Daniel B. Lowe v. Veris Gold USA, Inc.

Plain-English summary

Daniel Lowe, Veris Gold's safety and regulatory compliance manager, complained about mercury contamination and contaminated clothing in mine lunchrooms. Veris fired him days later, and its human-resources manager told witnesses that the company would think of a reason for the termination. Veris knowingly allowed its attorney to withdraw at the hearing and defaulted, but Lowe still presented testimony and documents supporting his claim. Judge William B. Moran found that Lowe engaged in protected activity, suffered an adverse action, and was fired because of his safety complaints, with no evidence of a lawful alternative motive. The Judge upheld the discrimination complaint, directed Lowe to document his damages, ordered the Secretary to begin a civil-penalty proceeding, and requested Commission direction on bankruptcy and successor-liability issues.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c)(1) and (3)
• Outcome: The discrimination complaint was upheld, damages remained for later determination, and the Secretary was directed to seek a civil penalty.
• Key point: An operator's default does not eliminate the complainant's prima facie burden, but credible unrebutted evidence can establish that protected safety complaints motivated a firing.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9933 / FAX: 202-434-9949

October 15, 2015

DANIEL
B. LOWE,

Complainant,

v.

VERIS
GOLD USA, INC.,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. WEST 2014-614-DM

WE-MD
14-04

Mine:
Jerritt Canyon Mill

Mine
ID: 26-01621

Appearances:   Daniel
B. Lowe, pro se, Elko, Nevada, for Complainant

David M. Stanton, Esq.,[1]
Goicoechea, DiGrazia, Coyle, and Stanton, Elko, Nevada, for Respondent

Before:                        Judge
Moran

DECISION AND
REQUEST FOR DIRECTION FROM THE COMMISSION

In this section 105(c)(3) action under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act” or “Act”), Complainant, Daniel B. Lowe, has asserted that he was
fired by Veris Gold USA, Inc., because of safety and health complaints he
voiced related to his job at Veris’ Jerritt Canyon Mill. A hearing was held in
Elko, Nevada, on June 18, 2015. The Court finds that Veris was motivated to
fire Lowe because of his safety and health complaints to Veris management and
that the record contains no evidence that Complainant’s termination was based
on any non-safety or health basis. Accordingly, for the reasons which follow,
Mr. Lowe’s complaint of discrimination is upheld.

The Elements of
a 105(c) Discrimination Claim

The basics of a discrimination claim
under the Mine Act are well-established and clear. In order to establish a
prima facie violation of section 105(c)(1) of the Mine Act, Complainant must
prove, by a preponderance of the evidence, (1) that he engaged in protected
activity; (2) that he suffered an adverse action; and (3) that the adverse
action taken against him by the mine operator was motivated in any part by that
protected activity. In order to rebut a prima facie case, the operator must
either show that no protected activity occurred or that the adverse action was
in no part motivated by the miner’s protected activity. Sec’y of Labor on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d
on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (Apr. 1981). If the operator cannot rebut the miner’s
prima facie case in this manner, it nevertheless can defend affirmatively by
proving that (1) it was also motivated by the miner’s unprotected activity and
(2) it would have taken the adverse action in any event for the unprotected
activity alone. The operator bears the burden of proof in such an affirmative
“mixed motive” defense. Haro v. Magma Copper Co., 4 FMSHRC 1935 (Nov.
1982).

The current action is brought under
section 105(c)(3) of the Mine Act. That section provides that if the Secretary
determines that a violation of section 105(c)(1) has not occurred, “the
[C]omplainant shall have the right . . . to file an action in his own behalf
before the Commission, charging discrimination.” 30 U.S.C. § 815(c)(3). As the
Commission stated in Jaxun v. Asarco, LLC, 20 FMSHRC 616, 620 (Aug.
2007), “[t]he Mine Act, the Administrative Procedure Act (‘APA’), and the
Commission’s Procedural Rules permit a Complainant to proceed with an action
under section 105(c)(3) of the Mine Act without representation.”

Findings of Fact

At the outset of the hearing, Attorney David
Stanton, privately retained legal counsel for Veris Gold, appeared. The Court
noted that Attorney Stanton filed a motion for his withdrawal as the
Respondent’s representative. Tr. 6. The Court had previously received word of
Attorney Stanton’s motion to withdraw at the conclusion of the prior week, one
day after another section 105(c)(3) hearing against Veris, Matthew Varady v.
Veris Gold USA, Inc., WEST 2014-307-DM, had concluded. This Court presided
in the Varady discrimination case. That case involved the pro se discrimination
claim brought Matthew Varady against Veris Gold, and a decision finding for Mr.
Varady was issued on September 2, 2015. Attorney Stanton represented Veris in
the Varady discrimination matter for the entirety of the hearing. As noted, infra,
the Varady hearing did not go well, evidentiary-wise, from Respondent’s
perspective, and it was obvious that Attorney Stanton correctly gauged the adverse
evidentiary consequences of the proceeding, owing to the poor credibility of
Respondent’s various witnesses. Therefore, it was not a surprise to the Court that
the attorney moved to withdraw from representation. As the Varady and Lowe
matters are closely linked, it followed that withdrawal would be sought in the
Lowe matter as well.

