Secretary of Labor on behalf of Cheryl Garcia v. Veris Gold U.S.A., Inc.

Plain-English summary

A prior order temporarily reinstated Cheryl Garcia to her former job but declined to require Veris Gold to pay her without receiving her labor. The Secretary sought reconsideration after management changes and Garcia's concerns about returning to the mine, asking the judge to impose economic reinstatement over the operator's objection. Judge David P. Simonton held that the Mine Act generally contemplates work in exchange for wages during temporary reinstatement and that broader remedies become available only after findings on the discrimination claim's merits. He found no independently supported extreme circumstances or bad faith that would justify imposing economic reinstatement at the preliminary stage. The motion was denied, and the parties were directed to negotiate in good faith and report on the reinstatement and settlement discussions.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45
• Outcome: The Secretary's motion for reconsideration and compulsory economic reinstatement was denied.
• Key point: Temporary reinstatement ordinarily returns a miner to work for wages, while economic reinstatement without the operator's consent requires exceptional support that was absent here.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

August 22, 2014

SECRETARY OF LABOR, (MSHA),

on behalf of Cheryl Garcia,

Complainant,

v.

VERIS GOLD U.S.A., INC.,

Respondent.

DISCRIMINATION PROCEEDING

Docket No.  WEST 2014-789-DM

MSHA Case No.: WE MD 14-16

Jerritt Canyon Mill Mine

Mine ID: 26-01621

ORDER DENYING THE COMPLAINANT’S MOTION FOR
RECONSIDERATION

This motion is before me under section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C.
§ 815(c).  On July 16, 2014, I granted the Complainant’s Application for Temporary
Reinstatement but denied the Secretary’s
request to order economic reinstatement without the agreement of the
Respondent.  Sec’y of Labor o/b/o Cheryl Garcia v. Veris Gold, Inc.,
2014 WL 3725868, *11-12 (July 2014)(ALJ) (“July 16 Order”).  On August 4, 2014,
the Secretary subsequently filed a Discrimination Complaint on behalf of Ms.
Garcia with the Commission.  Cheryl Garcia Discrimination Complaint.  On August
15, 2014, the Secretary filed a Motion for Reconsideration of the July 16 Order
and again sought the temporary economic reinstatement of the Complainant over
the Respondent’s objections.  Sec’y Mot., 1, 8.  For the reasons that follow,
the Secretary’s Motion to Reconsider is DENIED.

JURISDICTION

Pursuant
to the Commission’s procedural regulations, this court retained jurisdiction
over the temporary reinstatement proceeding after the issuance of the July 16 Order.
 29 CFR § 2700.45(e) 4.  However, if a party seeks review of the temporary
reinstatement order itself, Commission rules direct the party to file a
Petition for Review of Temporary Reinstatement Order with the Commission within
five business days after receipt of the order.  29 CFR § 2700.45(f).  Instructions
regarding these specific procedures for review were distributed to parties with
the July 16 Order.  Thirty days after the distribution of the July 16 Order, the
Secretary submitted a “Motion for Reconsideration of Decision & Order
Denying Temporary Economic Reinstatement for Cheryl Garcia and Supporting Brief”
to this court.  The Secretary did not specify the procedural basis for the
“Motion for Reconsideration” before proceeding to the merits of the
Complainant’s argument.  Sec’y Mot., 1.  Given the date and title of the
Secretary’s Motion, I find that the “Motion for Reconsideration” would
ordinarily be improperly filed and time barred by 29 CFR § 2700.45(f).         

However,
the Secretary does allege that changes in Respondent’s management personnel after
the July 16 Order should move this court to order economic reinstatement on the
basis of potential increased hostility at the mine.  Sec’y Mot., 6.  As such, I
have evaluated the Secretary’s argument as a Motion for Modification of the
July 16 Temporary Reinstatement Order on the basis of changed circumstances rather
than a reconsideration of the findings of the July 16 Order.   

THE SECRETARY’S MOTION

The
Secretary states that a Commission ALJ has previously ordered temporary
economic reinstatement over the objection of a complainant miner when the Court
could “reasonably infer” that physical reinstatement would result in workplace
disruption.  Sec’y Mot, 2; Sec’y of Labor o/b/o Thurman Wayne Pruitt v.
Grand Eagle Mining, Inc., 33 FMSHRC 1738, 1739 (July 28, 2011) (ALJ
Melick).  The Secretary argues from this holding that it is similarly
appropriate to order economic reinstatement over the objections of the
Respondent when there is evidence that the miner would suffer “intolerable
harassment” in returning to work.  Sec’y Mot., 3.  The Secretary argues that
courts outside the Commission have “overwhelmingly concluded” that situations
of evident antagonism in the workplace render physical reinstatement a
meaningless remedy and require front pay as the most appropriate solution.  Sec’y
Mot., 3 n.1(citing Lewis v. Fed Prison Indus. 953 F.2d 1277(11th
Cir. 1992); Prudential Federal Sav. and Loan Ass’n, 763 F. 2d 1166,
1172-73 (10th Cir. 1985)).

