<DOC>
[DOCID: f:kn95613y.wais]
MOUNTAIN TOP TRUCKING, MAYES TRUCKING COMPANY, INC.
November 28, 2001
KENT 95-613-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
November 28, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
on behalf of WALTER JACKSON :
:
v. : Docket No. KENT 95-613-D
:
MOUNTAIN TOP TRUCKING :
COMPANY, INC., ELMO MAYES, :
WILLIAM DAVID RILEY, ANTHONY :
CURTIS MAYES, and MAYES :
TRUCKING COMPANY, INC. :
BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
Commissioners
DECISION
BY THE COMMISSION:
In this discrimination proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"), Administrative Law Judge Jerold
Feldman issued a second Decision on Remand setting the back pay
owed Complainant Walter Jackson for his discriminatory discharge
by Mountain Top Trucking Company ("Mountain Top"), Mayes Trucking
Company, Elmo Mayes, and Anthony Curtis Mayes (collectively the
"operators"). 22 FMSHRC 1391 (Dec. 2000) (ALJ). The Commission
granted Jackson's petition for discretionary review ("PDR")
challenging the judge's decision.[1] For the reasons that
follow, the judge's decision is affirmed in result.
**FOOTNOTES**
[1]: The Secretary of Labor, who originally filed and
presented the case on Jackson's behalf up through the second
remand to the judge, neither requested review of the judge's
decision nor filed a brief with the Commission. In addition to
the representation provided by the Secretary, Jackson has been
represented by private counsel throughout this case.
I.
Factual and Procedural Background
This is the third time the question of the back pay due
Jackson has been before the Commission.[2] Following an
evidentiary hearing, the judge determined that the operators'
February 1995 discharge of Jackson from his position as a truck
driver with Mountain Top was discriminatory and thus violated
section 105(c)(1) of the Mine Act.[3] Sec'y of Labor on behalf
of Bowling v. Mountain Top Trucking Co., 19 FMSHRC 166, 181-86
(Jan. 1997) (ALJ). The judge subsequently held that Jackson's
failure to attempt to reopen his temporary reinstatement
application after his layoff from alternative employment he had
obtained with Cumberland Mine Services ("Cumberland") constituted
a failure to mitigate damages, and consequently awarded him back
pay only through December 9, 1995, which was 60 days after
Jackson's layoff from Cumberland. 19 FMSHRC 875, 880-83 (May
1997) (ALJ). On review, the Commission reversed the judge's
failure-to-mitigate determination on the ground that the Mine Act
does not require a discriminatee to seek temporary reinstatement.
21 FMSHRC 265, 284-85 (Mar. 1999) (Jackson I).
In his first remand decision on the back pay due Jackson,
the judge found that, in the record originally before him and the
Commission, Jackson had not revealed his college attendance
during approximately 3 months of the 16-month back pay period.
21 FMSHRC 913, 917-18 (Aug. 1999) (ALJ). The judge concluded
that Jackson's college attendance was relevant evidence that
should be considered on the mitigation issue, but felt
constrained from addressing it by the limits placed on him by the
Commission's remand decision. Id. at 918. Consequently, the
judge awarded Jackson net back pay for the full back pay period,
a total of $32,642.00 plus interest. Id. at 918-19.
In reviewing the judge's first remand decision, we agreed
that there were legitimate outstanding issues regarding the
extent to which Jackson was available to work during the back pay
period, including whether Jackson had removed himself from the
job market during the time he attended college. Jackson II, 21
FMSHRC at 1213-14. Consequently, we again remanded the case to
the judge, with instructions to reconcile conflicting evidence on
those issues and make credibility resolutions where necessary.
Id. at 1214-15.
On the second remand, the judge held a 1-day hearing to take
further evidence on Jackson's efforts to find employment during
the back pay period, whether he suffered from any physical
impairment during the period that interfered with his ability to
work, and the impact, if any, of his college attendance on his
availability for full-time employment. 22 FMSHRC at 1393. At
the hearing, Jackson explained that, after losing his position
with Mountain Top in February 1995 and being unable to find
substitute employment, he enrolled in July 1995 for the upcoming
fall semester at Union College in Barboursville, Kentucky,
approximately 70 miles from his home. Id. at 1397; Tr. 27-33,
63-64. Jackson, who had previously obtained an Associate of Arts
degree, had the ultimate goal of teaching math or science in
junior or senior high school. 22 FMSHRC at 1397. Jackson's
class schedule required him to attend classes throughout the day
and well into the night on Tuesdays and Thursdays. Id.; Tr. 56.
