FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004-1710

Telephone:  (202) 434-9980

Fax:  (202) 434-9949

 

February 26, 2013

TODD DESCUTNER,  
Complainant,  

v.

NEWMONT USA, 
Respondent

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 DISCRIMINATION PROCEEDING

DOCKET NO. WEST 2011-523-DM
No. WE-MD-2010-18


Mine: Leeville Mine
Mine ID: 26-02512

 

DECISION

 

 Appearances:   Larson A. Welsh, Esq., Cogburn Law Offices, on behalf of Todd Descutner

 

                       Kristin R. White, Esq. &  Karen L. Johnston, Esq., Jackson Kelly   

                       PLLC, on behalf of Newmont USA

 

Before:            Judge David F. Barbour

           

            In my October 31, 2012 decision I found that the complainant, Todd Descutner, had established a discrimination claim under § 105(c)(3) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”) and that he was entitled to relief, but that the record was insufficient to determine his monetary damages. Therefore, I retained jurisdiction over the case and ordered the parties to confer to determine whether they could reach an agreement regarding the remedies due to the complainant and the attorney’s fees due to his counsel. The parties subsequently came to an accord on some, but not all of these issues. On January 09, 2013, I issued an order awarding partial remedies, providing some consultative guidelines and directing the parties to engage in further discussions regarding Descutner’s overtime pay and reasonable attorneys’ fees.  On February 22, 2013, the parties submitted a Joint Motion to Approve Agreement to the Court, which resolved all outstanding remedial issues. The motion, which was signed by Descutner, his counsel and counsel for the Respondent, stated that the following agreements had been reached:

 

1.                  The parties have agreed [that the complainant is entitled] to a total of $3,103.92 in overtime pay.

2.                  The parties have agreed [that the complainant is entitled] to a total of $94,720.29 in back pay.

3.                  The parties have agreed [that the complainant is entitled] to a total of $3,801.24 in interest.

4.                  The parties have agreed to a total of $52,388.00 in attorneys’ fees [payable] to the Cogburn Law Offices.

Jt. Mot. 1.

 

The signed motion also affirms that the Respondent, Newmont, “has submitted payment to Descutner and to the Cogburn Law Offices as outlined above.” Jt. Mot. 2.

 

            The joint motion is hereby GRANTED. This decision resolves all outstanding issues. ACCORDINGLY, this case is DISMISSED.

 

 

 

                                                                              /s/ David F. .Barbour          

                                                                              David F. Barbour

                                                                              Administrative Law Judge

 

 

Distribution (Certified Mail):

 

Kristin R. White, Esq. & Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street,

 Suite 2150, Denver, CO 80202

 

Andrew L. Rempfer, Esq., and Larson A. Welsh, Esq., Cogburn Law Offices, 2879 St. Rose Pkwy., Suite 200, Henderson, NV 89052

 

Jay Mattos, Director, MSHA, Office of Assessments, U.S. Department of Labor, 1100 Wilson Blvd., 25th Floor, Arlington, VA 22209

 

/ca