A mine employee sought temporary economic reinstatement after filing a discrimination claim over alleged safety issues, but a judge has ruled physical reinstatement is the only available remedy.

Cheryl Garcia resigned as an industrial hygienist at Veris Gold U.S.A., Inc.’s Jerritt Canyon Mill in Nevada alleging she faced hostility from management. She filed a discrimination claim with MSHA. In July, Administrative Law Judge David Simonton ordered Veris to put Garcia back to work while her discrimination case proceeded through litigation.

But, going to bat for Garcia, MSHA objected, contending Garcia faced increased hostility from the assistant mill manager, who had recently been promoted to mill manager. The agency asked Simonton to economically reinstate Garcia by directing the company to pay her wages and benefits rather than have her return to work. Veris objected.

MSHA argued that the relevant discrimination provision of the Mine Act gave Simonton the authority to order economic reinstatement. In a decision issued August 22, the judge disagreed. Quoting directly from the statute, Simonton said the language indicated physical reinstatement was the sole remedy. He added that he could not find, nor could MSHA identify, a single instance where the Federal Mine Safety and Health Review Commission granted economic relief over an operator’s objections.

The agency pointed out a 2011 case in which a judge had economically reinstated a miner over his objections.

However, Simonton dismissed it, saying evidence in that case indicated there was a potential for workplace disruption if the complainant returned to work. Garcia’s allegations of hostility were in dispute, though, because Veris said it had investigated Garcia’s allegations about the mill manager and had found them to be meritless. Simonton also noted that MSHA had offered no independent corroboration of Garcia’s contentions.

Paraphrasing from the 2011 case, Simonton commented, “[A]n order of temporary economic reinstatement without the operator’s consent would deprive Respondent of the labor it generally receives during temporary physical reinstatement.”

He said Veris had acted in good faith by proposing a physical reinstatement plan whereby Garcia would get her old job back and receive full pay and benefits. However, she had said no, instead requesting part-time weekend work on a four-week trial basis while she continued work at her current job.

In striking MSHA’s reconsideration motion, Simonton also directed the two sides to continue negotiations on his temporary reinstatement order while continuing a discussion to settle Garcia’s claim.

On a procedural matter, Simonton said he would normally have barred MSHA’s motion because it was filed late,  violating a Commission rule. Instead, he agreed to consider it because the agency had alleged Garcia would face increased hostility as a result of the mill manager’s promotion.