Hicks v. Cobra Mining, Inc.

Plain-English summary

Amos Hicks prevailed on a Mine Act discrimination claim against Cobra Mining, Inc., Jerry K. Lester, and Carter Messer after his discriminatory discharge. The remaining dispute concerned the amount of consequential damages for a pickup truck that was repossessed after the discharge. The Commission held that the proper measure was the truck's fair market value when repossessed, less the net credit from its forced sale, rather than the amounts previously paid on the loan. It vacated the damages award for the truck and remanded for evidence on fair market value, repossession costs, and the sale credit.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c); 30 U.S.C. § 823(d)
• Outcome: The Commission vacated the truck-loss damages calculation and remanded for further proceedings.
• Key point: Consequential damages for property lost after a discriminatory discharge should reflect the property's fair market value at the time of loss, adjusted for related credits and costs.

Full text (FMSHRC public release)

CCASE:
AMOS HICKS V. COBRA MINING, J. LESTER & C MESSER
DDATE:
19920113
TTEXT:
January 13, 1992
AMOS HICKS

v . Docket No. VA 89-72-D

COBRA MINING, INC.
JERRY K. LESTER, and
CARTER MESSER

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This matter, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. • 801 et seq. (1988)(the "Mine Act" or "Act"), is before the
Commission for a second time. The present proceeding stems from a pro se
petition for discretionary review filed by Amos Hicks on September 9, 1991,
seeking review of part of an August 7, 1991, decision issued by Commission
Administrative Law Judge Avram Weisberger. 13 FMSHRC 1262. Mr. Hicks
takes
issue with the amount of the damages awarded him in connection with his
discriminatory discharge.
In a March 22, 1990, decision Judge Weisberger determined that Hicks had
set forth a prima facie case of discrimination, but that the Respondents had
established an affirmative defense to Hicks' case. 12 FMSHRC 563. Hicks
petitioned for discretionary review of the decision, which was granted. On
April 1, 1991, the Commission vacated the judge's decision and directed that
the Respondents' affirmative defense be re-evaluated in light of applicable
precedent. 13 FMSHRC 523. On June 4, 1991, the judge determined that Cobra
Mining, Inc. ("Cobra"), Jerry Lester and Carl Messer had discriminatorily
discharged Hicks in violation of section 105(c) of the Mine Act.
30 U.S.C. • 815(c). 13 FMSHRC 921. The factual background of Hicks'
complaint of discrimination is set forth fully in our April 1, 1991, decision
and need not be restated here.
The issue before us at this juncture is whether certain consequential
damages found by the judge to have been caused by the discriminatory discharge
were correctly calculated. The damages at issue are in connection with Hicks'
loss of his pickup truck, which was repossessed and sold shortly after Hicks
was discriminatorily discharged in May of 1989. Before the judge, Cobra and
the individual Respondents argued that Hicks' loss of his truck could not be
deemed compensable damages under the Mine Act. Citing the legislative history

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of the Act,(Footnote 1) the judge rejected Respondents' arguments and held,
"it is respondent's obligation to put Complainant in the position he would be
in if there had not been a discriminatory discharge in violation of the Act."
13 FMSHRC at 1263.
The Respondents have not controverted on review the judge's threshold
finding that such damages are compensable under the statute. Indeed, Cobra
and Messrs. Lester and Messer have filed no pleadings or responses on review.
Accordingly, the sole issue before us is whether the judge correctly
determined the amount of compensation owed to Hicks for the loss of his truck.
For the reasons that follow, we vacate that portion of the judge's decision
and remand the matter for further proceedings as indicated below.
Prior to the issuance of his remedial decision, the judge directed the
parties to file statements regarding the amount of damages due Hicks. On June
21, 1991, the Secretary of Labor, on Hicks' behalf, filed a request for back
pay, costs and consequential damages totalling $17,107.17.(Footnote 2) Of the
total damages sought, the Secretary designated $9,861.07 as consequential
damages associated with Hicks' loss of his 1988 Dodge Ram pickup truck, which,
shortly after Hicks' discharge, was repossessed and sold by the bank through
which he had financed its purchase. The amount sought was arrived at by
adding the monthly payments Hicks had already made on the truck ($4,818.80)
and the amount Hicks still owed to the bank after the loan balance was
adjusted to

1 The legislative history of section 105(c) of the Act provides in
relevant part:
It is the Committee's intention that the Secretary
propose, and that the Commission require, all relief
that is necessary to make the complaining party whole
and to remove the deleterious effects of the
discriminatory conduct, including, but not limited to,
reinstatement with full seniority rights, back-pay
with interest, and recompense for any special damages
sustained as a result of the discrimination. The
specified relief is only illustrative.
S. Rep. No. 181, 95 Cong., 1st Sess., at 37 (1977), reprinted in 95 Cong.,
2nd Sess. Legislative History of the Federal Mine Safety and Health Act of
1977, at 625 (1978).