Due
to the indefinite nature of Attorney Stanton’s initial email request to
withdraw his representation of Veris, it was not clear whether the attorney’s request
was confined to the Lowe and Varady matters or whether the attorney was
withdrawing completely from all representation of Veris. Attorney Stanton was
equivocal about his continuing role, in that he indicated that it would
continue until the bankruptcy monitor in Canada acts. Tr. 6. At the time of and
prior to the hearing’s start, Veris had been involved in a bankruptcy
proceeding. Attorney Stanton confirmed that mining would continue at the Veris
site and it was his understanding that Veris would continue as a legal
corporate entity and he represented that the Veris entity would “remain in
existence for some period of time while the monitor addresses some . . . lingering
issues,” although he did not know exactly what those issues were. Tr. 8. Emphasizing
that the mine would be a continuing operation, albeit under a successor, “White
Box” or the debtor in possession, Attorney Stanton hoped that his legal representation
would continue with the new ownership. Tr. 9. Thus, it is fair to state that
the mining operation and attorneys representing it would continue to move along
nicely, while apparently simultaneously attempting to evade responsibility,
through bankruptcy legal mechanisms, for acts of discrimination under the Mine
Act.

The
Court then announced that testimony would be received from Mr. Lowe in this
matter, as Complainant still had an obligation to present a prima facie case.
With Attorney Stanton withdrawing from representation of Veris, an act made at
the request of Veris, the Court advised that it could then find Veris to be in
default. Tr. 10. Attorney Stanton stated that he had communicated to Veris
and to the bankruptcy monitor about the risk of being held in default
and therefore, he noted, their decision to have him withdraw as counsel was
made “with that information in mind.” Tr. 11. Therefore, as Attorney Stanton
confirmed, Veris and its successor understood the risk they assumed by
foregoing any defense in the Lowe matter. Id. With Veris’ full
understanding of the consequences of the requested withdrawal, the Court then
granted Attorney Stanton’s motion to withdraw from representation and he was
then excused from the proceeding.[2]

The hearing then continued, it being
incumbent, as noted above, for Complainant to establish a prima facie
case, irrespective of Respondent’s election to default. The Court then advised
that it was confined to the basis of Mr. Lowe’s complaint, as presented to MSHA
when he filed his complaint, citing Hatfield v. Colquest Energy, Inc.,
13 FMSHRC 544 (Apr. 1991). Tr. 22. In addition to the complaint itself, a one
page document, dated November 22, 2013, there is also a statement by MSHA
special investigator Kyle E. Jackson. That document, the Court noted,
identifies some protected activity. While that protected activity is not
expressly contained within the four corners of Mr. Lowe’s discrimination
complaint, the Court stated that, by inference, it was part of the complaint to
MSHA, as the special investigator had to have been informed about such protected
activity by Complainant.

In the complaint proper, Lowe listed the
following Veris management individuals as responsible for discriminatory action
against him: Mr. Kim, Mr. Jones, Mr. Dickson, Mr. Hofer, Francois Marlan, Mr.
Ward, and Dr. Goodfield. Tr. 25. The Court then noted that the typewritten discrimination
report filed on November 22, 2013, provides:

In accordance
with the Mining Act of 1977 and by statutory rights of as a miner, [Daniel
Lowe] was continuously discriminated against in matters of safety and health as
well as in matters of regulatory compliance. These acts came in the form of
constant threats of reprisal by members of senior management and/or corporate
officers in matters of safety and health and regulatory compliance. These
include threats of termination of employment, termination of my employment, and
physical threats of violence by a member of senior management to do [Complainant,
Lowe,] bodily harm when attempting to make safe the Jerritt Canyon Mill, as
well as all mining operations of Veris Gold USA, Inc. located in Elko County,
Nevada.

Tr.
26-27.

Reviewing that document and guided by
the Hatfield decision, the Court noted that the first allegation was too
vague. Tr. 27. Then, the Court continued to read from the Complaint that “[Lowe
asserted that he] was given specific direction from senior management/corporate
officers to ignore employee safety and health rights under the Mining Act of
1977 and told [his] job was to keep the mill manager and assistant mill manager
stress-free.” Id. The Court again noted that the allegation does not
inform “as to specific protected activity nor, [the Court noted] could [MSHA]
go out and conduct an investigation based on that. If [MSHA] were right at the
mine they couldn’t know what to ask about, [because the allegation is] too
vague.” Id.

Continuing, the Court read:

Due to [Lowe’s]
efforts to make necessary changes at the Jerritt Canyon Mill related to safety
and health [he] was under constant daily harassment from members of the senior
management and/or corporate officers in practically any matter that pertained
to regulatory compliance and the statutory rights of miners that would or could
interfere with the production of gold. When [Lowe] brought forth legitimate and
serious safety and health issues or regulatory compliance issues with senior
management and corporate officers, [he] was either ignored or verbally threatened
with a reprisal of having [his] employment terminated. At present, production
and only production of gold is the only thing that senior management and corporate
officers care about. [Lowe is] seeking immediate reinstatement to [his] former
position as . . . Mine Safety and Regulatory Compliance Manager with full back pay
and allowed expenses.

Tr.

28. Again, the Court advised Complainant at the hearing that “there is nothing .
    . . alleging specific protected activity.” Id.

