Decision in miner discrimination case upheld by federal appeals court

A woman who complained about safety practices at Cordero Rojo mine and was subsequently fired has won the next round of court battles in her case against the mine.

The U.S. Court of Appeals for the 10th Circuit rejected attempts by Cloud Peak Energy to overturn a ruling by an administrative law judge to reinstate the woman that it says was wrongfully terminated. The decision comes a year after the initial ruling and almost three years after she was fired.

The initial decision from the commission ordered the company to reinstate Cindy L. Clapp, a shovel operator with 28 years of experience. MSHA officials say Clapp was wrongfully fired after she filed complaints with the agency about the mine’s safety practices.

MSHA says Clapp was fired in retaliation for her speaking out about safety at the Cordero Rojo mine.

According to court documents, Clapp’s complaints to MSHA came only after she made significant effort to confront the issues with her managers and even the mine’s manager.

The ruling in December 2011 ordered the mine to reinstate Clapp with full pay, ordered it to pay her back pay for the time after she was fired and fined the company $40,000.

“This decision represents a resounding victory for miners and their right to identify hazardous conditions that imperil themselves and their fellow miners without fear of reprisal,” said Joseph A. Main, assistant secretary of labor for mine safety and health.

Clapp’s appeals to mine managers about her safety concerns began in early 2009. She was a level 6 shovel operator at the mine, the most senior rank for that position, according to court documents.

She lodged complaints about several safety concerns, including the overloading of trucks and the placement of new GPS screens in her shovel that she said blocked her view.

The mine explained that Clapp was fired on March 18, 2010, “Due to (her) insubordination towards leadership and for other legitimate business reasons,” according to court documents.

In the company’s appeal, lawyers argued that Clapp was treated more favorably than other employees when she was fired.

Appeals Court Judge Paul J. Kelly, after reading the petition from the mine, decided the administrative law judge’s 66-page decision was correct.

“We find substantial evidence to support the ALJ’s finding of discrimination and decision to award full back pay,” Kelly wrote in the decision. “In addition, the penalty imposed was not excessive or an abuse of discretion.”

A spokeswoman for the company did not return requests for comment by press time.

Cloud Peak Energy has until Dec. 31 to petition the court to reconsider its decision.