Scott D. McGlothlin v. Dominion Coal Corporation

Plain-English summary

An earlier liability ruling found that Dominion Coal interfered with Scott McGlothlin's Part 90 pay-protection rights by reducing his pay after he sought protected status. The parties then agreed on compensation and attorney fees but asked to dismiss all claims with prejudice under a general release. Judge Jerold Feldman denied the motion because the settlement would effectively erase the adjudicated liability finding, shield Dominion from its discrimination history, and undermine the Secretary's related $12,500 civil-penalty case. He explained that parties may settle relief and penalties subject to Commission approval, but they cannot privately vacate a judicial liability determination. The Judge ordered the parties to submit joint or separate relief petitions with back-pay calculations and detailed attorney-fee records within 21 days.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c) and 820(k)
• Outcome: The joint motion to dismiss was denied, and the parties were ordered to file relief proposals within 21 days.
• Subsequent review: The Commission later reviewed the relief phase in va-2014-233-d-commission.
• Key point: A post-liability settlement may resolve relief, but the parties cannot use a general release to erase an adjudicated Mine Act discrimination violation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

October 21, 2015

SCOTT D. MCGLOTHLIN,

Complainant,

v.

DOMINION COAL CORPORATION,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. VA 2014-233-D

NORT-CD-2013-04

Mine: Dominion No. 7

Mine ID: 44-06499

ORDER DENYING
PARTIES’ JOINT MOTION TO DISMISS

Before:            Judge Feldman

This matter is before me based on a Complaint of
Discrimination brought by       Scott D. McGlothlin against Dominion Coal
Corporation (“Dominion”), pursuant to section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (2006) (“Mine
Act” or “the Act”). The parties filed cross-motions for summary decision as
there were no outstanding issues of relevant material facts.

A consolidated Decision Granting Complainant’s
Motion for Summary Decision and Decision on Liability, issued on June 11, 2015,
resolved the liability at issue in this matter without the need for an
evidentiary hearing. McGlothlin v. Dominion Coal Corp., 37 FMSHRC 1256
(June 2015) (ALJ). That decision held that Dominion violated the anti-discrimination
provisions of section 105(c)[1]
by interfering with McGlothlin’s right to pay protection under   30 C.F.R. Part
90 as a miner with pneumoconiosis, when Dominion reduced McGlothlin’s pay after
McGlothlin sought a determination from the National Institute for Occupational
Safety and Health (“NIOSH”) concerning his eligibility for Part 90 protection. Id.
at 1264-1266.

The Decision on Liability noted that it was an
interim decision that did not become final, in that it was not ripe for appeal,
until a Decision on Relief was issued. Id. at 1265-1266.    The June 11,
2015, Decision on Liability also noted that the liability decision would be
referred to the Secretary pursuant to Commission Rule 44(b), 29 C.F.R. §
2700.44(b), to provide the Secretary with the opportunity to file a petition
for assessment of civil penalty for Dominion’s violation of 105(c) of the Act. Following
notification, on July 24, 2015, the Secretary filed a penalty petition,
docketed as Docket No. VA 2015-285, seeking to impose a $12,500.00 civil
penalty as a consequence of Dominion’s violation of the anti-discrimination
provisions of the Act.[2]

The Decision on Liability ordered the parties to
confer in an attempt to reach an agreement on the specific relief to be
awarded. The parties were advised that consideration should be given to the
difference in the compensation paid to McGlothlin and the compensation that he
is entitled to as a Part 90 miner, plus interest, reasonable attorney fees, and
reimbursement for any other relevant incidental expenditures. Id. The
parties were given two options: 1) to file individual petitions on relief if
the parties could not agree on a relief proposal; or 2) to file a joint
petition on relief if Dominion could agree to the relief proposed by McGlothlin.
The parties did neither.

Rather, on September 2, 2015, the parties filed
a Joint Motion to Dismiss McGlothlin’s complaint in light of the parties’ proposed
agreed-upon relief. The parties’ Joint Motion to Dismiss is predicated upon
McGlothlin’s agreement that “the parties jointly move the Court to dismiss all
claims in this action with prejudice,” in exchange for Dominion’s agreement to
the relief, including attorney fees, sought by McGlothlin. In this regard, the
parties’ Motion to Dismiss was accompanied by a Confidential Settlement
Agreement and General Release of All Claims that specified the agreed upon
relief to be awarded to McGlothlin, including reimbursement for attorney fees.[3]

Longstanding Commission case law has recognized
the utility of bifurcated decisions on liability and decisions on relief in
section 105(c) proceedings.[4]
Bifurcation preserves Commission resources by avoiding the unnecessary
development of a record regarding the appropriate relief to be awarded in cases
where the discrimination complaint is dismissed after an evidentiary hearing on
liability. See, e.g., Metz v. Carmeuse Lime, Inc., 34
FMSHRC 1820 (Aug. 2012), aff’d Metz v. FMSHRC, 532 F.App’x 309, 2013 WL
3870733 (3d Cir. 2013). Although bifurcated decisions on liability are not
final, in that they are not ripe for Commission appeal until a decision on
relief is rendered, the decision on liability is a final disposition on the
merits with respect to liability. Thus, absent a petition for discretionary
review filed with the Commission, a mine operator that is found liable in a
decision on liability following a hearing is collaterally estopped from denying
liability in a related civil penalty proceeding.

