**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

721 19th Street, Suite443

Denver, CO 80202-2536

303-844-3577/FAX303-844-5268

 

 
| SECRETARY  OF LABOR, 

   MINE SAFETY AND HEALTH

   ADMINISTRATION (MSHA),

   on behalf of MOSES ORTIZ,

                               Applicant

 

                        v.

 

 

MARIO  SINACOLA & SONS 

   EXCAVATING, INC. AND ITS 

   SUCCESSORS,

                                Respondent                                                                                      |   |   | APPLICATION  FOR TEMPORARY

   REINSTATEMENT

 

Docket  No. CENT 2021-0184-DM

MSHA  Case No. SC-MD-2021-06

 

DISCRIMINATION  PROCEEDING

 

Docket  No. CENT 2022-0028-DM

MSHA  Case No. SC-MD-2021-06

 

Midlothian  Quarry and Plant

Mine  ID: 41-00071  |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER GRANTING THESECRETARY’S MOTION TO ENFORCE ORDER DIRECTING TEMPORARY REINSTATEMENT OF MOSESORTIZ &**

**ORDER DENYINGRESPONDENT’S MOTION FOR DISMISSAL AND SANCTIONS FOR PERJURY**

 

Before:  JudgeManning

 

            Thesematters are before me on an application for temporary reinstatement[1]and a complaint of discrimination filed by the Secretary of Labor (“Secretary”)on behalf of Moses Ortiz pursuant to section 105(c)(2) of the Federal MineSafety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2), against MarioSinacola & Sons Excavating, Inc. and its successors (“Sinacola”).

 

On May 5, 2022,the Secretary filed a Motion to Enforce Order Directing Temporary Reinstatementof Moses Ortiz (“Sec’y Mot.”) in which he argued that Sinacola had failed to complywith the TR Order.  On May 12, Respondent filed a response to the Secretary’smotion and its own Requests for Dismissal and Sanctions for Perjury (“Resp. Mot.”).Subsequently, on May 24, the Secretary filed a reply to Respondents Request forDismissal and Sanctions for Perjury.  (“Sec’y Reply”).[2]

 

**SUMMARY OF THEPARTIES’ ARGUMENTS**

 

            TheSecretary, in his motion, asserts that Respondent “failed to comply with the[TR Order] . . . to temporarily economically reinstate Moses Ortiz by failingto make payments for three (3) pay periods to date.”  Sec’y Mot. 1. Accordingly, the Secretary moves the court to enforce its own order and requireSinacola to “pay the amount owed for any missed payments and continue to makethe agreed payments to Mr. Ortiz until a final order is issued in the meritscase.” *Id*. at 2.

 

Respondent, in itsresponse and request, moves the court to dismiss the underlying discriminationcase and sanction Ortiz for material perjury and fraud on the Commission. Resp. Mot. 1.  According to Respondent, Ortiz confessed during a depositionthat his case is based on retaliation for prior criminal convictions and not onretaliation for safety complaints.  Further, Ortiz made his only safetycomplaint to MSHA after he was terminated[3]and he cannot name anyone at Sinacola who has been fired for reporting safetyconcerns.  Finally, Respondent argues that Ortiz failed to disclose threeserious felony convictions on his 2010 job application and that Respondentwould not have hired Ortiz had it known the truth.  Consequently, Respondent,citing the “after-acquired evidence” doctrine and the Supreme Court’s decisionin *McKennon v. Nashville Banner Publishing Company*, 513 U.S. 352 (1995),argues that Sinacola “cannot be forced to pay wages to an ex-employee who wouldnever have been hired in the first place had he told the truth, nor can Ortizbe economically reinstated as the Motion to Enforce asks.”[4] Resp. Mot. 3-4.  

