Secretary of Labor on behalf of Brek Pinkerton v. RMC Mining Development, LLC, et al.

Plain-English summary

The Secretary brought a Mine Act discrimination case for miner Brek Pinkerton against RMC Mining Development, American Mining Properties, Russ Myers, and Matthew Head. The respondents repeatedly failed to answer, participate in discovery, attend depositions, respond to show-cause orders, or oppose the default motion. The Judge entered default, deemed the amended complaint's allegations true, and found a violation of section 105(c). He ordered $129,597.68 to Pinkerton for back pay, interest, mileage-related losses, and emotional distress, plus a $30,000 civil penalty to the Secretary. The order also required record expungement, neutral references, miner-rights training, safety-rights notices, and other anti-retaliation measures.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(2)
• Outcome: Default judgment was entered, $129,597.68 was awarded to Pinkerton, and a $30,000 civil penalty and nonmonetary remedies were ordered.
• Key point: Repeated refusal to participate after notice supported default and the full remedial relief ordered for Mine Act discrimination.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of the Chief Administrative Law Judge

721 19th Street, Suite 443

Denver, CO 80202-2500

Telephone: 303-844-5267

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA), : Docket No. WEST 2024-0114

on behalf of BREK PINKERTON, : MSHA No. RM-MD-2024-01

Complainant, :

:

v. :

:

RMC MINING DEVELOPMENT, LLC, a :

corporation, RUSS MYERS, an :

individual, AMERICAN MINING :

PROPERTIES, LLC, a corporation, and :

MATTHEW WAYN HEAD, an individual, :

Respondents. : Mine: Harquahala Mine

DEFAULT
DECISION

__&
ORDER ON RELIEF __

This case is before me
upon a complaint of discrimination filed by the Secretary of Labor (the
“Secretary”) on behalf Brek Pinkerton against RMC Mining Development, LLC
(“RMC”), American Mining Properties, LLC (“AMP”), Russ Myers, and Matthew Wayn
Head (collectively, the “Respondents”)[1],
pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c)(2). On April 25, 2025, the Secretary filed a Motion
for Default Judgement (the “Motion”). For reasons set forth below, the
Secretary’s Motion is GRANTED and the Respondents are ORDERED to comply
with the terms of relief discussed herein.

The Secretary, in her Motion, asserts that the Respondents, despite contesting the alleged 105(c) violation, have refused to participate in this litigation. Specifically, the Secretary avers that Respondent RMC has not responded to discovery propounded in July 2024 and has twice failed to appear for deposition testimony for which subpoenas were issued by this court. Further, the remaining Respondents, i.e., AMP, Myers and Head, have refused to file an Answer to the Secretary’s Second Amended Discrimination Complaint or respond to this court’s March 20, 2025, Order to Show Cause for failing to timely file an Answer. Accordingly, the Secretary moves the court to enter an order of default judgement requiring the Respondents to pay back pay plus interest, consequential damages, compensatory damages, and a civil monetary penalty. Further, the Motion moves the court to order other non-monetary relief. The Respondents did not file an opposition to the Secretary’s Motion.

This case presents the
court with an unusual situation where the Respondents have failed to meaningfully
participate in the litigation[2]
despite being given several opportunities to do so. Although the Respondents’
failures are many, for the purposes of this order I focus on their failures to
respond to two orders to show cause.

On August 21, 2024, prior to the addition of AMP, Myers and Head as respondents, I issued an order in which I stated my expectation that RMC would respond directly and promptly to any communications initiated by the Secretary. RMC failed to do so. Moreover, RMC repeatedly failed to respond to communications from the court. Consequently, on October 2, 2024, I issued an Order to Show Cause requiring RMC to demonstrate why sanctions up to and including a default order should not be entered. RMC did not respond to the Order to Show Cause.

Subsequently, after AMP, Myers and Head were added to this matter, the Respondents failed to file an Answer to the Secretary’s Second Amended Discrimination Complaint. As a result, on March 6, 2025, I issued an Order to Show Cause requiring the Respondents to provide an explanation for their failure to file an Answer and informing them that not doing so may result in sanctions up to and including default judgement. The Respondents again failed to respond to the Order to Show Cause.

