Scott D. McGlothlin v. Dominion Coal Corporation (Commission decision, March 30, 2016)

Plain-English summary

After Scott McGlothlin prevailed on his discrimination complaint, the parties agreed on relief that included a stipulated amount of attorney fees. The judge approved the back-pay terms but rejected the agreed fee amount and awarded about 35 percent less. The Commission held that judges may review discrimination settlements to ensure the miner is made whole, but that the judge erred by rejecting a stipulated fee where there was no allegation or evidence that it impaired McGlothlin's remedy. It vacated the contrary portions of the judge's decision and approved the settlement's attorney-fee provisions.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c)(3)
• Outcome: The portions of the judge's decision rejecting the agreed attorney fees were vacated, and those settlement provisions were approved.
• Key point: A judge should not reject stipulated discrimination-case attorney fees absent evidence that the amount undermines the discriminatee's remedy.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SCOTT
D. MCGLOTHLIN                              :

:

v.
                                               :        Docket No. VA 2014-233-D 

:

DOMINION COAL
CORPORATION           :

BEFORE:
Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY THE
COMMISSION:

In
this discrimination proceeding arising under section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3), a Commission Administrative Law Judge issued a decision granting summary decision in favor of the Complainant, Scott D. McGlothlin, and affirming his discrimination complaint. 37 FMSHRC 1256, 1265 (June 2015) (ALJ). In September 2015, the parties filed a Joint Motion to File under Seal and to Dismiss, which included a proposed settlement agreement regarding relief for McGlothlin. On October 21, 2015, the Judge issued an order denying the motion. 37 FMSHRC 2511, 2514 (Oct. 2015) (ALJ).

On
November 11, 2015, in response to the Judge’s denial, the parties filed a Joint Motion to Approve Settlement, to File under Seal and to Dismiss, which included a revised settlement agreement proposal. Thereafter, following the issuance and filing of various orders and pleadings, the Judge issued a Decision on Relief and Final Order.  38 FMSHRC ___ (Feb. 8, 2016). In that decision, the Judge awarded McGlothlin back pay, consistent with the terms of the revised settlement agreement, and ordered other relief. Id. at ___, slip op. at 8.

However,
the Judge rejected the attorneys’ fees portion of the revised settlement agreement and awarded attorneys’ fees to the Complainant’s attorneys in an amount approximately 35 percent less than the amount agreed to by the parties. Id. at ___, slip op. at 4-5, 15. The Commission subsequently granted McGlothlin’s petition for discretionary review, challenging the Judge’s rejection of those provisions.

Oversight
of proposed settlements is committed to the Commission’s sound discretion. Sec’y of Labor on behalf of Hopkins v. Asarco, Inc., 18 FMSHRC 2081, 2082 (Dec. 1996) (citations omitted). The Commission has exercised this discretion in the past in section 105(c)(3) discrimination proceedings. See, e.g., Reid v. Kiah Creek Mining Co., 15 FMSHRC 390 (Mar. 1993). The Commission has explained that the grant of authority set forth in section 105(c) to provide appropriate relief necessarily includes the authority to review settlement agreements in discrimination cases. Sec’y of Labor on behalf of Maxey v. Leeco, Inc., 20 FMSHRC 707 (July 1998).[1]

In
the matter before us, our review is limited to the Judge’s rejection of the proposed settlement terms, agreed to by the parties, regarding attorneys’ fees. In his February decision, the Judge determined that the revised settlement proposal provided appropriate relief to the discriminatee, Mr. McGlothlin.  Furthermore, this proceeding does not involve the review of a proposed settlement of a civil penalty.

Where,
as here, the parties have agreed to a stipulated amount of attorneys’ fees and there are no allegations or evidence that such an amount would adversely affect the remedy afforded the discriminatee, the Judge erred in rejecting the settlement based upon the agreed upon amount of attorneys’ fees.

Accordingly,
we vacate those portions of the Judge’s decision rejecting the revised settlement agreement as to attorneys’ fees, and we approve the settlement agreement as to those provisions.[2]

/s/ Mary Lu
Jordan

Mary Lu Jordan, Chairman

/s/ Michael G.
Young

Michael G. Young,
Commissioner

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen
Jr., Commissioner

/s/ Patrick K.
Nakamura

Patrick K.
Nakamura, Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1] Commissioner
Cohen notes that in Secretary of Labor on behalf of Maxey v. Leeco, Inc., 20 FMSHRC 707, 708 (July 1998), in response to a partial dissent by Commissioner Beatty which questioned the Commission’s authority to review settlement agreements in discrimination cases, the Commission made clear that the purpose of its authority to review settlement agreements under section 105(c) of the Mine Act was “to ensure that discriminatees are made whole.” The Commission stated, “ . . . for if no such authority existed, the ability of the Commission and its judges to ensure that discriminatees are made whole would be severely curtailed, a result at odds with the intent of the Mine Act.” (citing S. Rep. No. 95-181, at 13 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 625 (1978)). Id.

[2]
We are
approving the provisions in the revised settlement agreement filed on November 11, 2015, relating to attorneys’ fees. Because of our disposition, we do not reach any other matters discussed in McGlothlin’s petition for discretionary review, including the recovery of attorneys’ fees incurred after submission of the revised settlement agreement.