As a threshold matter, the Commission has
repeatedly acknowledged its authority to review the propriety of settlement
motions conferred in section 110(k) of the Act extends to settlement agreements
arising under section 105(c) of the Act. Sec’y of Labor o/b/o Maxey v.
Leeco, Inc., 20 FMSHRC 707, 707 (July 1998) (citations omitted). In this
regard, the parties may submit, subject to Commission approval, post-decision
settlement terms with respect to their proposals regarding the appropriate
civil penalty and relief to be awarded in discrimination cases brought pursuant
to section 105(c).

However, the parties may not mutually agree to
vitiate a post-adjudication decision on liability nunc pro tunc through a
mutual agreement that both insulates a mine operator from the adverse history
of a 105(c) violation, and releases the operator from the resultant civil
penalty liability that must be imposed as a consequence of that violation. 30 U.S.C.
§§ 814(a), 815(a); 29 C.F.R. § 2700.44(b). To hold otherwise would render
Commission decisions on liability in bifurcated 105(c) proceedings as advisory
opinions that are analogous to decisions by      non-binding alternative
dispute resolution bodies that may be disregarded at the whim of the parties. 

A case in point is the Commission’s order in Sec’y
of Labor o/b/o Hopkins v. ASCARO, Inc., 19 FMSHRC 1 (Jan. 1997). In Hopkins,
Judge Manning, in his bifurcated decision on liability, determined that ASARCO,
Inc. (“ASARCO”) had violated section 105(c) of the Act.        18 FMSHRC 317
(Mar. 1996) (ALJ). The decision on liability was followed by Judge Manning’s
supplemental decision and final order on relief. 18 FMSHRC 1160 (July 1996)
(ALJ). Although the Secretary had proposed a civil penalty of $5,000.00, Judge
Manning, finding relevant mitigation, reduced the civil penalty to $800.00, and
awarded Hopkins back pay, interest, and miscellaneous expenses. ASARCO filed a
petition for discretionary review challenging Judge Manning’s conclusions,
which was granted by the Commission. Following ASARCO’s petition for
discretionary review, the parties filed with the Commission a joint motion to
approve settlement agreement, in which ASARCO agreed to pay the relief sought
by Hopkins. The settlement agreement also proposed that ASARCO pay a $500.00
civil penalty, rather than the $800.00 civil penalty assessed by Judge Manning.
The Commission, noting that oversight of proposed settlements is committed to
the Commission’s sound discretion, granted the motion to approve settlement and
vacated their direction for review. 19 FMSHRC at 2-3.

Significantly, the settlement terms approved by
the Commission did not include circumvention of Judge Manning’s finding
of liability by virtue of ASARCO’s agreement to pay the $500.00 civil penalty. However,
in the present case, unlike Hopkins, the settlement terms proffered on
behalf of Dominion must be rejected as they seek to insulate Dominion from
liability that would preclude imposition of the $12,500.00 civil penalty sought
by the Secretary. Simply put, parties to a Commission proceeding do not have
standing to vacate a judicial finding of liability.

In reaching this conclusion, I am cognizant of
the Commission’s decision in Shemwell. In the bifurcated proceeding in Shemwell,
the Commission concluded that a judge retains the jurisdiction to consider
approval of settlement terms before the issuance of a decision on relief
because the decision on liability, alone, does not constitute a final decision
on the merits as contemplated by Commission Rule 69.[5]
Sec’y of Labor o/b/o Shemwell v. Armstrong Coal Co., Inc., 36 FMSHRC
1097, 1100-01 (May 2014) (vacating the judge’s denial of a motion to approve
settlement in a discrimination proceeding). In the majority decision in Shemwell,
the Commission, on abuse of discretion grounds, vacated the judge’s decision
denying a Joint Motion to Approve Settlement, and approved sua sponte
the parties’ settlement terms.

However, unlike this case, in Shemwell,
the Commission expressly conditioned its approval of the parties’ settlement
terms on the fact that deterrence was achieved through settlement terms that included
an admission of liability by the mine operator with respect to any subsequent
proceedings brought against it under the Mine Act. See id. at 1102-03. In
this regard, in Shemwell, the mine operator did not deny liability, but
rather agreed to pay a reduced civil penalty of $35,000.00, as opposed to the
$70,000.00 civil penalty initially proposed by the Secretary and imposed by the
judge.

