The Tenth Circuit issued its opinion in Cordero Mining LLC v. Secretary of Labor on Thursday, November 15, 2012.
Cindy Clapp was a long time employee at a coal mine operated by Cordero Mining. She was terminated after making several complaints about safety issues. The Secretary of Labor filed a complaint of discrimination on her behalf, alleging Cordero violated § 105(c) of the Federal Mine Safety and Health Act of 1977 (the Act). An ALJ found Cordero had violated the Act and ordered Clapp be reinstated with back pay and imposed a civil penalty of $40,000. As the Federal Mine Safety and Health Review Commission denied review, Cordero petitioned for review of the final decision.
The Tenth Circuit held the ALJ’s findings were supported by substantial evidence. Clapp had established a prima facie case of discrimination by 1) showing she engaged in the protected activity of raising safety concerns and 2) that she was terminated for that activity, not for insubordination. The ALJ’s credibility determinations deserved great weight.
The court also rejected Cordero’s challenge to the back pay award as Cordero failed to meet its burden of establishing Clapp “did not exercise reasonable diligence” in finding new employment and thereby mitigating her damages. Finally, the court found substantial evidence supported the ALJ’s civil penalty, including the chilling effect Clapp’s termination would have on other miners.