 

The Secretary, inhis reply, argues that the “after-acquired evidence” doctrine is not applicableto the temporary reinstatement case.  While the doctrine “can limit damagesawarded and will generally render reinstatement and front pay inappropriate[,]”the Court in *McKennon* was addressing permanent reinstatement as a remedyafter a determination on the merits was made, not temporary reinstatement, asis at issue here.[5] Moreover, the Secretary, citing *McKennon*, asserts that even ifafter-acquired evidence can be considered, Respondent has failed to put forthsufficient evidence of wrongdoing of such severity that Ortiz in fact wouldhave been terminated on those grounds alone.  Sec’y Reply 3.  The Fifth CircuitCourt of Appeals has held that the pertinent inquiry is whether the employeewould have been fired upon discovery of the wrongdoing, not whether theindividual would have been hired in the first instance.  Here, the onlyevidence Respondent submitted is an affidavit from its Vice President of HumanResources that Sinacola would not have hired Ortiz.[6]

 

The Secretaryfurther asserts that Ortiz’s discrimination complaint was not frivolouslybrought and that Ortiz’s protected activity need not have occurred in the formof a complaint to MSHA.  According to the Secretary, Ortiz made numerous safetycomplaints to Respondent and, immediately before being terminated, told amember of mine management that “he could have contacted MSHA regarding hisconcerns ‘a long time ago.’”  Sec’y Reply. 5. The Commission has longrecognized that making a complaint to management and asserting that one mayexercise their right to contact MSHA are both protected activities under theMine Act.[7] Based on the MSHA investigator’s findings regarding protected activity, thefact that termination was an adverse action under the Act and, given that someof these events occurred within a single conversation, there clearly was anexus.  When the Secretary finds that a miner’s discrimination complaint is notfrivolously brought, the Mine Act requires the Commission to order theimmediate reinstatement of the miner pending final order on the complaint.  

 

Additionally, theSecretary argues Respondent continues to harass and retaliate against Ortiz.  Theafter-acquired evidence doctrine is well established.  Respondent failed tomeet its burden under the doctrine but nevertheless attempted to bring theconvictions before the court to prejudice Ortiz.  Sec’y Reply.  7.  Further, Respondent“habitually refused to comply with the

. . . [TR Order],having missed payments on at least 10 occasions since the Order was entered.” Sec’y Reply 7.  Furthermore, despite alleging that Ortiz perpetrated a fraud onthe court and perjured himself, Respondent presented no evidence of the type ofegregious conduct necessary to establish fraud and failed to present evidenceof any testimony under oath that Ortiz contradicted during his deposition. Sec’y Reply 8.

 

Given the abovearguments, the Secretary avers there is no evidence the temporary reinstatementclaim was frivolously brought.  Accordingly, the Secretary asks the court to enforcethe temporary economic reinstatement order of August 24, 2021, and require Respondent,in an expedited manner, to pay the amount owed for any missed payments and continuemaking those payments until a final order is issued in the merits case. Finally, the Secretary asks that Respondent’s response and request be strickenfrom the record given that it fails to come close to meeting the burden ofproving perjury or fraud on the court, and only serves to further harass and retaliateagainst Ortiz.  

 

**DISCUSSION ANDANALYSIS**

 

Both the temporaryreinstatement proceeding, and the discrimination proceeding are captioned inthis order.  It is critical that the parties recognize the difference betweenthese two proceedings. While the scope of the discrimination proceeding isbroad and addresses the merits of the complaint of discrimination, the scope ofthe temporary reinstatement proceeding was, and is, narrow and limited to adetermination whether the discrimination complaint was frivolously brought.  *See**Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc.*, 9 FMSHRC1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738 (11th Cir. 1990) (“*JWR*”).  Moreover,unlike in a discrimination proceeding on the merits, in a temporaryreinstatement proceeding a judge “may not resolve credibility disputes or makerulings on credibility.” *Sec’y of Labor on behalf of Saldivar v. GrimesRock, Inc.*, 43 FMSHRC 299, 301 (June 2021) (“*Saldivar*”).

 

Although a hearingwas not held on the application for temporary reinstatement,[8]the record supports that Ortiz’s complaint was not frivolously brought.  Theapplication for temporary reinstatement, the special investigator’s sworndeclaration, and the Secretary’s discrimination complaint allege that inFebruary and April of 2021 Ortiz made safety complaints and asserted to minemanagement his right to contact MSHA with safety concerns.[9] Notably, each of those filings allege Ortiz was terminated immediately afterasserting his right to contact MSHA to mine management.[10] The Commission has held that termination eight days after an operator gainsknowledge of a protected activity can establish a motivational nexus forpurposes of determining whether a complaint of discrimination is frivolouslybrought.  *A&K Earth Movers, Inc.*, 22 FMSHRC 323, 325-326 (Mar.2000).  Here, there is evidence that possibly only seconds or minutes elapsedbetween the time Ortiz asserted his right to contact MSHA and his termination.  Giventhe temporal proximity of the alleged protected activity and adverse action, anexus appears to exist that supports a determination that the complaint was notfrivolous.[11]