The Commission’s
procedural rules state that “[w]hen a party fails to comply with an order of an
ALJ or these rules . . . an order to show cause shall be directed to the party
before the entry of any order of default[.]” 29 C.F.R. § 2700.66. The
Commission has “observed that default is a harsh remedy and that, if the
defaulting party can make a showing of adequate or good cause for the failure
to respond, the failure may be excused and appropriate proceedings on the
merits permitted.” Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept.
1995)

Here, the Respondents failed
to comply with court orders, did not respond to multiple orders to show cause,
and did not respond to the Secretary’s Motion for Default Judgement.
Accordingly, I find that RMC, AMP, Myers and Head are in DEFAULT and the
allegations included in the Secretary’s Second Amended Discrimination Complaint
filed with the court on November 26, 2024, are deemed to be true and are incorporated
as findings of fact in this decision.[3]
As a result, I find that the Respondents violated Section 105(c) as alleged. I
now turn my attention to the question of relief.

Section 105(c)(2) of the Act sets forth the relief available to victims of discrimination as follows:

The Commission shall have authority . . . to require a person committing a violation of this subsection to take such affirmative action to abate the violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay and interest.

30 U.S.C. § 815(c)(2). The Secretary seeks several forms of relief in this matter. I address each below.

Back Pay

The Mine Act explicitly
contemplates an award of back pay and interest when a violation of Section
105(c) occurs. 30 U.S.C. § 815(c)(2). Here, the Secretary asserts that
Pinkerton is owed $5,168.00 in back pay and interest for the period between
September 25, 2023 and October 13, 2023 when miners were withdrawn under a
104(g) order, $4,579.20[4] in back pay
and interest for the period after he was terminated until he started his new
job, and $31,353.48 in back pay and interest for the difference in wages earned
at his new job and what he would have earned at RMC had he not been unlawfully
terminated. Sec’y Mot. 5-6, 9-11. The Secretary provided the declaration of Lee
Hughes, an MSHA Special Investigator, as support for how the amounts were calculated.
Hughes Decl. ¶¶ 3 and 5, Exs. A and C. [I incorporate
Hughes’s calculations in this decision. The Respondents, having been found in
default and not opposing the Secretary’s Motion, are ORDERED to pay Pinkerton
a total of $41,100.68 in back pay and interest.]

Consequential Damages

The Commission and its
judges have awarded relief in the form of consequential damages for losses
stemming from unlawful discrimination. E.g., Amos Hicks v. Cobra Mining,
14 FMSHRC 50 (Jan. 1992) and Sec'y of Labor on behalf of Groves v. Con-ag,
Inc., 39 FMSHRC 1811 (Sept. 2017) (ALJ). The Secretary seeks damages for costs
associated with mileage Pinkerton would not have incurred but for his unlawful
termination. Sec’y Mot. 5, 12. Special Investigator Hughes’s declaration
explains how the Secretary calculated a consequential damages award of $13,497.00.
Hughes Decl. ¶ 4, Ex. B. I incorporate Hughes’s calculations in this decision. The
Respondents, having been found in default and not opposing the Secretary’s
Motion, are ORDERED to pay Pinkerton a total of $13,497.00 in consequential
damages stemming from mileage that otherwise would not have been incurred but
for the unlawful discrimination.

Compensatory Damages

The Secretary asserts that, although “the Commission has never specifically decided whether emotional distress damages may be awarded[,]” the Act’s language empowers the agency to award such. Sec’y Mot. 12-13.

The Secretary is
correct that the Commission has never directly addressed the issue of
compensatory damages.[6]
However, and as noted by the Secretary, Commission judges have approved
settlement agreements in which the parties agreed to compensatory damages,[7] and at least
one judge has acknowledged the potential for damages “for ‘pain and suffering
and inconvenience.’” See Justice v. Rockwell Mining, LLC, 40
FMSHRC 1582 (Dec. 2018) (ALJ) (noting the Commission’s broad remedial authority
to craft relief “suitable to the facts of each [105(c)] case[,]” and not ruling
out the “possibility of another appropriate remedy[.]”).

Although compensatory
damages are not explicitly mentioned in the Act, Section 105(c)(2), under which
this proceeding was brought, grants the court authority “to take such
affirmative action to abate the violation as the Commission deems
appropriate, including, but not limited to, the rehiring or reinstatement
of the miner to his former position with back pay and interest.” 30 U.S.C. §
815(c)(2) (emphasis added).[8]
This “broad remedial charge” grants Commission judges “‘considerable discretion
in fashioning remedies appropriate to varied and diverse circumstances.’” Sec’y
of Labor on behalf of Rieke v. Akzo Nobel Salt, Inc., 19 FMSHRC 1254,
1257-1258 (July 1997) (quoting Sec’y of Labor on behalf of Dunmire v.
Northern Coal Co., 4 FMSHRC 126, 142 (Feb. 1982). Indeed, the Commission
has stated that, unless there are compelling reasons to not do so, “‘the full
measure of relief should be granted’” to victims of discrimination. Sec’y of
Labor on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2056
(Dec. 1983) (quoting Sec’y of Labor on behalf of Gooslin v. Kentucky Carbon
Corp., 4 FMSHRC 1, 2 (Jan. 1982)).

