                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-4016
                                   ___________

Gabel Stone Company, Inc.,               *
                                         *
            Petitioner,                  *
                                         *
      v.                                 *   Petition for Review of an Order
                                         *   of the Federal Mine Safety and
Federal Mine Safety and Health           *   Health Review Commission
Review Commission;                       *
Secretary of Labor, on behalf            *
of John Noakes,                          *
                                         *
            Respondents.
                                   ___________

                             Submitted: September 13, 2002

                                 Filed: October 7, 2002
                                  ___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges,
      and BOGUE,1 District Judge.
                                ___________

McMILLIAN, Circuit Judge.

      Gabel Stone Company (the company or Gabel Stone) petitions for review of
a final order of the Federal Mine Safety and Health Review Commission (the
Commission) affirming the decision of an administrative law judge (ALJ) finding that

      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
the company had discriminated against John Noakes by discharging him for engaging
in protected activity, in violation of 30 U.S.C. § 815(c)(1). We affirm the
Commission's order.

       Gabel Stone is a small mining company owned and operated by Gary Gabel.
Noakes started working for the company in March 1998. In November 1998, he filed
a confidential safety complaint with the Mine Safety and Health Administration
(MSHA). See id. at § 813(g). On November 17 and 18, 1998, MSHA inspectors
traveled to the company to investigate the complaint. When they gave Gabel a copy
of the complaint with Noakes's name redacted, Gabel asked who had filed it, but told
the inspectors he knew who had filed it and would fire the complainant. When Gabel
saw Noakes, he handed the complaint to him, saying it might be his. During the
inspection, Gable again asked the inspectors who had filed the complaint and again
stated he would fire the complainant. The inspectors told him not to do so because
the complainant had a right to file the complaint. In addition, they gave Gabel a book
about miners' rights and told him to call Charles Sisk, an MSHA supervisor. In a
telephone call to Sisk, Gabel stated he knew Noakes had filed the complaint and
would fire him for filing it. Sisk warned Gabel that Noakes could file a
discrimination charge if he was discharged for filing a complaint. On November 18,
Gabel told the inspectors that Noakes was "going to lose his job," but "might have to
wait a while, a week or two." After the investigation, the inspectors issued eight
safety citations.

       On November 30, Gabel told Noakes to look for another job. On December 3,
Gabel told Noakes that there was no work for him, but to keep checking. Between
December 3 and 9, Noakes called the company four times, but was told there was no
work. When Noakes called on December 6, Gabel told him to turn in his uniform and
pick up his final check the next day, which he did. Later that month, Gabel informed
Sisk that Noakes had quit.



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       Noakes then filed a discrimination complaint with the MSHA, alleging that he
had been discharged for protected activity (filing the safety complaint). At a hearing
before the ALJ, Gabel testified that he had fired Noakes for poor performance and
poor attitude. The ALJ found that the company's purported reasons for the discharge
were pretextual and that Noakes had been fired for engaging in protected activity.
After considering additional evidence on damages, the ALJ awarded Noakes back pay
of $9,157.50, rejecting the company's argument that Noakes had failed to mitigate
damages by enrolling as a full-time evening college student. The ALJ also assessed
a civil penalty of $5,000.00. The Commission affirmed the decision.

       Contrary to the company's argument on appeal, substantial evidence supports
the ALJ's finding of pretext and discrimination. Indeed, abundant evidence supports
the findings. In addition to Gabel's repeated statements that he would fire the
complainant and his belief that the complainant was Noakes, as the ALJ noted, there
was no documented evidence that Gabel had warned or counseled Noakes about poor
performance or attitude or had taken disciplinary action against him; Gabel had not
told Noakes the reason for the discharge; and Gabel falsely told Sisk that Noakes had
quit.

       Also without merit is the company's argument that the ALJ erred in failing to
deny or reduce Noakes's back pay award. Although after his discharge Noakes
enrolled as a full-time evening college student, he fulfilled his burden to show that
he made reasonable efforts to find available suitable full-time positions. Noakes
submitted evidence that he had received unemployment compensation, which
required him to search for gainful employment on a consistent basis, and food stamps,
which required him to register with a work search company. The evidence shows that
Noakes's status as an evening college student did not interfere with his efforts to find
full-time work during normal working hours. Indeed, he eventually found a full-time
day job, while attending night school. We note that, despite opportunities to do so,



                                          -3-
the company offered no evidence on mitigation. It did not request a supplemental
hearing on the issue nor depose Noakes on the issue.

      We have considered the company's arguments concerning discovery and
evidentiary matters, and they are without merit. Because the Commission's decision
is supported by substantial evidence, we affirm. See 8th Cir. R. 47B.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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