Triplett Brothers Excavating (ALJ decision, March 14, 1995)

Plain-English summary

Richard E. Gawthrop brought a discrimination complaint against Triplett Brothers Excavating after his January 11, 1994 discharge. An earlier decision found that the discharge was discriminatorily motivated in violation of section 105(c) of the Mine Act. The parties then stipulated to $9,086 in back pay and interest, $2,914 in incidental damages, and $10,000 in economic reinstatement instead of actual reinstatement. Judge Jerold Feldman granted the proposed order for relief, approved the total $22,000 payment, and ordered the records concerning the discharge expunged.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c)(3)
• Outcome: The stipulated $22,000 relief was approved, with payment accepted in lieu of actual reinstatement and discharge records ordered expunged.
• Key point: After liability was established, the parties resolved the monetary and reinstatement relief through a stipulated final order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF A D M INISTRA TIV E LA W JUDGES 2 SK YLINE, 10 th FLOOR
5203 LEESBURG PIK E
FA LLS CHURCH, V IRGINIA 22041

March 14, 1995

RICHARD E. GAWTHROP,
: DISCRIMINATION PROCEEDING
Complainant
:
v. : Docket No. WEVA 94-286-D
: MSHA Case No. MORG CD 94-02
TRIPLETT BROTHERS EXCAVATING,
:
Respondent
: Grant Town Power Plant

DECISION

Appearances: Richard E. Gawthrop, pro se, Rivesville, West Virginia, and, Thomas G. Dyer, Esq., Clarksburg, West Virginia, on the Proposed Order for Relief, for the Complainant;
Charles E. Anderson, Esq., Fairmont,
West Virginia, for the Respondent.

Before: Judge Feldman

This case is before me based upon a discrimination complaint filed on June 7, 1994, pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. ' 815(c)(3), by the complainant, Richard E. Gawthrop, against the respondent, Triplett Brothers Excavating, Inc. This matter was heard on October 13, 1994, in Morgantown, West Virginia. On January 23, 1995, a decision on liability was released wherein it was determined that Gawthrop's January 11, 1994, discharge was discriminatorily motivated in violation of section 105(c) of the Act. 17 FMSHRC 64.

With regard to damages, the parties were ordered to confer for the purpose of stipulating the appropriate incidental damages and back pay, plus interest, less deductions for unemployment and earnings from other employment. The parties were also ordered to stipulate to economic reinstatement if the complainant declined reemployment by the respondent. The parties were ordered to file a Proposed Order for Relief if they were able to stipulate to the appropriate relief in this matter. 17 FMSHRC at 76-77.

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A joint Proposed Order for Relief was filed on March 6,
1995. The terms of the parties' proposal are that Gawthrop will accept $10,000 as economic reinstatement in lieu of actual reinstatement. The parties stipulated that Gawthrop's back pay plus interest, compounded from his January 11, 1994, discharge to the present time, less deductions for unemployment and other earnings, amounts to $9,086. Finally, the parties stipulated to incidental damages of $2,914 related to additional transportation costs associated with his reemployment as well as other economic losses. Consequently, the parties proposed a total of $22,000 as the appropriate relief in this case. Payment of $22,000 was made to Gawthrop by the respondent on February 27, 1995.

                          ORDER

 In view of the parties' stipulations, the Proposed Order for

Relief IS GRANTED establishing the $22,000 payment to Gawthrop as the appropriate relief under section 105(c) of the Act. IT IS ORDERED that all records pertaining to Gawthrop's January 11, 1994, discharge be expunged. This decision and the January 23, 1995, decision on liability constitute the final disposition in this proceeding.

                          Jerold Feldman
                          Administrative Law Judge




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Distribution:

Mr. Richard E. Gawthrop, Route 1, Box 253-A, Rivesville, WV 26588 (Certified Mail)

Thomas G. Dyer, Esq., P.O. Box 1716, Clarksburg, WV 26301 (Certified Mail)

Charles E. Anderson, Esq., 200 Adams Street, Fairmont, WV 26554 (Certified Mail)

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