The Court noted that it did “have the
declaration of [MSHA investigator] Kyle Jackson, [wherein] Mr. Jackson [stated
that] he investigated claims of discrimination.” Tr. 29. The Court took note
that Jackson couldn’t have just invented claims out of his imagination, and
therefore, at some point he must have been given information from Mr. Lowe. Id.
However, the Court did not yet possess such information. It then noted that
Jackson stated at page two of his declaration that

[d]uring the
week of November 11, 2013 Mr. Lowe engaged in protected activity by reporting
housekeeping issues with two lunchrooms at Veris Jerritt Canyon Mill to mill
manager . . . Kim and assistant mill manager Chris Jones. Mr. Lowe reported
that one of the lunchrooms had an issue with mercury contamination and that
another had an issue with dirt on the wall.[3]

Id. The Jackson
declaration continued, “Mr. Lowe also told Mr. Kim and Mr. Jones that Veris
needed to enforce company policy that employees not enter the lunchrooms
wearing contaminated clothing.” Id. The Court noted that two instances
of protected activity were identified: the housekeeping dirt and mercury
contamination issues. Tr. 30. Jackson’s statement then continued, asserting
that “[o]n November 18th Mr. Lowe again engaged . . . in protected activity
when he sent an e-mail to chief operating officer Graham Dickson reporting that
Mr. Jones had screamed at miner Cheryl Garcia [with Jones asserting] that Ms. Garcia
and Mr. Lowe were trying to fuck him with the lunchroom housekeeping issue.”[4]
Id. The Court then noted that Mr. Lowe’s employment with Veris was
terminated on November 21, 2013. Id.

The Court then summed up the foregoing
by noting that the only things that it could take cognizance of were the housekeeping
issue of dirt on a wall, and the mercury contamination, that is, workers
entering the lunchroom with contaminated clothing. Id.

Having articulated all that it could
find in terms of protected activity presented to MSHA when Lowe filed his
complaint, the Court inquired if Mr. Lowe had anything else to offer, in terms
of information presented to MSHA when he filed his complaint. His response was
that he also alleged that Mr. Jones engaged in reckless driving (speeding) on
mine property, that he advised Veris of this, and that he was fired not long
after that event. Tr. 32-34. However, that allegation is not found in the
complaint, nor referenced by MSHA investigator Jackson. Therefore, it cannot be
considered as an independent claim of discrimination for the section 105(c)(3)
complaint. However, it can be considered to demonstrate that Veris, and Jones
in particular, were angry at Lowe over his lunchroom safety complaint.

With the cognizable protected activities
identified, the Court then received testimony, starting with the complainant,
Mr. Lowe. Lowe began his employment with Veris on April 19th of 2012. Tr. 54. He
was hired to address mine safety and regulatory compliance matters.[5]
Tr. 55. His testimony involving the basis of his discrimination claim began with
the lunchroom incident. This occurred during an MSHA inspection when dirt was
observed on a lunchroom wall and high levels of mercury were found in another
lunchroom. Tr. 37. Lowe did not believe that citations were issued for these
conditions; the inspector instead gave the mine an opportunity to clean up the
conditions. Tr. 38. Lowe was not present when the conditions were found. Tr.
39.

A day or two later, Cheryl Garcia came
to Lowe reporting that Chris Jones had just screamed at her, telling her not to
fuck him with lunchroom issues, at least according to Lowe’s recounting of the
event. Tr. 40. Lowe then elevated the issue to his boss, Bill Hofer, but no
action was taken against Jones. Tr. 41. Following that, Lowe sent himself an
e-mail to document Jones’ incident with Garcia. Tr. 420. The e-mail, dated
November 18, 2013, was sent to Graham Dickson, Veris’ Chief Operating Officer. Ex.
C-1. The text of the email stated:

Subject: Employee
abuse. Importance: High. Graham, on Friday Dave Jenkins came into Cheryl
Garcia’s office seeking assistance with decontaminating areas using HgX. He
said he was going to be cleaning the lunchrooms and he showed the janitorial
staff how to do this using HgX. Also he stated that once they cleaned the
lunchroom they would retest using a Jerome meter. While Dave was in Cheryl’s
office Chris Jones came in and began screaming at Dave saying, “you don’t need
to be in here, you are in maintenance, you don’t need to talk to her about the
mercury issues.”

Id. Garcia then went
to speak with Jones about his outburst, and Jones related that he believed she
and Lowe were trying to f[---] him over the lunchroom cleanliness issues. Tr.

44. Lowe’s email continued, stating that he did “not believe any person should
    be subjected to this kind of behavior when she was only doing her job and doing
    her job well, and trying to keep our employees safe and healthful.” Tr. 45. Dickson
    did not reply to Lowe’s email. Tr. 47.

Next, Lowe alleged that Jones drove
aggressively very close behind him on Highway 225 the following morning, November
19th.[6]
Tr. 48. Lowe also related that later that day he went to the office of HR
Manager Dwayne Ward, informing him that he had sent the two emails described
above and in footnote six. Tr. 52. Lowe expressed to Ward that he thought he
might be fired because of the emails. Id. According to Lowe, Ward
responded that, as it involved Chris Jones, there was nothing he could do about
the matter. Id. Later that day, Ward spoke to Lowe advising him that he
would indeed be fired that Thursday. Id. Ward informed Lowe that he was
being fired because of attorney’s fees incurred by Veris, though he did not
understand the particulars. Tr. 52-53. Lowe then went into his office and
called in Mark Butterfield, who confirmed the news Ward had given. Tr. 53. All
of those events occurred on the 19th. Id.