Given the broad
language of Section 105(c)(2), the Commission’s recognition of its judges’ considerable
discretion to fashion appropriate relief, and the Respondents’ failure to
participate in this litigation or in any way object to the Secretary’s
requested relief, I find that compensatory damages are appropriate. Here, the
Secretary seeks $75,000.00 in emotional distress damages stemming from severe
trauma Pinkerton suffered due to the “nature of the discrimination.” Sec’y Mot.

13. The Respondents, having been found in default and not opposing the
    Secretary’s Motion, are ORDERED to pay Pinkerton a total of $75,000.00
    in compensatory damages due to emotional distress he suffered as a result of
    the discrimination.

Non-Monetary Relief

The Secretary moves for several forms of non-monetary relief. Sec’y Mot. 14-16. Given that the Respondents have been found in default and have not opposed the Secretary’s Motion, I enter the following orders:

·
The Respondents
are ORDERED to immediately expunge Pinkerton’s employment record of all
references to the circumstances involved in this matter, including that he was
terminated.

·
The Respondents
are ORDERED to immediately provide a neutral job reference to
Pinkerton’s potential employers, if requested, stating his job title, job
responsibilities, period of employment, and salary.

·
It is ORDERED
that, within 30 calendar days of commencing any business subject to the MSH Act
or employing any employee subject to the MSH Act, the Respondents and their
officers, managers, supervisors, human resources staff, and forepersons are to
receive comprehensive Miners’ Rights and Responsibilities training under the
Federal Mine Safety and Health Act of 1977, and provide this training to all
miners on an annual basis.

·
It is ORDERED
that, immediately upon commencing any business subject to the MSH Act or
employing any employee subject to the MSH Act, the Respondents must announce at
any safety meeting that any Respondent holds that all of its employees can
raise any safety issue with MSHA by calling 1-800-746-1553 in addition to the
company’s normal reporting procedures

·
It is ORDERED
that, immediately upon commencing any business subject to the MSH Act or
employing any employee subject to the MSH Act, the Respondents must include in
any employee handbook, safety manual, and/or orientation material the following
statement, which must be provided to all employees, including management
officials and executive leadership:

You have a right to:

1. File or make a complaint of an alleged danger or safety or health violation to a Federal or State agency, a mine operator, an operator's agent or a miner's representative.

2. Participate in proceedings under the Act such as: testifying, assisting, or participating in any proceeding instituted under the Act, or filing a complaint with the Federal Mine Safety and Health Review Commission.

3. Refuse to work if you have not been provided with the required health and safety training, including all relevant site-specific training.

4. Object and refuse to work if you have a good faith, reasonable belief that a specific working condition is unsafe.

5. This includes a supervisor’s instruction to engage in or work under conditions that you have a good faith, reasonable belief to be unsafe. NOTE: You must notify the operator of the condition and give them an opportunity to address the situation.

6. Exercise any statutory rights afforded by the Act.

·
It is ORDERED
that, immediately upon commencing any business subject to the MSH Act or
employing any employee subject to the MSH Act, the Respondents must publish on
any website or other public-facing recruitment and onboarding materials created
language that encourages miners to raise safety concerns within the company to
MSHA without fear of retaliation.

• *

Civil Penalty

The Secretary seeks a
$30,000.00 civil penalty from the Respondents. 29 C.F.R. § 2700.44. Special
Investigator Hughes’s declaration states that the penalty amount was arrived at
“using criteria required by regulation and based on additional information”
possessed by MSHA’s office of Assessment. Hughes Decl. ¶ 6. The Respondents,
having been found in default and not opposing the Secretary’s Motion, are ORDERED
to pay the Secretary a civil penalty of $30,000.00.

ORDER

For the reasons set
forth above, I find that the Respondents are in DEFAULT. The Secretary’s
Motion for Default Judgement is GRANTED. The Respondents are ORDERED
to pay Brek Pinkerton a sum of $129,597.68[9]
for back pay and interest, consequential damages and compensatory damages. Further,
the Respondents are ORDERED to comply with the non-monetary relief items
discussed above. Finally, the Respondents are ORDERED to pay the
Secretary a civil penalty of $30,000.00. The Respondents are ORDERED to
make the payments to Pinkerton and the Secretary within 30 days of the date of
this decision.

