Cobra Mining, Inc., Jerry K. Lester and Carter Messer

Plain-English summary

This discrimination proceeding arose from the discharge of Amos Hicks by Cobra Mining, Jerry K. Lester, and Carter Messer. After an earlier remand decision, the judge reviewed Hicks's requested relief and ordered payment of $5,111.59 in back wages, $1,024.85 in interest, and specified telephone, work boot, mileage, medical, and trial-attendance costs. The judge also awarded $4,818.80 for lost equity in Hicks's truck, but rejected his request for the remaining loan balance because it was not shown to result from the loss of employment. A $1,500 civil penalty was ordered, and the earlier decision was declared final.

Decision snapshot

• Cited standards: None identified in the order.
• Outcome: Back wages, expenses, lost truck equity, and a $1,500 civil penalty were ordered; the remaining truck loan balance was denied.
• Key point: Relief was limited to losses the judge found directly connected to the discriminatory discharge.

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

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 89-72-D
ON BEHALF OF MSHA Case No. NORT CD-89-18
AMOS HICKS,
COMPLAINANT
v.

COBRA MINING, INC.,
JERRY K. LESTER AND
CARTER MESSER,
RESPONDENTS

                               DECISION

Before: Judge Weisberger

  On June 4, 1991, a Decision on Remand was issued which,

intra alia directed Complainant to file a statement indicating
the specific relief requested, and allowed Respondent to file a
reply 20 days from the date of service upon it of Complainant's
statement. On June 24, 1991, Complainant filed his statement of
requested relief, and Respondent filed their response on July 15,
1991.

 In his statement Complainant seeks back wages of $5,111.59,

along with interest in the amount of $1,024.85. He also seeks
telephone charges of $57.18, mileage of $319.18, medical bills of
$490.91, lost wages for trial attendance of $100 and hotel costs
for trial attendance of $47, all of which are essentially alleged
to be costs incurred as a consequence of Respondents
discriminatory discharge of him. Complainant also seeks $95.39,
for work boots which he alleges are required in the State where
he obtained new employment. Complainant also asserts further that
subsequent to his discharge by Respondent he did not have any
income, and could make payments on his truck which was
repossessed and resold causing him to loose his equity in the
truck totally $4,818.80. He thus seeks that amount plus
$5,042.20, the amount still owned by him after the repossession.
Also the Secretary seeks a civil penalty of $1,500.

 Respondents' reply contains an objection only to

Complainant's request for consequential damages arising out of
the loss of his truck. As such, I conclude that, inasmuch as
Respondents have not specifically objected to any other item of

Complainant's request for damages, that they be allowed.

 In resolving the issue of Respondents' liability for

consequential damages arising out of the repossession of
Complainant's truck, I note that the legislative history of the
Federal Mine Safety and Health Act of 1977 ("the Act") reveals an
intent to require that the scope of relief provided shall
encompass ". . . all relief that is necessary to make the
complaining Party whole. . . . " (Senate Report on the Act, S.
Rep. No. 181, 95 Cong., 1st sess., at 37 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977, "Legislative History") at 625 (1978)). Thus it is
Respondents' obligation to put Complainant in the position he
would be in if there had not been a discriminatory discharge in
violation of the Act. (Secretary on behalf E. Bruce Nolan v. Luck
Quarries, 2 FMSHRC 954 (1980) (ALJ Merlin)). I thus find that the
lost of equity in the truck occurred as a direct consequence of
Complainant's have discharge and hence, to make Complainant whole
Respondents have the obligation of replacing the lost equity in
the truck (Nolan supra at 961). However, the amount still owning
on the loan constitutes Complainant's obligation under the loan,
and does not appear to be related to his having lost his
employment. Accordingly, Respondents are not obligated to pay him
that sum.

 It is hereby ORDERED that, within 30 days of this decision,

Respondents shall pay Complainant the following amount:

 Lost Equity in the Truck                 $4,818.80
 Back wages                                5,111.59
 Interest on Back wages                    1,024.85
 Telephone charges                            57.18
 Work Boots                                   95.39
 Automobile mileage                          319.18
 Medical Bills                               490.91
 Lost wages for trial attendance             100.00
 Hotel Cost for trial attendance              47.00

 It is further ORDERED within 30 days of this Decision

Respondent shall pay a civil penalty of $1,500.

 It is further ORDERED that the Decision issued June 4, 1991

is now final.

                                   Avram Weisberger
                                   Administrative Law Judge