 

 

 

I findRespondent’s argument regarding after-acquired evidence unavailing and

inapplicable inthe context of temporary reinstatement proceedings.  Both parties cite theSupreme Court’s decision in *McKennon v. Nashville Banner Publishing Company*,513 U.S. 352 (1995).  In *McKennon*, unlike here, the Court was addressingthe impact of the after-acquired evidence doctrine on remedies available aftera determination on the merits of a discrimination complaint.  There the Courtfound that although certain remedies, such as full reinstatement and front pay,may not be available to a discriminatee based on after-acquired evidence ofwrongdoing by the individual, such evidence is not a complete bar to recovery.  Here,there has been no hearing on the merits of the discrimination complaint andthis court has issued only an order of *temporary* economic reinstatementbased upon the parties’ jointly submitted Settlement Agreement.  Given theunique, limited nature of temporary reinstatement proceedings, the Mine Act’sdirection that miners be immediately reinstated pending final order on the complaint,30 U.S.C. § 815(c)(2), and the parties’ joint agreement to economicallyreinstate Ortiz pending final order on the complaint, I agree that any after-acquiredevidence of wrongdoing “is irrelevant and inadmissible at this temporaryreinstatement stage.”  *Sec’y of Labor v. Small Mine Dev*., 2020 WL8180380, at *2.[12] Sinacola has presented insufficient evidence or legal argument to meritoverturning the August 24, 2021, Decision Approving Settlement Agreement andOrder of Temporary Economic Reinstatement.

 

With regard toRespondent’s motion to dismiss the discrimination proceeding, I find itsarguments unavailing.  Respondent’s motion would require the court toprematurely weigh evidence and make credibility findings.  The parties arecurrently engaged in discovery and preparing for hearing.  This order is notthe appropriate time or place for the court to weigh evidence on whether Sinacoladiscriminated against Ortiz.  Rather, during and after the August 2 hearing,the court will weigh the evidence, make findings of fact and determine whetherOrtiz was discriminated against and, if so, what the appropriate remedy may be.

 

As stated above,Respondent maintains that Ortiz was discharged when it learned that he hadpreviously been convicted of serious felonies and that Ortiz agreed with this conclusionduring his April 8, 2022, deposition.  I note that there appears to be aserious dispute of material fact between the parties regarding when Respondentbecame aware of Ortiz’s criminal record.  Although Respondent asserts it wouldnot have hired Ortiz had it known of his criminal record, it is unclear whenRespondent became aware of that record.  The Secretary asserts Respondent hadprior knowledge of the criminal record, yet Ortiz was not terminated when managementfirst became aware of the convictions.  This dispute of material fact is anissue that must be addressed at the hearing on the merits.  If Respondent hadprior knowledge of the criminal record but failed to act on that knowledge, onecould argue that a later termination allegedly based on that knowledge ispretextual.  *See JWR*, 12 FMSHRC 1521, 1534 (Aug. 1990) (“pretext may befound ... where the asserted justification is weak, implausible, or out of linewith the operator's normal business practices.”); *see also**Reeves v.Sanderson Plumbing Prod., Inc.*, 530 U.S. 133, 148 (2000) (“a plaintiff'sprima facie case combined with sufficient evidence to find that the employer'sasserted justification is false, may permit the trier of fact to conclude thatthe employer unlawfully discriminated.”)

 

Finally, I find thatRespondent’s arguments regarding perjury and fraud on the court lack merit.  Iagree with the Secretary’s analysis and find that Respondent has failed topoint to anything which could meet the high burden of proving a fraud on thecourt, i.e., an “unconscionable plan or scheme which is designed to improperlyinfluence the court in its decision.” *First Nat’l Bank of Louisville*, 96F.3d 1554, 1573 (5th Cir. 1996).  Further, although Respondent may take issuewith Ortiz’s failure to disclose these convictions on his application foremployment, Ortiz appears to have been candid about the existence of hiscriminal record when asked about it, under oath, at his deposition.  Inaddition, Ortiz claims that Respondent knew of at least one of his convictionsfor about six years prior to his termination.  Based on the record developed inthese cases to date, I find that it has not been established that Ortizperpetrated fraud on the court.  