/s/
David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution (Electronic and
Certified Mail)

Nisha Parekh, U.S. Department of Labor, Office of the Solicitor, 312 N. Spring Street Room

720, Los Angeles, CA 90012, Email; ([email protected])

Ida Abhari, U.S. Department of Labor, Office of the Solicitor, 312 N. Spring Street Room 720,

Los Angeles, CA 90012, Email; ([email protected])

Russ Meyers, RMC Mining Development, LLC, PO Box (STE) 1-790, New River, AZ 85087,

Email; ([email protected])

American Mining Properties, LLC 2900 W. Horizon Ridge Parkway, Ste 200, Henderson, NV

89052

Matthew Wayn Head, 17800 Sutton Drive, Houston, MO 65483,

Email; ([email protected])

Randy Pinkerton, Email; ([email protected])

[1]
RMC was originally the only respondent in this matter. On November 21, 2024, I
granted the Secretary’s Motion to Amend the Complaint to add AMP, Myers and
Head as respondents.

[2]
Among other things, in addition to the various failures discussed herein, Respondent
RMC was late to file the original answer in this matter, and late in filing its
response to an order to show cause issued on March 26, 2024. Moreover, Respondent
Myers failed to appear at a scheduled deposition and failed to appear on a
conference call ordered by the court.

[3]
The first set of numbered paragraphs of the Secretary’s Second Amended Discrimination
Complaint, i.e., paragraphs 1 through 12, address, among other things, the
Commission’s jurisdiction over this matter, the authority upon which the action
was brought, the relationship of the Respondents to this matter, the protected
activity Pinkerton engaged in, and the adverse action Pinkerton would not have suffered
but for his protected activities.

[4]
The amount in the Secretary’s Motion differs from the amount calculated by
Hughes and included in Exhibit A of his declaration. I rely on the amount
calculated by Hughes and included in his declaration.

[5]
The amount of back pay and interest sought by the Secretary in her Motion
differs from the amount calculated by Hughes and included in his declaration. In
arriving at the total amount ordered here, I rely on the amounts calculated by
Hughes and included in Exhibits A and C of his declaration.

[6]
Multiple Commission judges, citing a lack of authority, have declined to award
compensatory damages for emotional distress/pain and suffering in
discrimination cases. E.g., Casebolt v. Falcon Coal Co., 6 FMSHRC
485 (Feb. 1984) (ALJ) (“[A]ll I can say is that life is unfair but that I find
no warrant in the statute or precedent for an award of damages for pain and
suffering.”); Bewak v. Alaska Mechanical, Inc., 33 FMSHRC 2337 (Sept.
2011) (ALJ) (“There is no authority or precedent for awarding compensatory damages
for damage to reputation and/or pain and suffering.”); Varady v. Veris Gold
USA, Inc., 37 FMSHRC 2037 (Sept. 2015) (ALJ) and Lowe v. Veris Gold USA,
Inc., 37 FMSHRC 2337 (Oct. 2015) (ALJ) in both of which the ALJ stated that
“[s]ome damages are not recognized for relief under the Mine Act. For example,
there is no authority or precedent for awarding compensatory damages for damage
to reputation and/or pain and suffering”; See Sec’y of Labor on behalf of
Pepin v. Empire Iron Mining Partnership, 38 FMSHRC 1435 (June 2016) (ALJ)
(stating that “[t]he court expresses no opinion as to whether emotional
distress damages may ever be awarded under the Act, absent any concrete injury
or financial loss[,]” while at the same time finding that the facts of the case
where not of “the sort of exceptional circumstances that might merit such an
award.”). However, I am not bound by the decisions of other Commission ALJs.

[7]
E.g., Sec’y of Labor on behalf of Young v. F&E Erection Co., 16
FMSHRC 2122 (Oct. 1994) (ALJ) (Granting a motion to approve settlement and
directing payment of damages for “pain and suffering and emotional distress.”);
Sec’y of Labor on behalf of Delong v. Bruce Young d/b/a BNA Trucking and
Yogo, Inc., 18 FMSHRC 31 (Jan. 1996) (ALJ); Sec’y of Labor on behalf of
Howard v. Bruce Young and Yogo, Inc., 18 FMSHRC 1054 (June 1996) (ALJ).

[8]
The Secretary argues that federal district courts regularly award compensatory
damages under the Occupational Safety and Health Act, 29 U.S.C. § 660(c), which
contains language similar to that of the Mine Act’s anti-retaliation
provisions. Sec’y Mot. 12-13.

[9]
$41,100.68 (back pay and interest) + $13,497.00 (consequential damages) +
$75.000.00 (compensatory damages) = $129,597.68