The
Secretary goes on to detail Ms. Garcia’s allegations of instances of rude and
harassing statements made by then Assistant Mill Manager Chris Jones to Ms.
Garcia.  Sec’y Mot., 4.  The Secretary argues that as the Respondent allegedly
failed to adequately respond to Ms. Garcia’s complaints regarding Chris Jones,
Ms. Garcia was “constructively discharged” and forced to resign to avoid
continued hostility.  Sec’y Mot., 5 (citing Sec’y of Labor o/b/o Lonnie
Bowling et al, 21 FMSHRC 265, 278 (Mar. 1999).

The
Secretary additionally states that Chris Jones has recently been promoted to
Mill Manager at the Jerritt Canyon Mine and that her former supervisor Jim
Johnston has left the mine.  Sec’y Mot., 6.  The Secretary submitted affidavits
from Ms. Garcia and the Secretary’s counsel of record, Ms. Seema Patel, stating
that Ms. Garcia suffered increased anxiety and fluctuating blood sugar levels
when considering the Respondent’s offer of physical reinstatement to her
previous position.  Garcia Aff. 2-3; Patel Aff. 2-3.  The Secretary contends
that Ms. Garcia’s anxiety regarding potential harassment, particularly from the
recently promoted Chris Jones, prevented her from returning to her previous
position on a full time basis.  Sec’y Mot., 7.  The Secretary finally argues
that the parties’ inability to agree to a physical reinstatement plan and Ms.
Garcia’s anxiety regarding the Respondent’s proposed work plan should motivate
this court to order temporary economic reinstatement over the objections of the
Respondent.  Id. at 7-8.

ANALYSIS

Section
105(c)2 of the Mine Act mandates that the Commission shall, after finding that
miner’s discrimination complaint is non-frivolous, “order the immediate
reinstatement of the minder pending final order on the complaint.” 30 USC 815
(c)2.  The Commission has stated that “The
temporary reinstatement provisions contemplate that the miner will provide the
operator labor in return for wages and benefits.”  Sec’y of Labor v. North
Fork Coal, 33 FMSHRC 589,592 (Mar. 2011).  As such, Commission ordered temporary
economic reinstatement is not a remedy provided for or anticipated by the Mine
Act.

Indeed, as noted within the July 16
Order, a Commission ALJ has previously held that “parties
have no right to require or impose on each other, nor does the Court have
authority to impose, economic reinstatement terms that have not been negotiated
and agreed to.”  Sec’y of Labor o/b/o Kenneth Wilder v. Bledsoe Coal,
33 FMSHRC 2031, 2032 (August 2011) (ALJ Gill) (citing Sec'y of Labor v. North Fork Coal Corporation, 33 FMSHRC 92).  Similarly, it appears that the
Commission has only ruled on the enforceability of economic reinstatement when
all parties, including the respondent, have voluntarily agreed to the economic
reinstatement and then subsequently sought modification or tolling.  See Sec’y
o/b/o Gatlan v Ken American Res., 21 FMSHRC 1050, 1051(remanding tolling
effect of company -wide layoffs on preliminary economic reinstatement agreement
to ALJ); Sec’y of Labor v. North Fork
Coal, 33 FMSHRC 590-91(ruling on requested modifications to voluntary
temporary economic reinstatement plan).  

However, at the request of the
operator, an ALJ has ordered economic reinstatement over the objections of the complainant
miner and the Secretary.  Wayne Pruitt, 33 FMSHRC 1738-39.  In concluding
that returning the miner to work would result in safety risks, Judge Melick
noted that the miner had conceded at the temporary reinstatement hearing that
he had previously backed a front end loader into a tail roller and caused
$30,000.00 in damages.  Id. at 1738.  As such, although specific
evidence regarding workplace disruption had not been presented at the temporary
reinstatement hearing, the judge was able to conclude from the corroborating
testimony of both parties that the miner presented a documented safety risk to
himself and others. Id.  In this case, the Respondent has not conceded any
of Ms. Garcia’s discrimination allegations and has submitted an affidavit
stating that Respondent’s management investigated Ms. Garcia’s allegations
regarding Chris Jones and found them meritless.  Ward Declaration, 3.    