Lowe was next at work on the 21st. Id.
On that date Lowe went to Dwayne Ward’s office and where he met Tia Monahan, HR
technician, and Joe Stoddard, HR recruiter/assistant HR manager. Ward then
presented a release to Lowe, asking that he sign it. It offered two months of
severance pay, but Lowe stated that the release took away all his rights and
therefore he refused to sign it. Tr. 58. That release was entered into the record.
Ex. C-3. Lowe stated that the release included the signatures of Tia
Monahan and Joe Stoddard on it, bearing witness that Lowe refused to sign it.[7]
Tr. 59.

At that time, Lowe stated that he
inquired about the basis of his termination, and that Ward advised that he
didn’t know but that Veris would think up something and let him know. Tr. 60. The
decision was made to have Mark Butterfield then drive Lowe home. Tr. 61. Lowe
related that during discovery for this litigation, Attorney Stanton, Veris’
attorney until the week prior to the commencement of the Lowe hearing, sent him
information and included within that was the letter from Dwayne Ward stating
the reason for Lowe’s termination. Tr. 63. Up until he received that
information from Veris’ attorney, which was over a year after he was
terminated, Lowe had not been apprised of the reason for his firing. Id.

As noted, Lowe asserted that he never
received the termination letter until the discovery process. The exhibit was
admitted as Exhibit C-4, letter from Veris, dated November 21, 2013, to Danny
Lowe. Tr. 63. Lowe maintained that the letter had errors in it. Again, he stated
that he never received the letter until disclosed through the discovery process
for this litigation, with Lowe asserting that the letter had the wrong zip
code. Tr. 64. Lowe read the text of the letter into the record. It stated: “You
are being terminated on Thursday, November 21st, 2013. There are several
factors that led to this decision. First, you were written up on October the
1st, 2013 for not reporting vacation time taken.” Tr. 66. The termination
letter continued, “In addition, you have had several conversations with Bill Hofer
and Graham Dickson on the performance of your department and how it has not met
the needs of the other departments in addition to not keeping normal work
hours.” Tr. 67.

Lowe challenged the accuracy of both
those claims. Regarding the alleged failure to not report vacation time, Lowe
asserted that he sent an email to Bill Hofer, requesting the days off. Tr. 66. The
claim was that Lowe should have informed Mary Buttes, an administrative aide to
Graham Dickson, of his planned leave. When Lowe challenged the write-up,
Dickson noted that the notice to advise Buttes of leave was sent out on two
dates. However, upon consulting with Veris’ IT Manager, Pablo Cortez, Lowe learned
that his name was not on the distribution list and therefore he had not been
notified of the requirement to inform Ms. Buttes of leave. Id. Lowe
maintained that the write-up was later rescinded. Tr. 67.

As to the other claimed basis for his
discharge, the claim that the performance of Lowe’s department had not met the
needs of the other departments and that Lowe had not kept normal work hours,
Lowe asserted that there had never been any conversation between Hofer, Dickson
and himself regarding Lowe’s work performance. Id. To the contrary, Lowe
asserted that Mark Butterfield was prepared to testify that the department
managers were happy with his work and that the safety department was meeting
the mine’s needs. Id.

Last, Lowe addressed the claim in his
termination letter that he was not keeping normal working hours. Lowe agreed,
but in a different sense than the letter implied, as he maintained that he
essentially worked around the clock at Veris. Tr. 68-69. He stated that there
were many occasions when his day would begin as early as 3:30 a.m. Tr. 68. In
addition, he asserted that Graham had changed his hours so that effectively he
was on call 24 hours. Tr. 69.

The letter included a final basis for
Lowe’s termination, asserting that “[t]he final

determining
factor of your termination is our accounting department received a bill from [the
law firm of] Jackson Lewis in November that was for $533,815.18.” Tr. 69. The
letter claimed that Lowe “incurred all these charges without prior approval and
also without reporting it to accounting. Therefore, we are terminating you as stated
on Thursday, November 23rd, 2013.” Id. Dwayne Ward’s signature was on
the termination letter. Lowe’s response to the claim was that the legal fees
incurred were justified because he was hired, in part, to get rid of all the
citations Veris had received, so that it could be released from the potential
pattern of violation status, on which it had been placed. Tr. 69-70. Lowe
stated that he was hired and authorized to incur such fees, as part of the effort
to address the violations. He stated that he has the affidavit of Guy Simpson,
who was his original general manager at Veris, and also that of Joseph Welin, affirming
that Lowe was authorized to incur those legal fees. Tr. 70. It was, Lowe stated,
a tumultuous time at Veris as the mine had gone through seven or eight general
managers. Id. Except for his brief demotion when Joe Driscoll was a
general manager there, everyone knew what Lowe was doing vis-à-vis the
attorneys. Tr. 70.

Accordingly, Lowe maintained that his
firing stemmed from his confrontation with Chris Jones, as described above.[8]
Tr. 71. Lowe agreed that the events which ultimately precipitated his firing
were the lunchroom cleaning issues.