The evidence regarding Jackson's efforts to find full-time
work while he was enrolled in college was all provided by him.
Before he began classes in late August 1995, Jackson started
working full-time as a general laborer with Cumberland. 22
FMSHRC at 1397. Once his classes began, Jackson at first worked
around his class schedule to put in 40 or more hours per week,
but was working less than 40 hours per week when he was laid off
from Cumberland in early October. Id. at 1397-98; Compl. Ex. 1.
The only other work Jackson obtained between that time and fall
1996 was a week-long position in December 1995 with a Cumberland
affiliate, the Garland Company. 22 FMSHRC at 1401; Tr. 37-42.
Contemporaneous evidence of Jackson's job search efforts
after his layoff from Cumberland consists of copies of the
completed forms for the period October 1995 to January 1996 that
he was obligated to submit every 2 weeks to receive unemployment
benefits from the Virginia Employment Commission ("VEC"). 22
FMSHRC at 1398-99; Tr. 32-33; Compl. Ex. 3. Each form listed a
single employment "contact" Jackson had made each Monday,
Wednesday, and Friday he was not working during that time period,
for a total of 38 contacts. 22 FMSHRC at 1399; Tr. 55-56; Compl.
Ex. 3.
To shorten his commute and reduce associated expenses, in
January 1996 Jackson transferred from Union College to Southeast
Community College ("SCC") in Cumberland, Kentucky, for the
semester that ended in May 1996. Tr. 66-67, 79-83. After
January 1996, Jackson's eligibility for unemployment compensation
ceased, so he had no copies of completed unemployment benefits
forms to submit as evidence. Tr. 237-38. For the period after
January 1996, Jackson testified that he continued looking for
work at the places he had applied to previously. Tr. 83-84.
With regard to both Union College and SCC, Jackson testified
he would have left school if necessary to take a full-time
position. Tr. 66, 70, 84. He also testified to using the
services provided by the Kentucky Unemployment Insurance Office
("KUIO"), and investigating employment possibilities to which it
referred him. Tr. 57-58. Jackson eventually obtained two
successive positions in late 1996 due to KUIO referrals, the
latter of which he still held in September 2000, at the time of
the hearing. Tr. 25-27, 58-63.
In his subsequent decision, the judge initially indicated
that he expected Jackson to show that, having enrolled in
college, he continued looking for a full-time job and would have
quit school if necessary to obtain one. 22 FMSHRC at 1397.
After finding that the evidence presented by Jackson was
insufficient to demonstrate that, the judge then addressed the
issue specified by the Commission on remand, which the judge
expressed as "the impact of Jackson's college attendance on his
availability for employment." Id. at 1399. The judge rejected
Jackson's assertion that he would have left college for a full-
time job, determining that the weight of the evidence was to the
contrary. Id. at 1401. Consequently, the judge concluded that
the back pay period should not include the time during which
Jackson was enrolled in college, and accordingly reduced the net
back pay amount the operators owe Jackson to $16,515.40, plus
interest. Id. at 1402-03.
II.
Disposition
The scope of the Commission's review of a judge's remedial
order, such as a back pay determination, is one of abuse of
discretion. See Sec'y of Labor on behalf of Reike v. Akzo Nobel
Salt Inc., 19 FMSHRC 1254, 1257-58 (July 1997); see also Miller
v. Marsh, 766 F.2d 490, 492 (11th Cir. 1985) (applying standard
to determination that discriminatee, as full-time student, was
not ready, willing, and available for alternative employment and
thus failed to mitigate her damages). "Abuse of discretion may
be found when `there is no evidence to support the decision or if
the decision is based on an improper understanding of the law.'"
Reike, 19 FMSHRC at 1258 n.3 (quoting Mingo Logan Coal Co., 19
FMSHRC 246, 249-50 n.5 (Feb. 1997)).