2 Hicks was represented by the Secretary in the original proceeding, in
which no discriminatory discharge was found. 12 FMSHRC 563 (March 1991).
The
Secretary did not file a petition for discretionary review of that decision on
Hicks' behalf, leaving Hicks to file his ultimately successful petition pro
se. The Secretary re-entered the proceeding on remand and, in addition to

Page 3

filing for the above-referenced damages, sought and obtained a civil penalty
of $1500.00 against Respondents for violation of section 105(c) of the Act.
Upon the judge's reduction of the amount of consequential damages sought by
the Secretary on Hicks' behalf, the Secretary once again did not file a
petition for discretionary review, and Hicks filed his present petition pro se.
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reflect the repossession and sale of the vehicle ($5,042.27).
The unrebutted evidence submitted by Hicks indicates that he purchased a
new 1988 Dodge Ram pickup truck in February 1988, and financed the purchase
through a loan totalling $20,652.00. Hicks made 14 monthly payments of
$344.20 each on the loan through April 1989. After his discharge by Cobra in
May 1989, Hicks made no further payments on the truck. At that time he had
paid $4,818.80 on the loan. The bank repossessed the truck in July of 1989,
and thereafter sold it for $7,400.00. In September of 1989, the bank advised
Hicks that the proceeds of the sale and various offsetting charges associated
with the repossession left him with a liability to the bank of $5,042.27.
In his decision, the judge ordered payment of what he considered Hicks'
"lost equity" in the truck, i.e., the total of the monthly payments Hicks had
made prior to the repossession of the truck ($4,818.80). As for the $5,042.27
still owing to the bank and sought as damages by the Secretary, the judge held
that this sum "constitutes complainant's obligation under the loan, and does
not appear to be related to his having lost his employment." 13 FMSHRC at
1263.(Footnote 3)
The measure of recognizable consequential damages is generally
calculated on the basis of the "fair market value" for property lost as a
result of the illegal act. See, e.g., Kenneth Wiggins v. Eastern Assoc. Coal
Corp., 7 FMSHRC 1766, 1773 (November 1985). We conclude that neither the
calculation of consequential damages proposed by the Secretary nor the actual
determination of those damages made by the judge is appropriate.
The appropriate award to Hicks is an amount reflecting what he actually
lost -- the fair market value of the truck at the time it was repossessed,
less whatever net credits he received from the forced sale of the vehicle.
Such an approach would most closely reflect what Hicks might have realized had
he voluntarily sold the vehicle at the time it was repossessed. The best
means of determining Hicks' damages, therefore, is to first establish the fair
market value the truck at the time of repossession, in light of such factors
as its condition, equipment options and the depreciation it underwent during
the 14 months that Hicks owned and operated it. Objective valuation of the
truck can be derived from independent appraisal manuals, published for that
purpose.
Accordingly, this matter is remanded to the judge for additional

3 The judge relied upon a decision in Noland v. Luck Quarries, Inc.,
2 FMSHRC 954 (April 1980), in which Commission Chief Administrative Law
Judge

Page 4

Paul Merlin, in order to make the complainant "whole," ordered the respondent to
compensate the complainant for the lost equity in a truck that complainant was
forced to sell after his discriminatory discharge. It does not appear, however,
that the figure was arrived at simply by computing the amount already paid on
the truck loan, which would, in most cases, include sums attributable to
interest. Rather, it was arrived at by mutual agreement of the parties after
the judge ordered them to negotiate an amount in light of such factors as "cost,
.... down payment, refinancing, repairs and sales price." 2 FMSHRC at 961-63.
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consideration. The judge is directed to reopen the record to receive
evidence on the value of the truck at the time of repossession. Once that
amount is determined, it should be increased by $142.44, an amount equal to
the costs of the repossession charged to Hicks by the bank. In turn, that
total amount should be reduced by $7,400.00, the amount credited to Hicks'
loan balance from the proceeds of the bank's forced sale of the truck. The
remainder, if any, should then be added, with interest, to the damages already
awarded for back pay, interest, and costs in the judge's August 7, 1991 order.
For the foregoing reasons, we vacate the judge's decision with respect
to the amount of damages awarded for the loss of Hicks' truck and remand the
matter for further proceedings consistent with this decision.