In testimony supporting Lowe’s
recounting of the events, he called Cheryl Garcia as a witness. Garcia affirmed
that she was with an MSHA Inspector during November 2013 when high levels of
mercury were discovered in a lunchroom at the mill. Tr. 76. She then notified
her manager, Complainant Lowe, that the lunchroom would be closed during the
mercury cleanup. Id. Garcia also emailed Lowe about the process for the
cleanup and copied Veris management officials Kiedoc Kim and Chris Jones about
it. Tr. 78. Not long after, Jones saw Jenkins in Garcia’s office and yelled at
him, telling him that he was to leave and that he had no business being in
Garcia’s office. Id. This intemperate interaction prompted Garcia to
visit Jones in his office, whereupon Jones claimed that she and Lowe were
trying to cause trouble for him over the lunchroom problems. Id.

Matthew Varady also testified for Mr.
Lowe. Varady stated that in September 2013 he was overexposed to chemicals
while working at his job in the CIL circuit. Tr. 80. Varady contended that he
was directed by Kiedoc Kim, Mill Manager, to remain at his CIL job under all
circumstances or he would be fired. Id. Thereafter, as Varady was
feeling ill, Cheryl Garcia, upon consultation with Lowe, directed that he see
Dr. Matteran for an evaluation of his symptoms. Tr. 80-81. Varady learned that
the investigation regarding his health problem had been stopped and that Lowe
advised him that Chris Jones was trying to terminate Varady’s employment for
making a safety and health complaint. Tr. 81-82.

Mark Butterfield was then called by
Lowe. Butterfield was the safety coordinator at Veris during the relevant time.
Tr. 83. He reported to Lowe, who was the safety manager. Butterfield agreed
that Lowe assigned him to investigate the health incident involving Varady at
the CIL circuit. Id. His investigation began by interviewing Doug
Morris, who was the mill superintendent at that time. Tr. 83-84. Then he met
with the HR Manager, Dwayne Ward, about the matter. Tr. 84. Chris Jones then
appeared and inquired about the nature of Butterfield’s business. Id. Upon
learning the subject, he ordered Butterfield to stop the investigation. Id.
Butterfield resisted the order, advising Jones that he was not in his chain of
command. Id. Ward then intervened, telling Butterfield that the
investigation was put on hold until he, Ward, spoke to Lowe. Tr. 85. Butterfield
advised Lowe of the developments; his investigation never resumed. Id.

Another Veris employee, Shawn Rose, then
testified. Rose’s attention was directed to November 19, 2013. Rose agreed that
Lowe told him that Dwayne Ward had just tipped Lowe off, advising Lowe that he
was going to be fired. Tr. 87-88. Rose did not know at that time of the reason
for Lowe’s impending dismissal. Tr. 88.

Pablo Cortez then testified. Id. Cortez
was asked by Lowe about an incident around October 2, 2013, in which Lowe asked
about the e-mail group system. Tr. 89. Cortez recalled the incident, advising
that there had been an issue about Lowe’s time off. Id. Veris’ Mary
Buttes had asked people to advise her if they would be off from work, such as
for vacations. Id. Cortez recalled that Lowe was not on the e-mail group
and therefore was not informed of the request that employees were to notify of
time off from work. Id. After speaking with Buttes about the matter,
Cortez then advised Graham Dickson and Dwayne Ward that Lowe was not on the
list. Id. Cortez blamed himself for the omission. Id.

Tia Monahan testified next. She affirmed
her presence in Dwayne Ward’s office on November 21, 2013, at the time Lowe was
terminated. Tr. 91. She also agreed that she witnessed Lowe’s refusal to sign a
release regarding that termination. Id. When Lowe asked of Ward the
official reason for his termination, Monahan related that Ward responded
“[t]hat they [Veris] would think of something.” Id. Joseph Stoddard also
witnessed this exchange, according to Monahan. Id.

Joseph Stoddard was then called as
Complainant’s final witness. Tr. 92. Stoddard stated that at the time of the
matters associated with Lowe’s termination, he was a senior HR manager or
specialist. Tr. 93. His employment with Veris ended in December 2013. Id.
Stoddard was fired from Veris at that time. Id. Directed to November 21,
2013, Stoddard agreed that he was in the HR Manager’s office on the morning
when Lowe was fired and that he also heard the HR Manager say words to the
effect that they would think of something to support Lowe’s termination. Tr.

94. Stoddard further stated that, the week before Lowe’s firing, Ward revealed
    that Veris would be firing Lowe. Id. When Stoddard asked Ward about the
    reason for doing that, Ward said words to the effect that Lowe “got in Chris
    Jones’s and Mary Buttes’s cross-hairs.” Tr. 94-95. Although Stoddard asked for
    more specifics, he stated that Ward “he didn't really have an answer for that.”
    Tr. 95.

Discussion

Bearing in mind that Respondent
defaulted, waiving its opportunity to defend against the claims of Complainant,
based on the credible and unrebutted evidence of record, the Court finds that Daniel
Lowe engaged in protected activity when he complained about the housekeeping
issues with the two lunchrooms at Veris’ Jerritt Canyon Mill to mill manager Kim
and assistant mill manager Jones and by his informing those individuals that
Veris needed to enforce company policy that employees not enter the lunchrooms
wearing contaminated clothing. The speeding incident, while not a separate
basis of protected activity, is instructive to support that Jones was angry at
Lowe for his complaints about the safety and health housekeeping issues in the
lunchrooms. Thereafter, on November 21, 2013, Lowe’s employment with Veris was
terminated.