The Commission has previously held, including more than once
in this proceeding, that "[t]he operator bears the burden of
proof with respect to willful loss" of earnings by a
discriminatee seeking back pay. Metric Constructors, Inc., 6
FMSHRC 226, 233 (Feb. 1984) (citing Oil, Chem. & Atomic Workers
Int'l Union v. NLRB, 547 F.2d 598, 602-03 (D.C. Cir. 1976), cert.
denied, 429 U.S. 1078 (1977)), aff'd 766 F.2d 469 (11th Cir.
1985);[4] see also Jackson I, 21 FMSHRC at 284-85. With regard
to college attendance, in Jackson II the Commission stated that
"[t]he burden of proof is on the operators to show that [Jackson]
either did not seek [full-time] employment [during the time he
was enrolled in college], or would not have quit college if it
had become available." 21 FMSHRC at 1214 (citing Brady v.
Thurston Motor Lines, Inc., 753 F.2d 1269, 1274 (4th Cir. 1985)).
Despite that clear statement, the judge stated that it was
sufficient that the operators here came "forward with evidence of
Jackson's college attendance" for "the burden [to] shift[] to
Jackson to demonstrate that he was ready, willing and able to
work, and actively looking for full-time employment during the
back pay period." 22 FMSHRC at 1397. The judge erred in
describing the operator's burden to show a failure to mitigate,
particularly as to what must be shown regarding the impact of a
discriminatee's enrollment in school. We plainly stated in
Jackson II that "Jackson's status as a college student does not
necessarily mean that he must be found to have failed to mitigate
his damages during the time he was enrolled in college." 21
FMSHRC at 1214.
This clearly means that something more than the mere
evidence of college attendance is necessary to decide the issue
in favor of the operators. In Jackson II we required the
operators to additionally establish that either Jackson did not
seek full-time employment while in college or would not have quit
college to accept a full-time position. Id. Moreover, a review
of the case law applying the burden of proof we articulated in
Jackson II shows that courts look to the circumstances
surrounding the discriminatee's school attendance and
availability for full-time employment. For instance, in Miller
v. Marsh, the court took into account evidence that the
discriminatee's commitment to attend law school was unequivocal,
which was indicated by, among other things, her resignation from
her alternative employment upon entering school. 766 F.2d at
492. The judge here was therefore mistaken in believing that the
operators had no way of showing that Jackson did not make
reasonable efforts to find full-time work while in school, or
would not have quit school to accept a full-time position.
In addition, courts have rejected the notion that the
employer meets its burden of proof simply by establishing that
the discriminatee's school attendance potentially conflicts with
the ability to hold a full-time job. See Hanna v. Am. Motors
Corp., 724 F.2d 1300, 1307-09 (7th Cir.), cert. denied, 467 U.S.
1241 (1984). In the context of other federal discrimination
statutes, courts have rejected a per se rule that school
attendance is incompatible with the duty to mitigate damages.
See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 838-39 (4th Cir.
2001) (Family and Medical Leave Act); Dailey v. Societe Generale,
108 F.3d 451, 456-57 (2d Cir. 1997) (Title VII); Huegel v. Tisch,
683 F. Supp. 123, 125-26 (E.D. Pa. 1988) ("there is no per se
rule that back pay is tolled during periods of enrollment in an
education program. Rather, the issue is to be determined in the
context of the factual matrix in a particular case."); see also
Metric Constructors, 6 FMSHRC at 232 (determination of whether
duty to mitigate has been met "is made on the basis of the
factual background peculiar to each case").[5]
On its face, the judge's apportionment of the burden of
proving a failure to mitigate would appear to be an error of law
and thus sufficient grounds to hold that he abused his
discretion. See Jackson I, 21 FMSHRC at 284; Reike, 19 FMSHRC at
1258-60. However, the judge did not stop his analysis of the
evidence at this point, but instead went on to acknowledge the
Commission's remand instructions in Jackson II, recognizing that
there is no per se rule that school enrollment establishes a
failure to mitigate, and that the issue must be resolved on a
case-by-case basis. 22 FMSHRC at 1399. More importantly, the
judge also addressed the evidence which he found to contradict
Jackson's assertions that he was looking for a full-time position
and would have quit school if necessary to obtain one. Id. at
1400-01.