Nevertheless, the Secretary  states
that “Section 105(c) 2 of the Mine Act grants the Commission broad authority in
discrimination proceedings ‘to take such affirmative action to abate the
violation as the Commission deems appropriate including, but not limited to,
the rehiring or reinstatement of the miner to his former position with back pay
and interest.”  Sec’y Mot. 2-3;Wayne Pruitt, 33 FMSHRC 1739; 30 USC
815(c) 2.  However, after reviewing the entirety of Section 105(c) 2, this
court is confident the expansive range of remedies listed above applies only to
a decision on the merits of a discrimination complaint itself, and is not
customarily available within the temporary reinstatement proceedings:

… Such investigation shall
commence within 15 days of the Secretary's receipt of the complaint, and if
the Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on the
complaint. If upon such investigation, the Secretary determines that the
provisions of this subsection have been violated, he shall immediately file a
complaint with the Commission, with service upon the alleged violator and the
miner, applicant for employment, or representative of miners alleging such
discrimination or interference and propose an order granting appropriate
relief. The Commission shall afford an opportunity for a hearing … and
thereafter shall issue an order, based upon findings of fact, affirming,
modifying, or vacating the Secretary's proposed order, or directing other
appropriate relief. Such order shall become final 30 days after its issuance.
The Commission shall have authority in such proceedings to require a person
committing a violation of this subsection to take such affirmative action to abate
the violation as the Commission deems appropriate, including, but not limited
to, the rehiring or reinstatement of the miner to his former position with back
pay and interest. …

30 USC 815 (c) 2 (emphasis added).

Given the differing scopes of
relief  provided for within Section 105 (c) 2 , the language quoted by the
Secretary applies only after the Commission has provided an “opportunity for a
hearing”, found that a “person commit(ed) a violation of this subsection” and
issued an order “based upon findings of fact.”
[1]
30 USC 815(c)2.  Indeed, the Commission has held that retroactive relief such
as backpay and interest listed by the statute as possible remedies after the
finding of “a violation” are not available at the temporary reinstatement
stage.  Sec’y of Labor v. North Fork Coal, 33 FMSHRC 592 (“The issue of
backpay usually does not arise (during temporary reinstatement) since the miner
is not compensated for the earlier period of time between termination and the
judge’s order temporarily reinstating him or her”).  Thus, as this court has
not yet made the findings of fact necessary to order the expansive relief
possible after a hearing on the merits, the “immediate reinstatement of the
miner” to her former position remains the sole remedy directly provided for by
the Mine Act at this stage.  30 USC 815(c)2.       

In Pruitt, Judge Melick justified
the decision to order temporary economic reinstatement over the miner’s
objections by finding that, “providing a miner with economic reinstatement by
paying full salary and benefits fulfils the policy justifications of the Act by
protecting the miners’ financial well-being while he awaits trial on the
merits.”   Wayne Pruitt, 33 FMSHRC 1739.  However, an order of economic
reinstatement without the operator’s consent would deprive the Respondent of
the labor it generally receives during temporary physical reinstatement.  See
Sec’y of Labor v. North Fork Coal, 33 FMSHRC 592-93 (“The temporary reinstatement provisions contemplate that
the miner will provide the operator labor in return for wages and benefits”).

Indeed, the Secretary has not
presented, nor has this court identified, a single Commission case in which the
operator was ordered to provide temporary economic reinstatement over its
objections.  As such, I find this court could only issue such an order when presented
with a clear showing of extreme circumstances that would render temporary physical
reinstatement an objectively meaningless remedy.  Sec’y Mot., 3.

Thus far, the Secretary has not presented
any independent corroborating evidence of Ms. Garcia’s allegations of workplace
hostility and personal anxiety.  The submitted affidavits of Ms. Garcia and her
counsel are not supplemented by documentary evidence or third party affidavits.[2]
 The Respondent submitted multiple affidavits prior to the July 16 Order that rebutted
Ms. Garcia’s allegations of discrimination and workplace hostility.  Ward
Declaration, 3; Culver Declaration, 3-4.  During a conference call concerning
this motion, Respondent’s counsel stated that they disputed Ms. Garcia’s
harassment allegations but reiterated that they were confident Ms. Garcia could
return to work at the mine in a productive fashion.  Commission precedent precludes
this court from making credibility determinations or detailed findings of fact during
the temporary reinstatement proceedings.  Secy of Labor o/b/o Albu v.
Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999).  Thus, given the
underlying dispute of fact regarding the mine’s workplace environment, it would
be inappropriate at this point to rule that Ms. Garcia is likely to face
hostility at the Respondent’s mine if she returned to her previous position.  In
addition to findings regarding the occurrence of workplace harassment, this
court would be required to determine whether or not that alleged hostility was
likely to cause the anxiety alleged by Ms. Garcia and whether or not that
anxiety was significant enough to prevent Ms. Garcia from returning to work.  It
would again be inappropriate to make these sorts of fact and credibility
dependent determinations on the basis of the Complainant’s self-supporting affidavits.
 Indeed, any attempt to make a detailed finding of fact at this preliminary
stage could prejudice either or both of the parties’ positions at the merits
proceedings.  