As Veris elected to default at the start
of the hearing, despite being fully informed of the consequences of that
determination, by its then-counsel, Attorney Stanton, the credible record evidence
establishes that Lowe engaged in the above-described protected activity, that
he was thereafter fired, and that his termination was motivated by his
engagement in that protected activity. By virtue of Veris’ default, the record is
devoid of any evidence to show that Veris was in no part motivated by the
miner’s protected activity. Similarly, there is no evidence from Veris to show
that it would have taken the adverse action in any event for the unprotected
activity alone.

Conclusion

Having found that Daniel Lowe engaged in
protected activity and that his employment was terminated on November 21, 2013,
because of his exercise of that activity, damages may be awarded. Reinstatement
does not appear to be possible as the Veris operation is now run by a new
owner.

Request for
Direction from the Commission

This case has now become complicated by
the fact that Veris sought and received bankruptcy protection. The hearing in
this matter occurred on June 18, 2015. As this decision has alluded to, the
hearing did not go well for Respondent, Veris Gold, in the companion case of Matthew
Varady v. Veris Gold, held the week prior to the Lowe matter. No doubt,
counsel for Respondent recognized that problems similar to those encountered in
the Varady matter would be present for the Lowe hearing. A harbinger of this,
the day after the Varady hearing ended, counsel for Veris requested a
conference call “to discuss a procedural issue that [he] believe[d] affect[ed]
both the Varady and Lowe cases.” Email from David M. Stanton, Counsel for Veris
Gold USA, Inc., to the Court (June 11, 2015, 10:42 EDT). Therefore, it did not
come as a surprise to the Court that two days after the hearing concluded,
Respondent’s attorney advised, via email on June 12, 2015, that he was
requesting withdrawal from his representation of Respondent for both the Varady
and Lowe matters. Subsequently, the Court learned that Veris has been sold.

Based on news
reports, it is the Court’s understanding that the Veris mine resumed operations
immediately following the ownership change and that most of the same personnel
continue to work at the mine.[9]
It is hoped that, rather than attempt to hide behind successorship barriers,
the new entity, which literally mines gold, will accept responsibility and pay
Mr. Lowe such damages as the Court may award, which are expected to be modest.

In addition,
direction is sought from the Commission about how to proceed in this matter of
first impression. As noted, Veris Gold has been sold. See In re Veris
Gold Corporation, No. 14-51015-gwz (Bankr. D. Nev. June 4, 2015) (order
recognizing and enforcing the Canadian sale Order).[10]
This Court recognizes that the Commission has generally held that successorship
does not eliminate liability for discrimination.[11]
Bearing in mind that Complainant proceeded pro se and that the successor
entity has never been a party to this matter, the Court, recognizing that it
cannot act as de facto counsel for Lowe, is uncertain whether it should
direct Lowe to file a motion to reopen the hearing[12]
for the purpose of adding the purchaser, WBVG LLC, which is wholly owned by
WBOX 2014-1 LLC, the DIP Lender, and to 2176423 Ontario Ltd, a company wholly
owned by Eric Sprott, as a party.[13] Alternatively, the Court
could wait for the Secretary to fulfill his obligation to seek a civil penalty
and monitor the Secretary’s actions to hold the successor liable, while holding
a final order in this matter in abeyance until the Secretary’s action is
completed. Still another route could be to direct the Respondent to bring his
judgment before the Nevada Bankruptcy court. At paragraph 46 of the Order of
the United States Bankruptcy Court for the District of Nevada, it states:

This [District
of Nevada United States Bankruptcy] Court shall retain exclusive jurisdiction
to enforce the terms and provisions of this Order and the Agreement in all
respects and to decide any disputes concerning this Order and the Agreement, or
the rights and duties of the parties hereunder or thereunder or any issues relating
to the Agreement and this Order including, but not limited to, the
interpretation of the terms, conditions and provisions hereof and thereof, the
status, nature and extent of the Assets and all issues and disputes arising in
connection with the relief authorized herein, inclusive of those concerning the
transfer of the assets free and clear of all Liens, Claims and Interests. This
Court retains jurisdiction of this proceeding pending the issuance of a final
order granting relief.

ORDER

The concept of damages is to “make
whole” a person who has been unlawfully discharged. Because Mr. Lowe is not an
attorney, the Court offers the following general guidance as to allowable
damages. Such damages would include reimbursement for expenses in seeking
reemployment and lost wages plus interest[14]
from the date of discharge until reemployment, if applicable. Because the “make
whole” concept of relief does not contemplate a windfall to such individuals,
any unemployment benefits received for the period between the unlawful
discharge and the date of new employment, if applicable, are offsets to the
damages that may be awarded. Litigation-related expenses are awardable. As
examples, these would include copying expenses; any costs related to
subpoenaing witnesses; medical expenses, including premiums, that would have
been covered by Complainant’s medical insurance, if applicable; and lost
vacation pay, if applicable. Mileage, telephone calls, and postage are other
examples of awardable damages. These are examples only. The guiding principle
is for a complainant to recover the financial reimbursement for items he would
have received had his employment continued and the expenses in pursuing this
litigation, minus benefits received such as unemployment compensation.

Some damages are
not recognized for relief under the Mine Act. For example, there is no
authority or precedent for awarding compensatory damages for damage to
reputation and/or pain and suffering. Bewak v. Alaska Mech., Inc., 33
FMSHRC 2337, 2338 (Sept. 2011) (ALJ); Peterson v. Sunshine Precious Metals,
Inc., 24 FMSHRC 810, 811-12 (Aug. 2002) (ALJ); Casebolt v. Falcon Coal
Co., 6 FMSHRC 485, 503 (Feb. 1984) (ALJ).