The judge, doubting that Jackson had actually applied to the
employers he listed on his unemployment benefits forms, refused
to credit Jackson's testimony and other evidence regarding his
job search while enrolled in college, as well as Jackson's
statements that he would have quit school if he had obtained a
full-time position necessitating that he do so. Id. at 1399,
1401-02. A judge's credibility determinations are entitled to
great weight and may not be overturned lightly. Farmer v. Island
Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh
Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has
recognized that, because the judge "has an opportunity to hear
the testimony and view the witnesses[,] he [or she] is ordinarily
in the best position to make a credibility determination." In
re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729
F.2d 713, 719 (11th Cir. 1984)), aff'd sub nom. Sec'y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998).
Here, record evidence supports the judge's negative
credibility determination. As the judge pointed out, Jackson was
less than forthcoming in this proceeding regarding his college
attendance during the back pay period. 22 FMSHRC at 1401.
Jackson did not divulge either semester of his college attendance
during the judge's original consideration of the back pay issue
(21 FMSHRC at 917), and only during the hearing held upon the
second remand did he reveal his SCC attendance. 22 FMSHRC at
1396; Tr. 220-25.
As for his job search, Jackson testified that he filed an
application at each employment contact listed on his VEC forms.
Tr. 44, 49-51, 78-79. However, Jackson checked the "no" box next
to "application taken" for all 38 of the employment contacts
listed on the forms. Compl. Ex. 3. Without addressing the
conflict between Jackson's testimony and the forms, the judge
found the forms to be an admission by Jackson that he did not
file applications with the employers listed. 22 FMSHRC at 1399,
1401. In addition, the judge found it significant that Jackson
changed his position before the VEC with respect to whether he
was available for full-time work. Id. at 1401. Jackson
initially reported to the VEC that he was not available for work
on Tuesdays and Thursday because of school, but after that stated
that he was available to work each day. Id. at 1399; Tr. 230-31;
Compl. Ex. 3. Based on the record evidence, we see no reason to
overturn the judge's negative credibility determination.
In addition to refusing to credit Jackson's testimony, the
judge drew several inferences to conclude that Jackson would not
have quit school to take a full-time position. The Commission
has recognized that "the substantial evidence standard may be met
by reasonable inferences drawn from indirect evidence." Mid-
Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984). In
considering the evidentiary effect of inferences, the Commission
has held that judges may draw inferences from record facts so
long as those inferences are "inherently reasonable and there
[exists] a rational connection between the evidentiary facts and
the ultimate fact inferred." Garden Creek Pocahontas, 11 FMSHRC
2148, 2153 (November 1989). In cases where more than one
reasonable inference could have been drawn from the record, it is
for the trier of fact to decide between those inferences. See
generally 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure � 2528 (2d ed. 1995).
In our opinion, some of the inferences the judge drew are
reasonable and rational, given the nature of the issue. For
example, the judge drew a negative inference from Jackson's
change in position before the VEC regarding whether he was
available for work each weekday. 22 FMSHRC at 1401. The judge
was persuaded that Jackson's initial answer on the VEC form that
he was not available for work on Tuesdays and Thursdays was the
more reliable information, because the later statements were made
by Jackson with the knowledge that he could not receive
unemployment benefits if he was not available to work each day.
Id. at 1399. The judge also found noteworthy Jackson's ability
to find a brief, full-time position between college semesters
with a Cumberland affiliate, the Garland Company. Id. at 1401.
Accordingly, we conclude that inferences the judge properly drew
support his failure-to-mitigate determination.[6]
While Jackson correctly points out that the operators
themselves did little to prove that he failed to mitigate his
damages (PDR at 17, 24),[7] employers may chose to use no more
than the discriminatee's own testimony to show his failure to
mitigate damages. See Nord v. United States Steel Corp., 758
F.2d 1462, 1471 (11th Cir. 1985). More importantly, the judge
found that the record as it developed throughout the proceeding
was sufficient to disprove the notion that Jackson was looking
for full-time work and would have quit school to take a full-time
position.[8]
In sum, we hold that, while the judge's initial statements
about the burden of proof were erroneous, sufficient evidence
under the applicable abuse of discretion standard supports his
determination that Jackson was not seeking a full-time position
for which he would have quit school if necessary. We therefore
conclude that the judge did not abuse his discretion in
determining that Jackson failed to mitigate his damages while
attending college, and affirm the judge's determination in
result.[9]
**FOOTNOTES**
[2]: The history of this proceeding is recounted in greater
detail in Sec'y of Labor on behalf of Jackson v. Mountain Top
Trucking Co., 21 FMSHRC 1207, 1208-11 (Nov. 1999) (Jackson II).