 

**ORDER**

 

The Secretary’s Motion to Enforce OrderDirecting Temporary Reinstatement of Moses Ortiz is **GRANTED**.  Respondentis **ORDERED** comply with all terms of parties’ settlement agreement in thetemporary reinstatement case that was approved by this court by order datedAugust 24, 2021.  Specifically, Respondent is **ORDERED** to pay Ortiz themoney owed for payments under the agreement that were missed as set forth bythe Secretary.  Such payment shall be made as quickly as possible, but by nolater than June 24, 2022.  Further, Respondent is **ORDERED** to continuemaking payments under the terms of the settlement agreement as ordered by thiscourt until such time that a final order is issued in the discrimination caseon the merits.  Respondent’s Requests for Dismissal and Sanctions for Perjuryis **DENIED**.[13]

 

 

 

 

/s/Richard W. Manning

                                                RichardW. Manning

                                                AdministrativeLaw Judge

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*** ***

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Distribution( First Class Mail & email):

 

Lacee Caitlyn Eakins, U.S. Departmentof Labor, Office of the Solicitor, 525 Griffin Street, Suite 501, Dallas, TX75202 (eakins.lacee.c@dol.gov)

Harold Jones, Polsinelli, PC, 2950 N.Harwood Street, Suite 2100, Dallas, Texas 75201 (hdjones@polsinelli.com) 

----

[1] On August 24,2021, this court issued a Decision Approving Settlement Agreement and Order ofTemporary Economic Reinstatement (“TR Order”).  In lieu of physicallyreinstating Ortiz to his former position at Sinacola, the TR Order made clearthe parties jointly agreed Ortiz would be temporarily economically reinstated. Under the terms of the Settlement Agreement submitted by the parties andapproved by the court, Respondent agreed to pay the difference between Ortiz’sprevious rate of pay at Sinacola and the lesser amount he was earning in a newjob held at the time the parties filed the settlement agreement.  The TR Orderincorporated other terms of the economic reinstatement, as well as rights andresponsibilities of the parties, and ordered the parties to comply with such.  Notably,the Settlement Agreement explicitly stated it was to “remain in effect until a‘final order’ of the Commission is entered regarding Ortiz’s underlyingdiscrimination complaint.”  Because the TR Order was not a final disposition ofthe application for temporary reinstatement, I retained jurisdiction over thecase.  29 C.F.R. § 2700.45(e)(4).  

 

[2] The Secretary’smotion was filed in the temporary reinstatement docket, i.e., CENT2021-0184-DM.  Respondent filed its response to the Secretary’s motion in the underlyingdiscrimination docket, i.e., CENT 2022-0028-DM. Because Respondent alsorequests that the discrimination case be dismissed and sanctions be imposed, Iaccepted the filing in both the temporary reinstatement docket and thediscrimination docket.  Accordingly, both the temporary reinstatement case anddiscrimination case are captioned on this order.  

 

[3] Respondent’sresponse focuses on two alleged safety complaints.  First, a safety complaintmade to MSHA regarding a supervisor allegedly not wearing a seatbelt.  Second,a safety complaint made to someone not with MSHA regarding a hernia.

 

[4] Respondent alsoargues Ortiz perjured himself during his deposition when he mischaracterizedhis felony convictions as minor misunderstandings. 

[5] The Secretarycites the decision of my colleague, Judge Simonton, for the proposition thatafter-acquired evidence is irrelevant and inadmissible in a temporaryreinstatement proceeding. *Sec’y v. Small Mine Dev.*, 2020 WL 8180380, at*2 (December 18, 2020).

 

[6] The Secretaryasserts it is clear Respondent would not have terminated Ortiz based on theconvictions or any information omitted from Ortiz’s employment application becauseRespondent had prior knowledge of that information but did not terminate Ortizuntil after he lodged a safety complaint and stated he could contact MSHA.  