The Secretary’s argument that
courts outside the Commission have awarded front pay in lieu of actual
reinstatement ignores the procedural stance of the cited cases.  Lewis v.
Fed Ped Prison Indus. 953 F. 2d at 1280-81 (awarding front pay in
constructive discharge case after a hearing on the merits that included
testimony from corroborating doctor); Prudential Federal Sav. And Loan Ass’n,
763 F. 2d at 1172-73 (awarding front pay after a jury trial when respondent
directed explicit hostility towards the plaintiff during the trial).  Only after
full hearings on the merits did these courts determine that the plaintiffs had
successfully met the evidentiary standard necessary to demonstrate constructive
discharge and award front pay  Id.  As such, the Complainant’s request
for an administrative order of economic reinstatement prior to a hearing
on the merits lacks authoritative support.[3]

Finally,
the Secretary has not produced evidence that the Respondent acted in bad faith
regarding the proposed physical reinstatement plan.  The Respondent made Ms.
Garcia an initial offer of full time reinstatement to her previous position as
an Industrial Hygienist with full benefits on July 22, 2014.  Garcia Aff., 2.  Ms.
Garcia did not accept this offer and requested that she be allowed to work part-time
weekend shifts on a 4-week trial basis while she continued to work at her
current job.  Id. at 3.  The Respondent rejected Ms. Garcia’s
counter-offer and insisted that she return to work on a full time basis by Aug
4, 2014.  Id. at 4.  By offering to reinstate Ms. Garcia to her previous
full-time position with benefits the Respondent clearly attempted to comply
with this court’s July 16 Order.  During a teleconference, Respondent’s counsel
explained that although the Respondent was willing to reinstate Ms. Garcia to
her previous position in order to comply with the July 16 Order, it did not
have the financial ability to create a separate part-time position in order to
satisfy Ms. Garcia’s counteroffer.  I find the Respondent’s explanation of
their position reasonable and absent of any apparent malice towards Ms. Garcia.
 Section 105(c) 2 of the Mine Act clearly empowers the Commission to reinstate a
miner to her previous position after finding that her discrimination complaint
is non-frivolous.  However, this court is unaware of any authority that requires
an operator to agree to, or the Commission to impose, temporary reinstatement
terms that differ significantly from the work agreement in place prior to the
discrimination claim.  

ORDER

For the reasons stated above, the
Secretary’s Motion to Reconsider is DENIED.  The parties are directed to
conduct good faith negotiations on the standing temporary reinstatement order
in conjunction with settlement efforts on the associated merits proceedings. The
parties shall provide a status update on these matters to this court no later
than September 24, 2014.

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution:  (First Class U.S. Mail)

Seema Patel, U.S. Department
of Labor, Office of the Solicitor

90 Seventh Street, Suite
3-700, San Francisco, CA 94103

Peter Gould, Squire Patton
Boggs (US) LLP

1801 California Street
Suite, 4900 Denver, CO 80202

[1]
Section 105(c)3 of the Mine Act provides that a complainant miner may proceed
on her own behalf even after the Secretary has determined that a violation has
not occurred and provides for the same  hearing opportunity and potential
remedies as set forth in Section 105(c)2. 30 USC 815 (c)2-3.

[2]
In noting the lack of independent corroboration for Ms. Garcia’s allegations, I
am not suggesting that independent documentation would be likely to alter my
ruling in this matter.  Indeed as stated above, a fact finding inquiry during
the temporary reinstatement proceeding would normally be improper.  I have
noted the lack of independent corroboration only to detail this court’s
inability to make the findings necessary to impose economic reinstatement upon
the Respondent.

[3]
The Lewis court itself indicated that, even after a hearing on the
merits, the judicial or administrative award of front pay was highly
discretionary, “Front pay remains a special remedy, warranted only by egregious
circumstances.  Although we have listed several factors that may prompt our
resort to this sort of relief, we emphasize that in many cases the remedy of
reinstatement will continue to suffice despite the presence of any one of these
factors.…Not every claim, however legitimate, will produce circumstances which
so clearly mandate the remedy of front pay.”  Lewis v. Fed Ped Prison Indus.
953 F. 2d 1281.