ORDER

In view of the above, IT IS ORDERED that
the parties’ Joint Motion to Dismiss     IS DENIED, because it is
contingent on proposed settlement terms that seek to release Dominion from an
adjudicated finding of liability in a Commission proceeding.

If the parties agree on relief, it is immaterial
whether the parties’ agreement on relief is styled as a joint petition for
relief or as a motion to approve settlement. However, any proposal for relief,
filed jointly or individually, should include a calculation consisting of the
difference between McGlothlin’s approximate hourly compensation of $25.67 and
the $35.00 per hour he was entitled to during the period from June 16, 2013, to
date, plus an adjustment for overtime, if any, as well as any incidental
expenses incurred.

With respect to the issue of the reasonable
attorney fees to be awarded, relevant detailed attorney fee petitions should be
submitted for worked performed in this matter. This submission should include separate
detailed logs specifying the nature and extent of the legal services rendered
by each of McGlothlin’s attorneys with respect to all filings and depositions
in this proceeding, as well as any other legal services for which reimbursement
is sought. Specifically, the log should contain a daily accounting of the
claimed legal services, the hours worked, and the hourly rate of legal fees
sought to be recovered for each service by each attorney.

IT IS FURTHER ORDERED that the parties
file separate petitions for relief,        or a joint petition, within 21
days of the date of this Order.

/s/
Jerold Feldman

Jerold
Feldman

Administrative
Law Judge    

Distribution:

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian
Citizens Law Center, Inc.,         317 Main Street, Whiteburg, KY 41858

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

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC,
500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

/acp     

[1]
Section 105(c)(1) provides, in relevant part:

No person shall . . . in any manner
discriminate . . . or cause discrimination against or otherwise interfere with
the exercise of the statutory rights of any miner . . . [who] is the subject of
medical evaluations and potential transfer under a standard published pursuant
to section 101 . . . .

30 U.S.C. § 815(c)(1);
37 FMSHRC at 1258.

[2] Civil penalty Docket No. VA 2015-285 was assigned to
me on September 18, 2015.        As discussed infra, collateral estoppel
applies in this matter. Thus, Docket No. VA 2015-285 will be held in abeyance
pending the ultimate resolution of the issue of Dominion’s liability for
violation of section 105(c) of the Act.

[3] The parties have requested that the terms of their
agreed-upon relief be kept confidential.     I will give effect to the parties’
request for confidentiality at this time.

[4]
See, e.g., Gawthrop v. Triplett Bros. Excavating, 17
FMSHRC 64 (Jan. 1995) (ALJ Feldman) (decision on liability), and Gawthrop v.
Triplett Bros. Excavating, 17 FMSHRC 359 (Mar. 1995) (ALJ Feldman)
(decision on relief); Jeanlouis v. Morton Int’l, 25 FMSHRC 536 (Sept.
2003) (ALJ Feldman ) (decision on liability), and Jeanlouis v. Morton Int’l,
25 FMSHRC 673 (Nov. 2003) (ALJ Feldman) (decision on relief); Womack v.
Gramont Western US, 25 FMSHRC 235 [n.4 cont’d] (May 2003) (ALJ Feldman)
(decision on liability), and Womack v. Gramont Western US, 25 FMSHRC 469
(Aug. 2003) (ALJ Feldman) (decision on relief); Descutner v. Newmont USA,
34 FMSHRC 2838 (Oct. 2012) (ALJ Barbour) (decision on liability), and
Descutner v. Newmont USA, 35 FMSHRC 504 (Feb. 2013) (ALJ Barbour) (decision
on relief); Meek v. Essroc Corp., 13 FMSHRC 1970 (Dec. 1991) (ALJ
Fauver) (decision on liability), and Meek v. Essroc Corp., 14 FMSHRC 518
(Mar. 1992) (ALJ Fauver) (decision on relief), aff’d Meek v. Essroc Corp.,
15 FMSHRC 606 (Apr. 1993); Adkins v. Ronnie Long Trucking, 21 FMSHRC 171
(Feb. 1999) (ALJ Hodgdon) (decision on liability), and Adkins v. Ronnie Long
Trucking, 21 FMSHRC 377 (Mar. 1999) (ALJ Hodgdon) (decision on relief); Sec’y
of Labor o/b/o Lopez v. Sherwin Alumina, LLC, 36 FMSHRC 730 (Mar.
2014) (ALJ Bulluck) (decision on liability requesting a follow up petition for
relief from the parties).

[5]
Commission Rule 69(b) provides: “[e]xcept to the
extent otherwise provided herein, the jurisdiction of the Judge terminates when
his decision has been issued.” 29 C.F.R. § 2700.69(b).