 

[7] The Secretaryacknowledges that the friction between Ortiz and his supervisor likely beganwhen the supervisor became aware of Ortiz’s criminal record in 2014 or 2015. However, the Secretary asserts that this history does not form the basis of thesuit.

[8] Rather than go tohearing on the application for temporary reinstatement, the parties jointlyentered into a settlement agreement in which Ortiz, in lieu of actualreinstatement, was “economically reinstated.”  The Commission addressedeconomic reinstatement agreements in *Sec’y of Labor on behalf of Gray v.North Fork Coal Corp*. 33 FMSHRC 589 (Mar. 2011) (“Gray”), and stated asfollows:

 

[The operator]confuses the legal principles that apply to back pay awards if and when theminer succeeds in his discrimination complaint on the merits, with the legalprinciples governing the wholly separate temporary reinstatement proceeding.

. . . 

[T]he purpose oftemporary reinstatement is to put the miner back to work as soon as possible sothat he or she can resume earning a living while the discrimination case isheard. . . . The temporary reinstatement provisions contemplate that the minerwill provide the operator labor in return for wages and benefits. The issue ofback pay usually does not arise since the miner is not compensated for theearlier period of time between termination and the judge's order temporarilyreinstating him or her. . . .  Conversely, if the operator chooses to pay theminer while foregoing the miner's labor, there is no right for the operator toseek reimbursement from the miner should the miner not eventually prevail onhis or her discrimination claim.

 

Consequently, wereject the notion that the considerations which shape back pay award amounts,also apply, as a matter of law, to the economic reinstatement order before us.Unlike back pay awards, Commission judges do not decide the terms of economicreinstatement agreements. The agreement which formed the basis of the judge'sorder was arrived at after negotiations between the parties. Moreover, we arecognizant of the fact that it was North Fork's decision to offer economicreinstatement in lieu of actual reinstatement that gave rise to the retroactivepay relief that North Fork now seeks to challenge.

 

*Gray* at 592-593.(Internal citations omitted). 

 

[9] While Respondentdoes not explicitly argue that only complaints to MSHA can serve asprotected activity, the Secretary’s reply directly addresses that argument andcorrectly states that protected activity can include, among other things,complaints to mine management and assertions by a miner that they may exercisetheir right to contact MSHA.  *See e.g., Saldivar* 43 FMSHRC 299, 307(Safety complaints made to the operator are protected activity), *Sec’y ofLabor on behalf of Coffee v. Txoma Mining, LLC*, 40 FMSHRC 615, 625 (Mar.2018) (ALJ).

 

[10] The Secretarycorrectly points out that Ortiz, as a lay person, need only have a “merebelief” that he has been discriminated against, and need not know whatspecifically constitutes protected activity in order to trigger the Secretary’sinvestigation into the complaint in order to fully develop the possible claimof discrimination. Sec’y Reply 6 (*quoting Hopkins County Coal, LLC*, 38FMSHRC 1317 (June 2016).  Here, the Secretary’s investigation revealed at leasttwo instances of potential protected activity by Ortiz, i.e., reporting theseatbelt issue to mine management and informing management that he couldcontact MSHA with his concerns.  

 

[11]The “notfrivolously brought” standard reflects a Congressional intent that “employersshould bear a proportionately greater burden of the risk of an erroneousdecision in a temporary reinstatement proceeding.” *JWR*, 920 F.2d at 748,n.11.  

 

[12]AlthoughRespondent’s argument involving the after-acquired evidence doctrine fails inthe context of the temporary reinstatement proceeding, Respondent is free toreassert that argument and present evidence at the hearing on the merits afterthe Secretary has been given an opportunity to establish a prima facie case.  Inote that the Fifth Circuit has held that “the pertinent inquiry . . . iswhether the employee would have been fired upon discovery of the wrongdoing,not whether he would have been hired in the first instance.” *Shattuck v.Kinetic Concepts, Inc.*, 49 F.3d 1106, 1108 (5th Cir. 1995).

 

[13] The Secretary, inhis reply, requested that Respondent’s response be stricken from the record.  TheSecretary, in making this request, appears concerned that Ortiz will beprejudiced if the convictions are before the court. Given that I sit as thefinder of fact in this matter, the risk of prejudice due to the existence ofthe convictions in the record is minimal at most.  Accordingly, I decline tostrike the Respondent’s response from the record.