[3]: Section 105(c)(1) provides in part:
No person shall discharge or in any
manner discriminate against or cause to be
discharged or cause discrimination against or
otherwise interfere with the exercise of the
statutory rights of any miner . . . because
such miner . . . has filed or made a
complaint under or related to [the Act],
including a complaint notifying the operator
. . . of an alleged danger or safety or
health violation in a coal or other mine, . .
. or because of the exercise by such miner .
. . of any statutory right afforded by [the
Act].
30 U.S.C. � 815(c)(1).
[4]: "Because the Mine Act's provisions for remedying
discrimination are modeled largely upon the National Labor
Relations Act, [the Commission] ha[s] sought guidance from
settled cases implementing that Act in fashioning the contours
within which a judge may exercise his discretion in awarding back
pay." Metric Constructors, 6 FMSHRC at 231. The NLRB continues
to require an employer to show that the employee failed to
mitigate his damages. See, e.g., Atl. Limousine, Inc. v. NLRB,
243 F.3d 711, 721 (3rd Cir. 2001).
[5]: As the judge recognized (22 FMSHRC at 1400), the Fifth
Circuit has stated:
[w]e take notice that the vast majority of
full-time college students could not also
hold down a full-time job, and that in the
usual case when one decides to attend college
on a full-time basis, it does curtail his
present earning capacity and effectively
removes him from the employment market.
Brady, 753 F.2d at 1276. Nevertheless, the court went on to
examine whether the employer had shown that the discriminatee did
in fact fall within that "vast majority of college students," and
found that it had not. Id. at 1274, 1276.
[6]: We do not agree with the judge that, by only searching
for a job on the days he did not have classes, Jackson
unreasonably limited his job search. 22 FMSHRC at 1401. There
is no authority for the proposition that a discriminatee must
look for work each and every weekday to avoid being found to have
failed to mitigate his damages. All that is required is a
reasonable effort to find substitute employment. See, e.g.,
Metric Constructors, 6 FMSHRC at 231-33. Chairman Verheggen
finds notable the judge's inference that, because Jackson had
taken out a $4,100 student loan to attend 1995 fall semester
classes at Union College, he was unlikely to quit school without
finishing the semester. 22 FMSHRC at 1401.
[7]: Jackson designated his PDR as his opening brief.
[8]: Jackson argues that he only enrolled in college when
all his efforts to find work proved fruitless, and cites cases in
which discriminatees were found not have to failed to mitigate
damages by attending school because, with time, it had become
apparent that searching for alternative employment was futile.
PDR at 20-23. Jackson's reliance on this point is inconsistent
with his primary position before the Commission and the VEC, that
he was actively seeking full-time employment, and would have
accepted full-time work even if he had to quit school. Moreover,
in the cases Jackson cites, the discriminatees by and large had
given up on the idea of finding immediate full-time employment,
and were instead going to school in order to again become active
members of the workforce in the future. See Miller v. AT&T
Corp., 250 F.3d at 838-39; Dailey, 108 F.3d at 456-58; Brady, 753
F.2d at 1276; see also Smith v. Am. Serv. Co. of Atlanta, Inc.,
796 F.2d 1430, 1432 (11th Cir. 1986). Jackson's case is
otherwise - he was hired full-time at Cumberland before he even
started classes at Union College.
[9]: Mountain Top concludes its brief by requesting that
the Commission "reverse" the judge with respect to many of the
rulings he made throughout these proceedings, both in favor of
Jackson and in favor of the operators, going all the way back to
the judge's original 1997 decision on the merits of Jackson's
complaint. Op. Br. at 10. As we previously explained, because
we denied review of the operator's PDR, those rulings are final,
and the Commission lacks jurisdiction to review them.
Unpublished Order dated April 4, 2001, at 2.
III.
Conclusion
For the foregoing reasons, we affirm in result the judge's
backpay award.
Theodore F. Verheggen, Chairman
Mary Lu Jordan, Commissioner
James C. Riley, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
Stephen A. Sanders, Esq.
Appalachian Research & Defense Fund
Of Kentucky, Inc.
120 North Front Avenue
Prestonsburg, KY 41653
Edward M. Dooley, Esq.
512 Richmond Circle
Fairhope, AL 36532
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041