck driver. Both the Secretary and Jackson oppose
consideration of the documents, relying on our earlier refusal to consider some of the civil suit
documents when the operators attached them to their briefs. S. Opp’n at 2-3; Jackson Resp. at 3-

4. They read too much into our decision, however, as we refused to consider the documents only
   because they had not been before the judge when he made his original decision. See 21
   FMSHRC at 284-85 n.25. The Secretary is therefore mistaken in suggesting that the operators
   should have requested the Commission to reconsider its decision to strike the documents before
   submitting them to the judge. See S. Opp’n at 5. Because the documents had yet to be admitted
   into the record by the judge, the Commission could not have considered them, regardless of their
   relevance.

   While the proceedings on remand in which the judge requested, received, and reviewed
   

   the documents may have exceeded the literal terms of our remand order, we cannot deny the
   relevancy of the information contained in the documents to the questions of whether and to what
   extent Jackson was available to work during the backpay period. There is also evidence that
   supports the judge’s conclusion that the information provided by Jackson’s counsel was not as
   accurate as he had a right to expect. The judge specifically asked whether Jackson has “been a
   party in any legal action or claim involving allegations of physical or mental impairment.” 19
   FMSHRC at 664 (emphasis added). The documents from Jackson’s civil suit show that in that

discretion in awarding back pay.” Metric Constructors, Inc., 6 FMSHRC 226, 231 (Feb. 1984),
aff’d, 766 F.2d 469 (11th Cir. 1985).

                                            7

Page 8

case he sought compensation for lost wages and impairment of his earning capacity,6 and
eventually was compensated for, among other things, “[l]oss of wages and income sustained to
date directly by reason of the injuries[.]” Resp. to Judge’s Order, Ex. V. Jackson’s response
through counsel that “[t]he answer to . . . question [No. 5] is ‘No’” was thus not accurate. See
Resp. of Walter Jackson to Court’s Order of March 24, 1997, at 2-3. In light of this discrepancy,
as well as the earlier statement of Jackson’s counsel that the civil suit was irrelevant to Jackson’s
claim for backpay, we will not find, as the Secretary and Jackson request (S. Opp’n at 6-7;
Jackson Resp. at 4-6), that the operators’ failure to obtain the probative documents from
Jackson’s civil suit while the proceeding was originally before the judge was due to the
operators’ lack of diligence.

    The Secretary and Jackson are correct that some of the information contained in the civil

suit documents is contradicted by evidence elsewhere in the record. See S. Opp’n at 4-5 n.4;
Jackson Resp. at 5. However, it is up to the judge to reconcile the conflicting evidence.
Consequently, we direct him to do so on remand and resolve the question of whether and to what
extent Jackson was available for employment during the backpay period.

    In addition, Jackson’s status as a college student does not necessarily mean that he must

be found to have failed to mitigate his damages during the time he was enrolled in college. The
question is whether Jackson sought full-time employment during that time, and would have
accepted employment and quit college had a job become available. The burden of proof is on the
operators to show that he either did not seek such employment or would not have quit college if
it had become available. See Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1274 (4th Cir.
1985). On remand, the judge will have the opportunity to hear Jackson’s testimony on this and
other issues relevant to the mitigation question.7

   6
     In his October 1992 answer to an interrogatory regarding the claim in paragraph 10 of

his product liability complaint that he had suffered impairment of his power to earn money due to
the accident, Jackson stated that he had suffered permanent loss of vision in his right eye, was
unable to pass any type of pre-employment physical examination due to the damage to his vision,
and thus was prohibited from any type of work as a truck driver or other work requiring visual
acuity. Resp. to Judge’s Order, Ex. IV at 1, 3. In his June 1994 deposition he again stated that
he believed he would be unable to pass a pre-employment physical (id., Ex. II at 48), and,
according to the October 1995 vocational assessment report, Jackson claimed to have failed a
physical with Manalapan Mining Company for a driving position. Id., Ex. I at 2-3.
7
The judge never evaluated the credibility of the 1-page affidavit Jackson submitted
regarding his college attendance and his search for employment. Given the conflicting evidence,
we believe a hearing on the record is necessary for the judge to best decide the mitigation
question.

                                              8

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                                          III.

                                      Conclusion

    For the foregoing reasons, we vacate the judge’s damages award and remand this case for

further proceedings consistent with this opinion.

                                        Mary Lu Jordan, Chairman




                                        James C. Riley, Commissioner




                                        Theodore F. Verheggen, Commissioner




                                        Robert H. Beatty, Jr., Commissioner




                                           9

Page 10

Commissioner Marks, dissenting:

   Because I conclude that the judge’s damages award in favor of truck driver Walter

Jackson should be affirmed, I dissent.

    The operators bear the burden of proving a failure to mitigate damages in a discrimination

case under the Mine Act. See Metric Constructors, Inc., 6 FMSHRC 226, 233 (Feb. 1984), aff’d,
766 F.2d 469 (11th Cir. 1985). In January 1997, the judge determined that the operators’
discharge of Jackson on February 17, 1995, violated Mine Act section 105(c)(1) and ordered the
parties to confer on the issue of appropriate relief. 19 FMSHRC 166, 181-86 (Jan. 1997) (ALJ).
In May 1997, the judge issued his supplemental decision and final order awarding back pay relief
to Jackson. 19 FMSHRC 875, 883 (May 1997) (ALJ). Prior to this damages decision, Jackson,
through counsel’s letter of March 21, 1997, informed the operator and the judge of the lawsuit
that Jackson filed in 1991 against General Motors. The operators with any measure of due
diligence could have sought, prior to the May 1997 damages decision, all the information that it
now claims is pertinent to the mitigation issue.1 I refuse to let this case drag on and penalize
Jackson, the discriminatee, when the operators failed in their mitigation burden more than two
years ago.

    This case has been pending before the Commission and its judges for nearly five years.

The operators’ recent maneuvering has succeeded in prolonging its responsibility to remedy its
unlawful discrimination against Jackson. In the interest of justice and judicial economy, I would
affirm the judge’s damages award in favor of Jackson.

                                           Marc Lincoln Marks, Commissioner




   1
     For example, at the time that counsel for Mountain Top was first made aware of

Jackson’s eye injury in March 1997, he could have easily discovered the October 27, 1995, letter
from the vocational rehabilitation consultant that was prepared in the course of the tort litigation,
which stated: “Mr. Jackson is currently a full-time student at Union College . . . .” Resp. to
Judge’s Order, Ex. I at 2.

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Distribution

Jerald S. Fingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Stephen A. Sanders, Esq.
Appalachian Research & Defense Fund
Of Kentucky, Inc.
28 North Front Street
Prestonsburg, KY 41653

Edward M. Dooley, Esq.
512 Richmond Circle
Fairhope, AL 36532

Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

                                      11