Shawn Johnson v. David Huffman Trucking Inc.

Plain-English summary

An earlier decision found that David Huffman Trucking unlawfully discharged Shawn Johnson in violation of the Mine Act's discrimination protections. After the parties could not agree on damages, Judge Gary Melick calculated Johnson's lost earnings through the date he left the labor market to become a full-time student. The judge awarded $9,148.16 in back pay, reduced by interim earnings, plus interest. He also awarded Johnson's counsel $8,984.09 in attorney fees and expenses.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1) and 815(c)(3)
• Outcome: Huffman Trucking was ordered to pay Johnson $9,148.16 plus interest and to pay $8,984.09 in attorney fees and expenses.
• Key point: Back pay was based on Johnson's average prior earnings, limited to the period before he became a full-time student, and reduced by his interim earnings.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

January 10, 20008

SHAWN JOHNSON,

Complainant

v.

DAVID HUFFMAN TRUCKING INC.,

Respondent

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DISCRIMINATION PROCEEDING

Docket No. WEVA 2007-235-D

HOPE CD 2006-04

No. 10 A Mine

Mine ID 46-08852 FVV

DECISION

Appearances:  Mark L. French, Esq., Criswell & French, PLLC, Charleston, West Virginia, on
behalf of the Complainant;

Daniel R. Schuda, Esq., Schuda & Associates, PLLC, Charleston, West Virginia,
on behalf of the Respondent.

Before:            Judge Melick

This case is before me upon the complaint by Mr. Shawn Johnson pursuant to Section
105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the “Act.”
Following hearings, a decision was issued on August 27, 2007, finding that David Huffman
Trucking, Inc., (Huffman Trucking) discharged Mr. Johnson in violation of Section 105(c)(1) of
the Act. The parties were directed to confer regarding the possibility of settlement of damages
and attorney fees, however, they were unsuccessful and hearings were held on those issues on
November 29, 2007. At these hearings, the parties agreed to submit additional information
regarding these issues and to again confer regarding possible settlement. On December 11, 2007,
counsel for the Complainant submitted additional information regarding the issues and reported
that he and counsel for the Respondent were unable to reach any agreement. Huffman Trucking
responded on December 20, 2007, and the Complainant filed a rebuttal on December 27, 2007.

Damages

No damages other than back pay (and attorney fees) are claimed by the Complainant. The
statutory authority for the award of back pay is derived from Section 105 of the Act, which
empowers the Commission to remedy discrimination by 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. Secretary on behalf
of Dunmire and Estle v. Northern Coal Company, 4 FMSHRC 126, 142 (February 1982). Under
normal employment circumstances back pay is the sum equal to the gross pay the employee
would have earned but for the discrimination less his actual net interim earnings. Northern Coal
Company at 144.

Mr. Johnson’s employment history with Huffman was intermittent as a result of
significant absenteeism. The calculation for Johnson’s back pay award will therefore be made by
taking Mr. Johnson’s average gross earnings using the bi-weekly payroll periods of Huffman
Trucking. In this regard it is noted that during the 25 two-week pay periods that Johnson was
employed by Huffman Trucking, he earned a total of $21,750.55. This is based upon the payroll
summaries for the years 2005 and 2006 for Mr. Johnson reflecting his gross pay as well as
information as to each of the individual bi-weekly paychecks received by Mr. Johnson during
that period. His average gross pay for each two week period was therefore $870.02.

There is no dispute that Mr. Johnson’s employment with Huffman Trucking ended on
April 14, 2006, and that he left the labor market on January 19, 2007, to become a full time
student. During this period he worked for Kenton Meadows Co., Inc. (Kenton Meadows), from
July 27, 2006, through January 18, 2007. Johnson’s back pay award must therefore be based
upon 41 weeks or 20.5 bi-weekly pay periods (less net interim earnings). 20.5 pay periods at
$870.02 equals $17,835.41. At Kenton Meadows, Johnson worked 804 regular time hours at a
rate of $9.00 per hour and 107.5 overtime hours at a rate of $13.50 per hour.

Accordingly
Johnson’s interim earnings amounted to $8,687.25. Johnson is therefore entitled to back pay of
$9,148.16, plus interest paid to the date of payment in accordance with the Commission’s
decision in United Mine Workers of America v. Clinchfield Coal Company, 10 FMSHRC 1493,
1504-1507 (November 1988).

Attorney Fees

For the reasons stated in the memorandum issued this date as an appendix to this decision
under seal for privacy reasons, counsel for the Complainant is hereby awarded attorney fees and
expenses of $8,984.09.

ORDER

David Huffman Trucking Inc., is hereby directed to pay to the Complainant Mr. Shawn Johnson
within 30 days of the date of this decision back pay of $9,148.16, plus interest through the date of
payment to be calculated in accordance with the Commission decision in United Mine Workers
of America v. Clinchfield Coal Company, 10 FMSHRC 1493, 1504-1507 (November 1988). In
addition, David Huffman Trucking Inc., is directed to pay to Mark L. French, Esq., attorney fees
and expenses of $8,984.09, within 30 days of the date of this decision.

Gary Melick

Administrative Law Judge 

Distribution: (Certified Mail)

Mark L. French, Esq., Criswell & French, PLLC, 405 Capitol St., Suite 1007, Charleston, WV
25301

Daniel R. Schuda, Esq., Schuda & Associates, PLLC, 232 Capitol Street, Suite 200, P.O. Box
3425, Charleston, WV 25335-3425

/lh