Complainant Daniel Lowe is directed to
provide his itemized and documented damages within 30 days of this decision.

Commission Rule 44(b), 29 C.F.R. §
2700.44(b), provides that the Judge shall notify the Secretary in writing
immediately after sustaining a discrimination complaint brought by a miner
pursuant to section 105(c)(3) of the Act.[15]
Consequently, the Secretary shall be provided with a copy of this decision so
that he may file a petition for assessment of civil penalty with this
Commission. The Secretary of Labor is directed to commence a civil penalty
proceeding against Veris for this matter.

So
Ordered.

/s/ William B.
Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Daniel
B. Lowe, P.O. Box 2608, Elko, NV 89801

David
M. Stanton, Esq., Goicoechea, Di Grazia, Coyle & Stanton, Ltd., 530 Idaho
Street, Elko, NV 89801

Veris
Gold U.S.A., Inc., HC 31 Box 78, Elko, NV 89801

Heidi
Strassler, U.S. Department of Labor, SOL-Regional Solicitor’s Office, 201 12th
Street South – 5th Floor, Arlington, VA 22202

Susan
Gillett Kumli, U.S. Department of Labor, Regional Solicitor’s Office, 90 7th
Street Suite 3-700, San Francisco, CA 94103

Bill
LeClair, 688 West Hastings Street, Suite 900, Vancouver, BC, V6B 1P1, Canada

Doug
Johnson, Court-appointed Monitor, c/o Ernst & Young, Inc., 700 West Georgia
Street, Vancouver, BC, V7Y 1C7, Canada

[1] As explained infra,
Veris’ attorney, private counsel David Stanton, moved to withdraw from
representation of Respondent Veris Gold USA, Inc. Attorney Stanton appeared on
the morning of the first day of the hearing and reiterated his request to
withdraw from representing Veris, a request made by Veris. The Court had no
option but to grant the request and it did so at the commencement of the
hearing.

[2]
As noted
in Getz
Coal Sales, Inc.,
2 FMSHRC 2172, 2176 (Aug. 1980) (ALJ):

The Commission’s
rules do not specifically address the question of the failure of a
party-respondent to appear at a hearing pursuant to notice. Rule 63, 29
C.F.R. § 2700.63 provides for summary disposition of cases when a party fails
to comply with an order of a judge or the Commission’s rules. Subsection (b)
provides that when a respondent is found to be in default in a civil penalty
case the judge shall enter summary order assessing the proposed penalties a
final and directing that they be paid. Section 105(d) of the Act provides that
a mine operator be afforded an opportunity for a hearing in a
contested case so that he may contest the citation and any proposed civil
penalty assessment proposed by the Secretary.

In
Broken Hill Mining Co., 19 FMSHRC 477 (Mar. 1997), the judge issued a
default order because Respondent failed to appear at the hearing, but the judge
also stated that the Secretary had proven all violations by a preponderance of
the evidence after hearing testimony from the Secretary. The Commission
remanded the case to another judge for clarification of the judge’s original
preponderance of the evidence determination. Id. On remand, the judge noted
that “[s]ection 2700.66 of Commission regulations, 29 C.F.R. § 2700.66 (1996), provides that
when a party does not appear at a hearing, the judge may find the party in
default without issuing a show cause order.” Broken Hill Mining Co.,
19 FMSHRC 751, 751-52 (Apr. 1997) (ALJ). At the earlier hearing, following a
motion for default judgment from the Secretary, the original judge directed
that the hearing would proceed with the testimony of the inspectors so that there
was a factual basis to assess the civil penalty. Id. at 752. After
hearing the testimony regarding each citation, the judge affirmed the citation.
Id. The remand decision also noted that

[s]ection
2700.1(a) of Commission regulations, 29 C.F.R. § 2700.1 (a), provides that the Commission
and its judges shall be guided so far as practicable by the Federal Rules of Civil Procedure. Rule 55 (a) of the
Federal Rules of Civil Procedure provides that when a party against
whom a judgment for relief is sought fails to plead or otherwise defend, the
party’s default may be entered. . . . In applying Rule 55, the courts have stated that in a
default situation all well pleaded allegations are taken as true. Benny v. Pipes,
799 F.2d 489, 495 (9th Cir.
1986), cert denied, 484 U.S. 870, 108 S.Ct. 198 (1987). And when a
default judgment is entered, facts alleged in the complaint may not be
contested. Black v. Lane,
22 F.3d 1395, 1399 (7th Cir.
1994). The standard for appellate review of a default judgment is whether the
trial court committed an abuse of discretion. Johnson v. Gudmundsson, 35 F.3d 1104, 1117 (7th Cir. 1994). An entry of a default
judgment is not an abuse of discretion where a party who fails to appear at
a scheduled hearing, because such conduct strays from recklessness to bad
faith. Id.

Id.

[3] The Court parenthetically
noted that dirt on a lunchroom wall did not sound like much of a safety or
health violation, although it stated it would keep an open mind about the
claim.

[4] As to the expletive
expression, allegedly made by Mr. Jones, the Court noted that it was not

cognizable protected activity when one sends an e-mail
as described here that Mr.

Jones had screamed at Cheryl Garcia saying that Ms.
Garcia and Mr. Lowe were trying to f--- him. Tr. 30.

