Miner’s Discrimination Claim Upheld by 10th Circuit

The U.S. Circuit Court of Appeals for the 10th Circuit has upheld a Review Commission ALJ decision that doubled an MSHA penalty against a mining company in a discrimination case.

Cordero Mining was find $40,000 after an ALJ found that Cindy Clapp was fired after voicing numerous safety concerns. The company fired her on March 18, 2010 “due to [her] insubordination towards leadership and for other legitimate business reasons,” but she was able to document her many safety-related complaints.

Cordero also challenged the ALJ’s decision to award full back-pay to Clapp, claiming that the ALJ ignored substantial evidence that Clapp failed to mitigate her damages in that she applied for only one job after being terminated, but the court disagreed.

The court also agreed that the ALJ has a right to double MSHA’s proposed penalty. Cordero was a large mining company; Cordero’s managers were negligent; discharging Ms. Clapp was a grave violation that had a “chilling effect” on other miners; and, that Cordero did not act in good faith.

Clapp must be awarded full back pay, and the $40,000 fine against the company was upheld.

CORDERO MINING LLC, Petitioner, v. SECRETARY OF LABOR on behalf of CINDY L. CLAPP; FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondent.

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT; No. 12-9502, November 15, 2012