[5]
Lowe held
that position for about a year and two to three months, but then, in July 2013,
he was demoted to the position of Compliance Coordinator by Joe Driscoll, who
came on as the mine’s new general manager. Tr. 55. The demotion only lasted a
month and Driscoll was terminated from Veris’ employment. Lowe was then
reinstated to his original position and remained there until his firing. Tr.
57.  

[6] This prompted Lowe to
send another email to Dickson, this time copying Bill Hofer. The email text of Exhibit
C-2 provided:

Subject:
Speeding company vehicle. Importance: High. Graham, while traveling northbound
on Nevada 225 this morning on the way to work and at approximately 6:15 I
observed a vehicle coming up behind me at a high rate of speed. As I passed
where the roads splits the farm the vehicle was literally so close to the rear
of my vehicle I could not see the vehicle’s headlights. Once I passed the farm
the vehicle overtook my vehicle and I could see that it was Veris Gold light
vehicle with the number LV 3907 on the front fender.

Tr. 50. Lowe estimated the vehicle speed at 85 to 90
mph. Tr. 51. He noted that the license LV 3907 is assigned to Chris Jones. Id.
Lowe received no email response to his message. Id. As noted, this claim
cannot be considered, per the holding in Hatfield, as a separate act of
discrimination.

[7] Near the end of the
hearing Lowe was able to locate a copy of his employment release, which he
refused to sign. Ex. C-3; Tr. 98. Lowe refused to agree to the terms of that
document, entitled, “Severence Release and Waiver.” On the last page, Lowe’s
signature appears, below the words “Refused to sign.” Two other signatures
appear on that page. Ex. C-3 at 6.

[8] According to the
uncontroverted testimony, the conflict between Lowe and Jones had its
antecedent months earlier, in October 2012, when Jones wanted access to the
chlorination building. Tr. 71-72. That building had been closed and removed
from service. Tr. 72. Jones approached Lowe, wanting access to the building,
and Lowe advised him as the procedure to be employed to gain access. Id.
However, Jones ignored the procedure and was discovered entering the building
through a window. Id. Lowe believed Jones’ act was insubordination. Id.

[9] The Elko
Daily Free Press reported on June 25, 2015, that Veris Gold Corp. “sold its
Elko County gold mines Thursday to Jerritt Canyon Gold LLC, but most of the
miners will remain on the job. The assets sold include the Jerritt Canyon
facilities. . . . Jerritt Canyon Gold President and CEO Greg Gibson said the
majority of the 250 Veris Gold employees at the site were hired. . . .
Jerritt Canyon Gold is a subsidiary of Sprott Mining which is controlled by Canadian
billionaire Eric Sprott. Jerritt Canyon Gold owns 80 percent of Veris Gold’s
assets and the other 20 percent is owned by Whitebox Asset Management, Gibson
said. ‘Mining was not suspended. Mining will be increased,’ Gibson said. . . . He
said the site is on track to produce 185,000 to 200,000 ounces of gold this
year. The sale of the site happened after a Canadian bankruptcy court ordered
Veris Gold to sell its assets. Veris Gold had filed under Companies’ Creditors
Arrangement Act in Canada, which is a type of bankruptcy protection, in June of
last year. It was operating under the protection of the CCAA and the U.S.
Bankruptcy Code since June 9, 2014.” Marianne K. McKown, Veris Gold sells
Jerritt Canyon, Elko Daily Free Press (June 25, 2015), http://elkodaily.com/mining/veris-gold-sells-jerritt-canyon/article_9a84e5c1-c299-5179-8bc6-49f02d15e513.html.

[10] Each of the documents
referenced in this section of this decision, all of which were transmitted
electronically to the Court by then counsel for Veris, Attorney David Stanton,
have been made part of this record.

[11] See, for example, Sec’y
on behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394 (Mar. 1987), in which
the Commission reiterated its successorship doctrine as set forth in Munsey
v. Smitty Baker Coal Co., 2 FMSHRC 3463 (Dec. 1980), aff’d in relevant
part sub nom. Munsey v. FMSHRC, 701 F.2d 976 (D.C. Cir. 1983). There,
the Commission approved application of nine factors to be considered when
evaluating the appropriateness of successor liability.   

[12] For example, the
Commission alluded to such an approach at the appropriate time in Simpson v.
Kenta Energy, 8 FMSHRC 312 (Mar. 1986).

[13] The reference to owner Eric
Sprott is consistent with the reporting in the Elko Daily Free Press on June
25, 2015, as reflected in footnote 9, supra.

[14] In Local Union 2274,
UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (Nov. 1988), the Commission
directed that in discrimination cases it would use the short-term Federal rate
applicable to the underpayment of taxes as the rate for calculating interest
for periods commencing after December 31, 1986.

[15] The provision, 29 C.F.R.
§ 2700.44, “Petition for assessment of penalty in discrimination cases,”
states, in relevant part:

(b) Petition
for assessment of penalty after sustaining of complaint by miner, representative
of miners, or applicant for employment. Immediately upon issuance of a
decision by a Judge sustaining a discrimination complaint brought pursuant to
section 105(c)(3), 30 U.S.C. 815(c)(3), the Judge shall notify the Secretary in
writing of such determination. The Secretary shall file with the Commission a
petition for assessment of civil penalty within 45 days of receipt of such
notice.